Tracy v. Eggleston

SHELBY, Circuit Judge, after stating the case as above, delivered tiie opinion of the court. There had been offered in evidence a map or survey of 1878, which was in use in 1879 in the general land office and Bexar land district. Tliis map was based on a survey made by Jacob Keuchler, who died before the trial. In the fall of 1885, É. Yon Rosenberg, accompanied by Jacob Kenehler and others, went on the lands alleged to be included in the survey, and Von Rosenberg was sworn in as a special state surveyor, Jacob Keuchler pointed out to the witness a loose mound of rock on the north bank of Elbow Lake, and informed the witness that it was a mound of rock placed there by himself (Keuchler) at the time he located Rusk Transportation No. 3 and its constructed surveys. He said that the beginning cor-nel’ of Rusk Transportation No. 3 was 950 varas S., 45° W., from this loose mound of rock. The defendants objected to this testimony as to the declarations of Jacob Keuchler. The first question for consideration is whether or not these declarations of Keuchler [328] were admissible in evidence. Von Eosenberg was acting officially. He was on the ground as special state surveyor, and his acts in that connection are clearly admissible in evidence. No objection is made to them. No objection is made to proof of the fact that the mound of rock was on the land as stated. No objection is made to the fact that Keuchler pointed out the mound of rock. This part of Von Rosenberg’s evidence is a statement of facts to which no objection was or could properly be made. The objection, therefore, is confined to the declaration of Keuchler, made at the time he pointed out the mound of rock, that they were placed there by himself at the time he located the corner, and that the corner was at a certain distance and in a designated direction from the mound of rock. It was said by the supreme court in 1880, after an examination of the Texas cases, that there was no essential difference between the rule there as to the question here considered and the general rule held by the American courts. The court observed, however, that, if there was a difference, which had become a rule of property in Texas applicable to the determination of controversies respecting disputed boundaries, such rule would be controlling in the federal courts. Hunnicutt v. Peyton, 102 U. S. 333, 364, 26 L. Ed. 113. In George v. Thomas, 16 Tex. 74, 92, the court admitted the declarations of a public surveyor. “He was a public surveyor,” said the court, “and his declarations while making the survey were clearly admissible as a part of the original res geste. On these questions of boundary the courts have gone much further, and, under certain restrictions, have freely admitted hearsay evidence to establish old surveys and boundary lines.” In Stroud v. Springfield, 28 Tex. 649, 665, a memorandum was offered in evidence as having been made by a surveyor. It was found among the surveyor’s papers, but the handwriting was not proved, and no effort was made to show its genuineness. The paper was excluded, but the court sgid: “If tne genuineness of these papers had been sufficiently proved, we are of opinion that they would have been admissible in evidence as the declarations of the party making them, for the purpose of aiding in the ascertainment of the boundaries of the Powell league.” In Welder v. Hunt, 34 Tex. 44, 48, the court said: “The declarations of public officers are held admissible to prove their official acts, and we see no reason why the declarations made by a surveyor, who claims to have run the line upon the ground, as to the location of a boundary line, may not, after the death of the surveyor, be proved by the witness to whom he made the declarations. We might hesitate to go so far as to admit the declarations of an interested party, .yet we have no hesitation in saying that the declarations of a surveyor as to an official act of his own, made upon the- ground, may be given in evidence, after his decease, by any competent witness who heard the declarations.” In Hurt v. Evans, 49 Tex. 311, 316, it was held that the declarations of a deceased owner of a tract of land as to the corners of the tract of which he was in possession at the time they were made are admissible in a contest as to the locations of such corners and lines, [329] The case of Reeves v. Roberts, 62 Tes. 550, is very much like the case at bar. A witness was on the stand, who had made a survey of the land in question. He testified that one Tinnon, an old surveyor, told him that he had been at that place (on the land surveyed) 20* years before that time, and recognized it as the southeast corner of the grant; that he had seen bearing trees, and the marks on them, while they were standing; and that in making surveys in the neighborhood he had made that a beginning point. The court held that the evidence of declarations made by Tinnon, in connection with his acts and means of knowledge, reaching back as they did for a period of .36 years prior to the trial, in connection with the other evidence in the cause, was admissible for the purpose of establishing the ancient boundary. In Russell v. Hunnicutt, 70 Tex. 657, 8 S. W. 500, the declarations of a surveyor, giving his opinion as to the identification of corners and lines of the survey, were