Boynton Lumber Co. v. Houston Oil Co. of Texas

* Application for writ of error pending in Supreme Court. *Page 750 This was an action of trespass to try title and for damages for cutting timber growing upon the land herein sued for, where the appellee, the Houston Oil Company of Texas, was plaintiff below and the Boynton Lumber Company et al., appellants, were defendants, and the cause was tried before the court without a jury. Judgment was rendered for the Houston Oil Company of Texas for the land in controversy and for $364.96, with legal interest thereon, for damages for cutting timber from the land, from which judgment the Boynton Lumber Company et al. have appealed, and upon proper bill of exceptions and assignments of error bring this cause to this court for determination. The matters at issue in this cause can and should be classified as follows: First. The location of the boundary line between the W. A. Armstrong survey and the Richard Sims league. Second. The boundary line between the south part of the N. H. Cochran survey and the said Richard Sims league, the appellee owning the Armstrong and Cochran surveys and the appellants that portion of the *Page 751 Sims survey not in conflict with the Armstrong and Cochran surveys, therefore the questions to be determined by the court below, which are now before us for review, relate to the locations of the north and west lines of the Sims league. The map marked "A" is made a part of this opinion, and is here inserted to more fully explain the issues herein involved. [EDITORS' NOTE: MAP IS ELECTRONICALLY NON-TRANSFERRABLE.] The John T. Lewis is the oldest survey of the several surveys shown by this map. The Richard Linville league was located on June 30,1835, and the Sims on the same day by the same surveyor, the N. H. Cochran was surveyed April 24, 1838, and the W. C. Armstrong in 1841. The solid lines (as shown by the map) on the lines on the west and north of the Sims league show their location as *Page 752 found by the trial court, which are In accord with the appellee's contention, the dotted lines on the north and west showing the lines contended for by the appellants as the boundary lines of the Richard Sims league. The northeast corner of the Sims league is an established corner, and is agreed upon by all the parties to this litigation as being the original northeast corner. Appellants contend that the Sims league should be located by beginning at the point agreed upon as the northeast corner and running from that point the course and distance as called for in the field notes, while the appellee contends that the lines are as shown to have been originally run by the surveyor locating the Sims league, and, the trial court having found in accordance with such contention, such judgment, if upheld by the evidence, should be affirmed. Under appellants' assignments of error Nos. 1, 2, and 3, the judgment of the trial court is attacked as being contrary to the law and evidence, under the contention that, the northeast corner of the Sims league being well defined and agreed upon, and no other corners on said survey being established, the Sims league should be located from that corner by following the course and distance as called for in the original field notes, and as thus located the land in dispute would be on the Sims league. The rule for determining suits involving boundary lines is to determine, first, whether or not the lines of the survey sought to be located were actually traced upon the ground at the time the survey was made, and to find and identify such lines, following in the footsteps of the surveyor who located the survey, and the corners, marks, and natural objects found on the ground must control, and should control, course and distance; the intention and purpose being to locate and identify the survey as actually made upon the ground. State v. Palacios, 150 S.W. 229; Byrd v. Langbein, 135 S.W. 206. If the judgment of the trial court is supported by the evidence, although it may be conflicting, it is the duty of this court to affirm same. It will be well at the outset to bear in mind that the rule is that for a marked line or corner to control a call for course and distance it must be identified upon the ground. Goodsan v. Fitzgerald,40 Tex. Civ. App. 619, 90 S.W. 901; Fagan v. Stoner, 67 Tex. 287,3 S.W. 44; Bingham v. McDowell, 69 Tex. 100, 7 S.W. 315. It also must be borne in mind that calls in field notes should be followed in the order given, unless the call for a more recent line is more definitely located, and shows more certainly the footsteps of the surveyor. Daughtrey v. McCoy, 135 S.W. 1060. The facts and conclusion of law made by the findings of the trial court are as follows: "(1) From the agreement made in this case, it appears that the land in controversy was claimed by the plaintiff to be on the W. C. Armstrong survey, and the N. H. Cochran survey, while the defendants claim such land to be located entirely on the Richard Sims survey, so that the issue in the case is as to the correct west boundary of the Richard Sims and the east boundary of the Nathaniel Cochran, said surveys being adjoining; and as to the north boundary of the Richard Sims and the south boundary of the W. C. Armstrong, said surveys being contiguous and adjoining. The Richard Sims is the oldest of the three surveys. "(2) I find that the true northeast corner of the Richard Sims survey has been located by the evidence in this case, and that all the witnesses, both for the plaintiff and the defendants, agree to the location, and that the original