Maddox Bros. & Anderson v. Fenner

HENRY, Associate Justice. Appellants instituted this suit, charging that the following described land was part of the unappropriated public ■ domain of the State of Texas and subject to location and survey'as such; that they had requested the defendant Fenner, as county surveyor of Bee County, to survey the same by virtue of a valid land certificate tendered him, which he had refused to do, and praying for the writ of .mandamus to compel him to make the survey. The land is described in their petition as follows: “Beginning at a point on the east boundary line of the M. F. Lewis survey, the same being the southwest corner of a survey made for J. B. Robertson and the most northern corner of J. Sharp survey; thence south 70 east with the south boundary line of the said J. B. Robertson survey 2917 varas to the southwest corner of the William Ryan survey; thence, east with the south boundary line of said William Ryan survey 1462 varas to the northwest corner of the Francisco Dietrich survey; thence south with the west boundary line of said Dietrich survey to the northeast corner of the A. P. Baker survey; thence south 60 west with the north boundary line of said Baker 3275 varas to the southeast corner of the J. W. Hassell survey; thence north 30 west with the east boundary line of said Hassell 1500 varas to the south line of the J. Sharp survey; thence north 60 east with the south boundary line of said Sharp to the southeast corner or the same; thence north 30 west with the east boundary line of said Sharp 2400 varas to the beginning; excluding the W. Stephens survey and any valid files and surveys previously made.” — 287 — The defendants, among other defenses, pleaded that the whole of the land described in plaintiffs’ petition was embraced by the patent to Washington Stevens issued in the year 1846, and therefore not subject to location. The cause was tried without a jury and a judgment was rendered in favor of the defendants. The land granted to him is described in the patent to Stevens as follows: Beginning at the William Ryan southwest corner, and then “to run due east with the Ryan survey 1262 varas to the Francis Deitrich northwest corner, a post bearing from a live oak marked X north 10 east 106 varas; thence south with that survey 1350 varas to A. P. Baker’s corner, a post and mound; thence with that survey south 60 west 1900 varas to Gilford Been assignee’s corner, a mound; thence north 30 west with said survey 1500 varas to corner, a post and mound; thence north 60 east 850 varas to J. Sharp’s corner, a mound; thence north 30 west with said survey 2400 varas, a post and mound; thence south 70 east 2000 varas to J. Skidmore’s southeast corner, a post and moimd; thence south 950 varas to place of beginning;” containing ■800 acres. The statement of facts shows that plaintiffs had title to the land certificate and made application for a survey as alleged by them, and that the surveyor refused to make the survey for the reason alleged in the answer of the defendants, and that the defendant Ellis had title to the land conveyed by the Stevens patent. The surveyor testified that “the plat marked Exhibit B was a correct delineation of the W. Stevens survey as taken from the certified copy of the map of Bee County made in 1879 and furnished by the Commissioner of the General Land Office and in use in Bee County; that said map of Bee County shows no vacant land adjoining the W. Stevens survey, but shows the same as cornering with all the surrounding surveys as called for in the patent, and that the records of Bee County show no vacancy, as claimed by plaintiff; that exhibit B does not show the survey as it is on the ground, but ’exhibit A’ does; that defendant Ellis has possession of all the land on which plaintiffs seek to locate, and had same long before 1887.” Exhibit B, referred to in the evidence, delineates the Stevens and surrounding surveys substantially as follows: (See next page.) — 288 — — 289 — Exhibit A represents the land as follows: It was proved that there are no landmarks, natural or artificial, at the southeast or northeast corners of the Hassell nor on its east line, nor on the south line of the Sharp east of the northeast corner of the Hassell, nor marks ->afcural or artificial at the southeast or northeast corners of the Sharp nor on its east line, nor on the east line of the Simmons, nor on — 290 — the southwest or southeast corner of the Skidmore nor on its south line; that there are no natural or artificial objects on the west boundary line of the William Ryan by which the Stevens survey can be identified upon the ground; that they are all open prairie calls which can only be established by surveys of the respective grants called for in the Stevens patent; that if the Stevens is platted according to calls for adjacent surveys it will contain 2719 acres; that in order to reach Hassell’s southeast corner the distance is 3275 varas instead of 1900 as called for in the third call of the Stevens patent. Substantially plaintiffs propose to limit the Stevens survey to its proper quantity of 800 acres as determined by the courses and distances mentioned in the patent, beginning at the southwest corner of the Ryan survey and following the order of the calls mentioned in the patent, and to appropriate all of the land in excess of the Stevens, when so limited, lying within the boundaries formed by surrounding surveys called for in the Stevens patent not previously appropriated by other surveys. The contention of the defendants is that the courses and distances mentioned in the Stevens patent must be subordinated to its calls for contiguous surveys, which being done there is no vacant land subject to be located. Appellees also in effect contend that even if a proper construction of the Stevens patent by adopting courses and distances should limit it to a survey containing 800 acres, still as the patent also calls for the surrounding surveys all of the land included between such surrounding surveys should be treated as coming within the terms of the Constitution reading, “All genuine land certificates heretofore or hereafter issued shall be located or patented only