Harrell v. Morris

This suit was brought by the appellee against the appellant in the district court of Lampasas county to recover 25 acres of land, the plaintiff claiming under the James Easley, and the defendant under the Daniel Stanley original surveys. The question tried was as to the true boundary between these two surveys. The case was tried by the judge, and judgment was rendered for the plaintiff. The Stanley survey was made in 1840, and the Easley not earlier than 1844. The Stanley is south line of the Burleson, survey, the north line of the Stanley calling for the south line of the Burleson, both of the being 2,688 varas square, and containing each 1,280 acres of land. The Burleson was survey in 1838 The Easley calls to begin at the S.E. corner of the Johnson survey (the latter being 2,886 varas square) and in the west line of the Stanley; it then calls to run with the west line of the Stanley to its S.W. corner, and then with its south line 1,540 varas, making an `L'. It has the old Johnson the north, and the Reese on the west, in part. The Reese is south of the Johnson. A part of the Easley is then between the Reese and the Stanley. The Stanley begins at the S.E. corner of the Burleson, and calls for its bearing trees in the west boundary of the Klein, runs S., 19 E., passes the S.W. corner of the Klein, and at 2,688 varas, a stone for corner; thence S., 71 W., 2,688 varas, to a mound; thence N., 19 W., to the S.W. corner of the Burleson survery, calling for its bearing trees, a black jack, N., 38 W., 20 varas, and a post oak, N., 66 W., 5 varas; thence with the south line of the Burleson 2,688 varas to the beginning. The Easley begins at the S.E. corner of the Johnson, calls for bearing trees, a black jack and a post oak, the bearing trees of the Johnson corner being two live-oak trees; it then runs with the west line of the Stanley, as before stated, to its S.W. corner, and then with the Stanley south line, 1,514 varas; thence S., 19 E., 2,432 varas to a stake; thence S., 71 W., 2,500 varas, to a mound; thence N., 19 W., passing the S.E. corner of the Reese, and on the the N.E. corner of the same, 4,718 varas, to the south line of the Johnson; thence N., 71 E., 986 varas, with the south line of the Johnson to the beginning. The Johnson calls for the S.W. corner of the Burleson as its beginning corner, it then runs S., 19 E., 190 varas, to its own S.E. corner, where it calls for the two live-oak trees; thence S., 71 W., 2,885 varas; thence N., 19 W., 2,886 varas; thence N., 71 E., to the N. W. corner of the Burleson; thence S., 19 E., with *Page 626 the west line of the Burleson to the beginning. The S.E. corner of the Johnson (the beginning corner of the Easley) is found 210 varas S., 19 E., from the intersection of the Burleson south and west lines as run by Motley, and 34 varas N., 71 E. The Stanley line as fixed by the trial judge is still east of this point. The south line of the Stanley was marked from its S.E. corner, over half its length, through the timber, and up to where it entered the prairie, and at its termination were some scattered rocks; a mound was here called for. There is some conflict in the evidence about the locality of the west line of the Stanley, but there was a line found running from some scattered rocks in the prairie `which showed to have been brought there for a purpose.' N. 19 W. to the south line of the Burleson, and near this point, but 24 varas south of the Burleson line, were found the stumps of a post oak and a black jack `corresponding very nearly' with the witness trees called for the S.W. corner of the Burleson. The line from the scattered rocks was old, and was marked both ways, as if run both ways, and the rocks were at the correct distance from the S.E. corner of the Stanley, as run by course and distance. This line intersected the Burleson south line, according to the Surveyor, Motley, appointed by the court to make the surveys; but other evidence tended to show that the stumps were the bearings of the S.W. corner of the Burleson, and that there was an old line extending on from this point N., 19 W., corresponding with the Burleson west line. The plaintiff claimed this as the Burleson line and corner. The defendant claimed both the corner and line of the Burleson to the west. Motley testified that the N.W. corner of the Burleson was found on the ground, and the west line was a marked line, and that the south line was well marked. He established the S.W. corner of the Burleson at the intersection of these two lines, but the bearing trees were not at this point, nor was there any line running S., 19 E., from the point for the Johnson or the Stanley where defendant claimed the line of the Stanley to be. We cannot see but that the court had ample evidence to justify the conclusion that the Stanley west line was the old line running from the scattered rocks in the prairie, to the intersection of the south boundary of the Burleson, where the black jack and post oak stumps were found. Burleson pointed this point out to one of the witnesses as his corner, and claimed the old line N., 19 W., from this point as his west line many years before; and at this time one of the bearing trees was standing and marked. The evidence is conflicting, however, as to the locality of this corner and line. It is certain, however, that the Johnson S.E. corner is not on a line S., 19 E., from this point; it is S., 19 E., 210 varas from the point where Motley and defendant place the Burleson S.W. corner, and 34 varas N., 71 E. The west line of the Stanley being found on the ground according to the conclusion of the trial judge, the Easley must run to this line, unless there is some other controlling call that will prevent it. The Easley calls for the Johnson S.E. corner as its beginning in the west line of the Stanley, but it does not call for the same kind of witness trees. If we take the S.E. corner of the Johnson as the correct beginning, and then run S., 19 E., for the first line of the Easley, this line will be 109 varas from the marked line of the Stanley, and there will be a vacant strip of 50 acres between the lines, 2,280 varas long. To run the Stanley out to this corner of the Johnson would give it the same excess of 50 acres at this point. The Stanley is fixed by its marked line and cannot be extended. The Stanley line was a more material call than the Johnson corner. The initial corner called for in a survey cannot be made to control a call for a marked line when the line answers best to the rest of the description. "The corner of a survey," says Chief Justice WHEELER, `though a good call and one which may control mere course and distance, is not necessarily a more certain and material object than a marked line or marked trees called for in a grant.' Duren v. Presberry, 25 Tex. 517. Where two descriptive calls *Page 627 are given in a survey, both of equal dignity, as a call for a corner and a marked line, preference will be given to that one which is most consistent with the intention to be derived from the entire description. It is highly probable the surveyor of the Easley was not at the Johnson S.E. corner as he did not give its witness trees; and it is not unreasonable to conclude he was on the Stanley line as it is marked both ways; and it is shown by the field-notes that the two surveys on this line were run reverse courses. While we find ample evidence to sustain the judgment of the court below in establishing the Stanley and the Easley boundary as therein adjudged, we do not by such conclusion pretend to indicate that the Burleson S.W. corner is at the termination of such line on the north, or that the court could establish the Stanley and Easley line in this suit beyond the boundary of the 25 acres in dispute. We are of opinion the judgment should be affirmed as to the boundary of the land in controversy. WILLIE, C. J. Report of commission of appeals adopted, and judgment affirmed. *Page 583