bearing trees are on the ground. "(3) I find that the plat introduced in evidence by the defendants made by the witness R. W. Priest correctly shows the work done by him on the ground, and shows the relative position of the west boundary line of the Sims, and I find that at the corner treated by the witnesses for plaintiff as the southwest corner of the Richard Sims (the true southwest corner of the Richard Sims being the beginning corner of said Sims) there is now standing, at the proper course and distance, a magnolia tree, a block from which was cut out and introduced in evidence in the case, and showed, judging the diameter from the block, to have been about 12 or 14 inches in diameter. Said block itself appears to have been cut out to a depth of about one-third of the diameter of said tree, and said block itself showed about 50 rings, and showed to be old enough for the original bearing tree; but no marks were shown to have been upon it. "(4) I find that the southwest corner, as claimed by the plaintiff, is at the distance of 100 varas from Cow creek, and that Cow creek is crossed on the course as called for in the Linville field notes, and that said creek is running at the course called for in said notes where said line crosses it, the call in the Linville field notes from this corner, which the Sims field notes begin at, `thence N. 80 E. Cow creek, 15 vrs. wide, course southeast.' "(5) I find that the southwest corner of the Sims league as claimed by the defendants is west 100 varas from this point, plus distance between plaintiff's southwest corner and defendants' southwest corner as shown by the plats. "(6) I find that the M. B. Lewis league on the west and south of the Richard Sims and the John T. Lewis on the west and south are both senior surveys to both the Linville and Sims, and are called for in the Richard Linville original English field notes, and that the Richard Linville field notes and the Richard Sims field notes were made by the same surveyor on the same day. "(7) I find that, extending the west boundary line of the Sims league as claimed by the plaintiff to a point south of the course called for in the Linville field notes, there is an old marked line old enough to be the original boundary line between the Martin B. Lewis and the Linville leagues, and that the southeast corner of the Martin B. Lewis league is located on this line, as is the northwest corner of the Linville. The map shows the east boundary of the Martin B. Lewis to strike the north boundary of the John T. Lewis. I find this line to be the west boundary line of the Linville and west boundary line of the Sims. "(8) I find, further, that the northeast corner of the John T. Lewis is located east of this last-described corner at a distance called for in the field notes and on the course called for ; the field notes on the Linville being patently reversed therein as to this call, calling S. 80° E. 120 varas, with north boundary of the John T. Lewis to corner being M. B. Lewis southeast corner. "(9) I find that the subdivisions on the *Page 753 Martin B. Lewis and on the John T. Lewis and Richard Sims of these surveys are made recognizing the west boundary line of the Richard Sims as located by the plaintiff, and that there are no corresponding subdivisions recognizing as the west boundary of the Richard Sims league line claimed by the defendants, and I find that the plat introduced in evidence by the plaintiffs, showing the subdivisions on the Martin B. Lewis and John T. Lewis and Richard Sims, correctly shows them. "(10) I find that the west boundary line as claimed by the plaintiffs for the Sims is the line that has been generally recognized by the persons in that country, and generally reputed and understood to be the true west boundary line of the Richard Sims league. "(11) I find that beginning at plaintiff's southwest corner there is an old marked line running to the corner established by plaintiffs as the northwest corner of the Richard Sims league, but that this line runs north 12 degrees and 45 minutes west, as shown on the plat introduced, and that in running this course, sometimes the line is on one side and sometimes on the other; that said line continues at this course till at 2,161 varas it crosses the southeast corner of the Nathaniel H. Cochran as claimed by plaintiff; and from this point on in order to trace the line on the ground, it takes a course north 10 degrees, 50 minutes west. "(12) I find this line to have been marked for at least 48 years, and that it is the oldest line for the west boundary of the Sims, that could be the west boundary of the Sims, of any line in the country around. "(13) I find that at the northwest corner, as located by the plaintiffs, there is a post oak which fits very well for the one of the bearings called for in the Sims notes, and that there is evidence of a pine that stood south 70° E. 2.6 varas. I find, further, that the Sims notes called this tree to be an oak, while the Cochran field notes called it to be a pine. I find said pine to have been the original bearing tree. "(14) I find that there is an old corner on plaintiff's west line of the Sims, where the division line of the Sims league crosses said line, as old as said division line itself. "(15) I find that at the point where the division line of the Sims league would cross the west boundary line of the Sims, as it is placed by defendant's surveyors, if said division line be extended, there is no corner and there are no old marks on this line after it passes the corner last mentioned. "(16) I find that there is