upon vacant and unappropriated public domain, and not upon any land titled,” etc. We do not think that if by a proper interpretation of the Stevens patent it should be construed not to embrace the land sought to be appropriated by plaintiffs’, it can then be held that the question is affected by the constitutional prohibition. In that event it is not land “titled” within the sense of the Constitution. Appellants successfully contend that unless the person who made the Stevens survey made a gross error as to the distance of the third call and as to the course of the seventh call, he could not have embraced within the lines of that survey all of the land included between the surveys called for. They also contend that “where a patent calls for course and distance the claimant under the patent must be bound thereby, unless the patent in connection with the call for distance mentions natural objects, known objects, or recognized corners or lines which under the circumstances reasonably control distance as called for in the patent.” In the case of Stafford v. King, 30 Texas, 272, this court said: “It has often been said by this court that the general rules are that the location — 291 — should he governed, first, by natural objects or boundaries such as rivers, lakes, creeks, etc.; second, artificial marks, such as marked trees, lines, stakes, etc., and third, course and distance. Of all these indicia of the locality of the true line as run by the surveyor, course and distance, are regarded as the most unreliable.” ' • It is conceded that course and distance may in some instances be entitled to have greater weight attached to them than is permitted by the general rule. Whether or not course and distance shall yield to the unmarked line of another survey which is called for does not seem to be' entirely settled, and probably no general rule on the subject can be safely announced. In the case of Gerald v. Freeman, 68 Texas, 201, it was proved that the lines which called for the unmarked line of another survey were actually run as the law required, and that the surveyor only assumed that he had found the unmarked line of the survey called for as the boundary line, and this court gave preference to the course and distance. In this case we have.no evidence that the lines of the Stevens and the adjoining surveys were not- actually run. In the absence of evidence on the subject the presumption must be indulged that the surveyors actually surveyed all of the lines called for. The sketches from the Land Office introduced in evidence seem to furnish some evidence that the surveys were all made at or near the same time, and if they were the presumption is strengthened that the surveyor who made the Stevens survey knew where the lines of the other surveys called for by it were situated. Except the Skidmore, we find nothing in the record to indicate that notwithstanding their being unmarked lines their position could not then have been ascertained Avith certainty. Indeed, there is nothing in the record tending to shoAv that they may not be uoav ascertained with accuracy, notwithstanding neither their lines nor corners next the Stevens are marked. The Skidmore survey alone of the surveys called for in the Stevens patent seems from the recent Land Office sketch to' be at a different place from where it Avas as placed by the maps formerly in use. As it is placed by the county and Laud Office maps previously in use it too seems to be correctly called for in the SteArens patent. The same observations may be made about some other surveys not called for in the Stevens patent. . When unmarked lines of adjacent surveys are' called for, and when from the other calls of such adjacent surveys the position of such unmarked lines can be ascertained with accuracy, and Avhen in the absence of all evidence as to hoAv the survey Avas actually made there arises a controversy as to whether course and distance or the unmarked line of another survey shall prevail, we see no good reason Avhy the survey line should not be given the dignity of an “artificial object” and prevail over course and distance. — 292 — Delivered January 20, 1891. In the case of Ragsdale v. Robinson, 48 Texas, 398, under a different state of circumstances, a call for a survey was decided .to have precedence over a contradictory call for course and distance. It seems to be conceded that the William Ryan southwest corner, which is the beginning corner of the Stevens, is well identified, and that the first call of the Stevens along the south line of the Ryan is also correct. The calls of a survey may always be reversed, and if this be done in this case the last call in the Stevens patent, or the one 950 varas north from the William Ryan southwest corner, would be entitled to as much regard as the first or east call from that point. The effect of reversing the calls of the Stevens survey and assuming the last one to be correct, upon the survey of plaintiffs, has not been discussed by counsel and need not be by us. It is evident that the officer who made the Stevens survey d'id not discharge his duty accurately in every particular. His failure to do so is most strikingly shown by the quantity of the land included in the survey, ■if he actually ran the lines according to the surrounding surveys. Such excess, however, has never been held by this court a ground for disregarding surveys actually made. In this case the greatness of the excess is not without force as an argument indicating that the surveyor actually intended to make the Stevens embrace all of the land left by the surrounding surveys. It is apparent that by an actual survey he would have been able to locate a survey of 800 acres in the vacancy beginning at the Ryan southwest corner in some regular shape, and that the irregular and peculiar shape given to the Stevens, as is evidenced by the calls of the patent, was adopted because he was acquainted with the boundaries of the surrounding surveys and intended to make a survey conforming accurately to them as they then appeared. The judgment is affirmed. Affirmed. West & McGown, and Walton, Hill & Walton, submitted and argued a motion for rehearing. The motion was refused.