excluded because the land was not originally surveyed by him, and because it appeared that he had no previous knowledge of the original survey. The court, however, said: “Where it is shown that the surveyor was in a position to know the truth of his declarations from having made the^original survey, or from other knowledge possessed hy him, the rule is different.” In the recent case of Ayers v. Harris, 77 Tex. 108, 115, 13 S. W. 768, a memorandum, being properly identified as being made by the surveyor, who died before the trial, was received in evidence. The court observed: “It is a well-recognized rule that the declarations of the surveyor may he proved under the circumstances existing at the time of the trial of this cause. Such evidence can certainly rank no higher, and cannot he so safe or satisfactory, as evidence written down by the surveyor at the time.” The opinion of the supreme court in Hunnicutt. v. Peyton, supra, indicates that in questions of private boundary declarations of particular facts, as distinguished from reputation, made by deceased persons, are admissible when “made by persons who it is shown had knowledge of that whereof they spoke, and who were on the land, or in possession of it, when the declarations were made.” In one or (he Texas cases which we have quoted the court refers to the declarations which were admitted as being those of persons who are disinterested, and in another one of the cases the court said it might hesitate to go so far as to admit the declarations of an interested party. We have found no case, however, that excluded the declarations, which were otherwise relevant, because the declar-ant was in ¡('rested. ' In several of the cases where the declarations of owners in possession as to boundaries were received the declarant manifestly had an interest, and yet the declaration was received. Such declarations, when not received as a part of the res gestae, and when not received as declarations against interest, are really accepted in evidence as a substitute for the dead or absent declarant. If he were present as a witness, as the statutes now stand, his interest, or his being a party to the action, would not make him incompetent. Rev. St. Tex. 1895, § 2300; Rev. St. U. S. (2d Ed.) § 858. We do not think, therefore, that the fact that Jacob Keuchler had [330] an interest in the real estate involved in the controversy rendered his declarations inadmissible. The only other question raised by the plaintiff in the argument at bar or in the briefs relates to the charge of the court. The charge and exception have been given in full in the statement of the case. It will be seen that the charge was intended to cover the several questions in the case. There are portions of it that are not objected to in the argument at the bar or in the briefs filed. An excerpt consisting of three sentences is selected by the learned counsel for the plaintiff in error as being erroneous. It is as follows: “In order to determine the location of a survey made on the ground, it is your duty to follow the footsteps of the surveyor to locate the survey on 11h> ground as the surveyor made the survey. If you believe from the testimony that Keuehler, the surveyor who made the survey of the defendants, actually surveyed on the ground defendants’ survey No. 3, commencing at Keuehler or Klbow Lake, and at which point he constructed said survey No. 3, you will return a verdict for defendants. If, on the other hand, you do not believe from the evidence that said Keuehler actually made said survey on the ground (and the presumption of law is that it was made on the ground, unless the evidence in the ease shows to the contrary)', then you will endeavor, from the evidence and the field notes, to ascertain where the surveyor intended to locate survey No. 3.” This part of the charge was not singled out and excepted to on the trial. The exception there taken was to the entire charge. The objections which were stated in the exception reserved related to the entire charge.. The objections were that the court did not charge the law applicable to the case made by the evidence; that the charge was on the weight of the evidence; and'that it incorrectly stated the issues involved, and failed to present the law of the entire case under the pleading and evidence, and incorrectly stated the law as given. These exceptions and objections manifestly go to the entire charge. No portion of it was selected for exception or objection. No separate objection was made to the part of the charge now singled out in argument for objection. It is well settled that a general exception to the whole of a charge to the jury will not avail a plaintiff in error if the charge contains distinct propositions, and any one of them is free from error. If the exception does not direct the attention of the trial court to a particular portion or portions of a charge to which objection is made, it raises no question for review in the appellate court. Burton v. Ferry Co.. 114 U. S. 474, 5 Sup. Ct. 960, 29 L. Ed. 215; Anthony v. Railroad Co., 132 U. S. 172, 10 Sup. Ct. 53, 33 L. Ed. 301; Lincoln v. Claflin, 7 Wall. 132, 19 L. Ed. 106; Cooper v. Schlesinger, 111 U. S. 148, 4 Sup. Ct. 360, 28 L. Ed. 382. The assignments of error, we think, are not well taken. • The judgment of the circuit court is affirmed.