not shown by the evidence in this case any line for the Cochran east boundary line unless that shown by the plaintiffs as the east boundary line of the Cochran and the west boundary line of the Sims is in fact the boundary line of the Cochran, and I find that the subdivisions in the Cochran league have recognized the line claimed by the plaintiffs as being the true boundary line between the Cochran and the Sims, and that there are, on the other hand, no subdivisions in the Sims or the Cochran. "(17) I find that the Cochran field notes call to cross Thickety creek, a branch of Cow creek, at a distance of 460 varas from their southeast corner, and that the line of the plaintiff crosses said creek at a distance of 440 varas, and the line of the defendants could not cross it at a distance of less than 866 varas from the south line of the Cochran league, and I find that the south line of the Cochran league is plainly marked on the ground. "(18) I find that the corner located by the plaintiff as the southeast corner of the Richard Sims league and the northeast corner of the Richard Linville has been recognized generally as such corner, and that the D. S.D. Moore league and the David Hughes pre-emption corner at this corner. There is no evidence that any of the surveys using the northeast corner of the Richard Linville and the southeast corner of the Richard Sims have for such corner the point marked by defendants as their southeast corner. There is no evidence of any lines leading southwards from the corner claimed by the defendants as the southeast corner of the Sims, and the evidence does show that there are old lines leading off from plaintiff's southeast corner in right course for the Linville, D. S.D. Moore, and the David Hughes, which have been identified. "(19) I find that the line connecting the true northeast corner of the Sims and the southeast corner of the Sims is the line claimed by plaintiff, and is the true southeast corner. "(20) I find that there is a plainly marked old line where the plaintiff claims the Nathaniel H. Cochran south boundary line to be, and that there is no line running north and south from the point where the defendant's line crosses the line located as the south boundary line of the Cochran. "(21) I find that at a distance of about 25 varas beyond the distance of 5,000 varas called for in the Sims notes as the south boundary from the southeast corner of the Sims as located by defendants, there is a magnolia tree large enough to have been the original tree called for in the Sims field notes at the southeast corner. "(22) I find that there is no line running from the plaintiff's southwest corner N. 10° W. as called for in the Sims notes, and I also find that there is no line so running from the southwest corner as claimed by the defendants. "(23) I find that from the Sims northwest corner the Cochran calls for another 1,861 varas east on the north line of the Sims, but that this corner is located, as a matter of fact, 2,114 varas from the northwest corner of the Sims, and there is a line running north 10 west from that point, and at about 1,500 varas said line crosses a branch, and that the said Cochran field notes call for such a line and for the branch at 1,530 varas and I find that there is no evidence of any other line running from the north boundary line of the Sims crossing said branch. "(24) I find at the northwest corner of the Sims, as claimed by the defendants there is a bay tree with marks some 10 or 12 years old, and that there formerly was an old stump hole which would fit fairly well for one of the bearing trees called for, and that said corner was established as a corner of the N. B. Lewis 160-acre claim on the Cochran many years subsequent to Cochran's location. "(25) I find that if a line were run from the recognized northeast corner west for a distance as called for in the Sims notes, it would fall short 101 varas of defendant's northwest corner, and would pass the plaintiff's northwest corner at a distance of about 223 varas. "(26) I find that the length of the south line of the Sims from the southeast corner and the southwest corner of same, established by plaintiffs, is 4,880 varas, and the call for said line in the Linville notes is as follows: Running from the southwest corner; `thence north 80 degrees east 100 varas Cow creek, 15 varas wide, course southeast, 4,860 varas, post and mound'; and that the call in the Sims notes for this line is 5,000 varas. "(27) I find that the west line of the plaintiff and the west line of the defendants of the Sims survey fit reasonably well and call for the branch of Cow creek in the Sims notes, but that plaintiff's line crosses Cow creek many times that it does not call for. "(28) I find that fitting as a bearing tree, the magnolia found by the witness Priest at his southwest corner that there are two or three blazes going north 10 west from there, but it does not appear from the evidence whether they are as old, or older, than the marks on the plaintiff's west line, but they are old marks. "(29) I find, from the original field notes of the Richard Sims and the Richard Linville, that *Page 754 they call for exactly the same bearing trees for the Linville northwest corner and the Sims southwest corner, its beginning corner, except that the Sims calls for a magnolia 10 inches in diameter, south 85 degrees east 10 varas, and a hackberry 8 inches in diameter bearing south 64 degrees west 5.2 varas; while the Linville calls for a magnolia 10 inches in diameter south 55° east 10 varas, and a beech 8 inches in diameter