Boydston v. Sumpter

HENRY, Associate Justice. —This was an action of trespass to try title, brought by appellee for the possession of three acres of land. In the petition the land was first described by metes and bounds and alleged to be a part of the S. Mitchell survey, after which the petition contained a statement that the controversy “is whether the parcel of land above described is in the Milton Gregg survey or the S. Mitchell survey.” The words quoted may be treated as surplusage. The defendant suf [405] fered no injury from the court overruling his exception to the petition on • that ground. A witness for the plaintiff pointed out, upon a plot shown him, the northwest corner of the Mitchell survey, and testified with regard to said corner: “I found a corner that appeared to be an original comer, and I found that it corresponded with other corners on the ground that were called for.” The defendant objected to the testimony on the ground that “ it was not proper to bring in a surveyor or anybody else and have him to testify with reference to what he found that was called for unless the papers that show the callings are fi-rst put in evidence.” This objection to the order of introducing the evidence was properly overruled. The witness described very fully the examination of the lines and corners made by him, and we think he was properly allowed to state the relation borne by the disputed corner to others. The northeast corner of the Mitchell survey was known. The course called for in the patent from that corner is “south 60 degrees west.” At the northwest corner the call is for “a stake, from whence a willow bears north 63 degrees west 98 varas.” Neither the stake nor bearing tree can be now found. The northwest corner of the Mitchell described by plaintiffs witnesses is marked by a stone, which they stated had been recognized as the true corner for a period of more than thirty years. A line run from the northeast corner of the Mitchell survey to this stone will be south 61 degrees west instead of south 60 degrees west, as called for in the patent, and the land in controversy is in the space that would be included between the diverging lines. The court charged the jury that “in determining the location of the line between said surveys, you will be governed by the calls in the patent to S. Mitchell, and if the evidence satisfies you as to the" true location of said line as originally run and marked by the stakes and bearing tree mentioned in said patent, you should be governed by such line. If, however, the location of said stakes or bearing tree, as they'existed when the patent was issued, are not satisfactorily established by the evidence, you will then be governed by the course and distance of said line as called for in the patent.” We think that this charge correctly presented the issue, and that the charges asked on the same subject were properly refused. We find no error in the proceedings, and the judgment is affirmed. Affirmed. Delivered November 11, 1890.