Buford v. Bostick

Moore, Chief Justice. Conceding that the time of filing appellants’ certificate and field-notes in the general land office, and that they had not been subsequently withdrawn therefrom, are not facts which may be certified by the commissioner, (Paschal’s Dig., art. 3806,) we think there was certainly no such manifestation of “ weakness or want of skill” on the part of counsel for appellants in relying on the certificate of the commissioner to establish this point in their case, as should have precluded them from a continuance on the ground of surprise on the ruling of the court excluding the certificate offered by them to prove these facts, or warranting the refusal of a new trial, when it must have been evident that the failure of appellants to prove the return of the certificate and field-notes to the general land office in the time prescribed by law, was, of itself, under the charge given the jury, fatal to their case, however meritorious the cause of action may be, although it cannot be doubted, in view of the certificate of the commissioner, that these essential facts can be easily proved on another trial. That a new trial may be granted on the ground of surprise, even when such surprise is occasioned by a correct ruling of the court, and although negligence may he properly imputable to his attorney, (if the party asking it has a meritorious cause of action and gross injustice will otherwise be done him,) is well settled. (1 Grah. & Watt, on New Trials, 187; 2 Grah. & Watt., 675.) A new trial should also have been granted to enable appellants to avail themselves of the newly-discovered evidence of the witness G. W. Helms. Although Helms was examined as a witness by appellants, it appears from his as well as Buford’s affidavit that he refused, previous to the trial, to inform [376] appellants as to the facts within his knowledge bearing upon their case, except in regard to matters about which he was directly and particularly interrogated, and then he endeavored to communicate to them as little as possible as to what he knew in regard to the matters in controversy. Certainly his evidence, as given in the application for a new trial, if worthy of belief, is of the utmost importance, and would seem to be of itself sufficient to identity and fix appellants’ survey upon the locus in quo as claimed by them. In the absence of anything which should have led appellants to suppose that this witness had seen the marked trees called lor in their survey previous to the origin of the adverse claim to the land, or prior to the mutilations of the original marks upon the trees, appellants cannot be charged with negligence in not inquiring directly of Helms whether he had seen the trees in question and what he knew in regard to the original marks upon them. The court correctly instructed the j ury that “ the identity and locality of land are usually determined by the calls in the grant.” That “ often one grant calls for another survey, and where this is done the identity and true locality of the survey called for often become a material question, and its locality should be taken into consideration; and it often affords material aid in determining the locality of the land in dispute.” But certainly it is much too strict a rule to hold that, where another survey is called for, the identity of the survey thus called for must be shown by its field-notes, of record in the office of the county surveyor, to conform in every particular with the calls in the survey the identity of which is in question. This would be to suppose that surveyors, in writing out their field-notes or reports of surveys, are much more careful and accurate than in the very nature of things could be expected of them, and certainly beyond what every day’s experience shows us they are. In looking for the’ survey called for, we need not, in all instances, expect to find one corresponding in every particular with the calls; or that references to it, generally [377] made by the surveyor from memory and without an examination of its record, should be more accurate than the calls for the natural or artificial objects referred to by him for the like purpose of identity. It is not essential to show the existence of a survey in all respects in strict and literal accord with such a one as called for, but merely that the locality of the survey in fact called for, though imperfectly or inaccurately designated, shall be identified and pointed out with reasonable certainty; and to enable us to do this we may not only look to the record of the supposed survey, but also to the official maps and records of adjacent surveys, as well as all other pertinent and legitimate evidence conducing to the desired conclusion. Appellants’ survey calls to begin “ at a stake in prairie the southeast corner of a survey in the name of James Bussell, runs south through a prairie thirteen hundred and forty-three varas, a stake,” &c. Bow, conceding that the records of the county surveyor show no such survey as is here called for “in the name of James Bussell,” and that appellants’ survey cannot be otherwise ascertained, or identified, must they therefore lose their land? To say that they must, would bring in question many titles on which the owners now rest in security, especially in those sections of the State where lands are to a great extent located and identified by their calls for other and connecting surveys. Certainly no one who has given the least practical attention to our land system, or to the locating and surveying of land under it, but- must know that while most surveyors perhaps enter surveys in the name of the grantee of the certificate upon which the survey is made, yet a contrary practice is by no means infrequent, and often the field-notes show the survey to be made not for or in the name of the grantee of the certificate, but in that of the party claiming and presenting it to the surveyor for location. Although the survey is in the name of the grantee of the certificate, when it is called for in another survey it is quite as often as otherwise called for and designated as the surveyof [378] the party owning the certificate, and for whom the survey was in fact made, or in that of the party owning it, or generally supposed to do so, at the date of the subsequent survey calling for it. Kbw, shall errors or mistakes in the proper calls for connecting surveys necessarily preclude a recovery in trespass to try title, when the plaintiff’s land can only be located and identified by its adjoining and connecting surveys? Unquestionably not. If the recorded surveys fail to identify the survey called for, resort may unquestionably be had to other pertinent testimony which will legitimately tend to do so. As in this case, though no survey in the name of James Bussell can be found which will satisfy the calls in appellants’ field-notes, it may be shown that the survey in the name of Ira Buble was in fact made for James Bussell; that at the date of appellants’ survey this survey was generally called and known by surveyors and those living in its vicinity as the James Bussell survey. When these facts are known, all doubt and uncertainty as to the survey upon which appellants’ survey is to begin are at once dissipated, and its proper location and identity, if the Buble or Bussell survey is known, can be readily and satisfactorily ascertained. Other important questions are presented by the record, but as they have not been fully discussed by appellants’ counsel, for whom alone an appearance has been made in this court, and as they may not recur on another trial, we refrain from comment upon them. The judgment is reversed and the cause remanded to the District Court, that another trial of it may be there had. Béversed and remanded.