south 64° west 5.2 varas, according to the field notes of the said survey introduced in evidence in the trial of the case of Kirby v. Williams while from the notes introduced in the case of Houston Oil Company v. Boynton Lumber Company it appears that the Sims notes do not call for a hackberry, but call for a beech, as in the Linville notes, the only difference between these Sims notes and the Linville notes being the difference of south 55° east in one of them, and south 85° east in the other, as noted above. "(30) I find that the northwest corner, taken by defendants as the true northwest corner, was established in recent years as the corner of Mr. Martin Lewis subdivision on the Cochran, and that it was established for him by Mr. Halliday. "(31) I find that the west line, claimed by the plaintiff, crosses Thickety creek, a branch of Cow creek, but one time, at a distance of about 3,100 varas; that it then goes up the creek on the west side and finally crosses on the north side of the tramroad at about the distance called for in the Sims notes; that when it crosses, the course of the creek is east. "(32) I find that the total distance of the south line of the Sims from the defendant's southeast corner to the magnolia as his southwest corner is 5,028 varas, and that the southeast corner of the Sims as located by defendants is 368 varas west of the southeast corner as located by the plaintiff, and that defendant's southwest corner is 408, varas west of the southwest corner of plaintiff. "(33) I find that there are no marks between the northwest corner are claimed by the plaintiff and the northwest corner as claimed by defendants old enough to have been the original marks. "(34) I find that testimony as to the amount of timber cut by the defendant, Williams in the case of Kirby v. Williams, and by the other defendants in that case, is undisputed, and is as testified to by plaintiff's witnesses; and that the amount of timber cut in the case of Houston Oil Company of Texas v. Boynton Lumber Company is as shown by the memorandum introduced by Mr. McMahon, which shows that there was 130,165 feet cut from the conflict with the Sims and Cochran, and that there was 15, 820 feet cut from the conflict between the Sims and the Armstrong. "(35) I find that the timber in these conflicts was cut by defendants in good faith, believing, and having reasonable grounds to believe, that said timber was located on lands owned by them. "(36) I find, as agreed, that the market value of such timber as that cut, at the time it was cut, was $2.50 per thousand. "(37) I find that the other bearing trees called for at the southwest corner of the Sims, if placed at the course and distance from the corner called for in the field notes from the southeast corner located by plaintiffs, would now be in the creek, but I find that the evidence shows that the banks of the creek have washed away since said field notes were made, and that said bearing trees could have been, and probably were, located from plaintiff's southwest corner, the course and distance called for in the Sims southwest corner. "(38) I find the southeast corner of the Sims and the northeast corner of the Linville to have been identical. "(39) I find that the northwest corner of plaintiff is 4,020 varas south, 80 west, from Big Cow creek, and that the field notes of the Sims call this distance to be 4,050 varas. "(40) I find that the true north line of the Richard Sims begins at the corner located by the plaintiff as the northwest corner, and runs according to the old marked line, and which I find is shown north 80 degrees _____ until it reaches Big Cow creek, after which on this course no marks can be found, but that from the northeast corner to Big Cow creek, striking Big Cow creek above the last-mentioned line is another old line which I find to be the continuation of the original north line. "(41) I find that the timber cut by the defendants, Boynton Lumber Company and others, was north of this true north line, which is also the south boundary of the Armstrong, and that said timber was in fact located on the Armstrong survey. I find that on the west the timber cut was on the Cochran league, and not on the Sims. "Conclusion of Law. "It having been agreed that the plaintiff had title to the Cochran and Armstrong surveys, and the case by the agreement having been made one of boundary merely, I find that plaintiff is entitled to recover the land sued for. I find that plaintiff is entitled to recover for the timber cut at the market value, at the time cut, of stumpage. A. E. Davis, Judge Presiding." Applying to these findings the law herein above set out, we are, after a careful consideration of the testimony in this case, of the opinion that the evidence supports the findings of the trial court. Appellant by his fourth assignment of error attacks the trial court's ninth conclusion of fact — "because the trial court erred in giving probative force to subdivisions of other surveys as controlling the location of the Sims league, because the Sims league, under the evidence, was located upon the ground definitely, according to its own calls and field notes." In our view it is not necessary to consider this assignment, because even if the same was error, it was not prejudicial to the appellants, there being sufficient evidence in the record to show the location of the original north and west lines of the Sims survey as they were run by the surveyor originally in locating said survey. Finding no error in the judgment of the lower court, the judgment is in all things affirmed.