W. T. CARTER & BRO. v. KIRBY LUMBER CO. et al., 152 F. 622

PARDEE, Circuit Judge. The question involved on this appeal is as to the proper location of the north line of

section 4,- a school

section of railroad land in Tyler county, Tex., originally surveyed August 4, 1874, by M. L. McAlister, deputy surveyor of Tyler county. The field notes are: “Field notes of a survey of (640) six hundred and forty acres of land made for the B. B. B. & C. R. R, R. Company, it being the quantity of land to which they were entitled by virtue of certificate No. 647 issued to said company by W. S. Hotchkiss, Com. Claims, March 30th, 1860. Said survey is No. 4 in block No. 1, situated in Tyler county on the waters of Billums creek, a tributary of the Neches river, about 15 miles N. 12° W. of Woodville.

Beginning on the N. line of Sect. No. 1 at the S. W. cor. of Sect. No. 2, a stake, from which a pine brs. N. 6 vrs. Thence N. on W. line of Sect. No. 2. at 1,312 vrs. S. line of J. Crews survey, a rock for cor. from which a pine brs. S. 10° E. 2 vrs-. Thence W., at 164 vrs. S. W. cor. of the same, a stake, from which a pine brs. N. 55°' E. 14 vrs. and a pine brs. S. 66° W. 8 vrs. Thence N. with W. line of same, at 1,150 vrs. its N. W. cor. on S. line of C. C. Tarver’s survey, a stake, from' which an elm brs. N. 4° E. 5 vrs. and a sweet gum brs. S. 55° E. 11 vrs. Thence W.,. at 450 vrs. C. C. Tarver’s S.

W. cor., a stake, from which a red oak brs. S. 35° E. 5 vrs. and a pine brs. N. 15° W. 6 vrs. Thence S. 310 vrs., cor. stake, from which a pine brs. S. 23° E. 7 vrs. and a pine brs. N. 7° W. 8 vrs. Thence W., at 1,064 vrs. cor. stake, from which a sweet gum brs. S. 12° E. 5 vrs. and a pine brs. S. 45° E. .3 vrs. Thence S., at 2,152 vrs. the N.‘ line of Sect. No. 3, a cor. stake, from which a pine brs. S. 55° W. 6 vrs. and a pine-brs. N. 58° E. 8 vrs. Thence E.. at 1.083 vrs. N. E. cor. Sect. No. 3 and N. W. cor. Sect. No. 1, and at 1.678 vrs. place of beginning.

Bearings marked “X.”' Surveyed August 4th, 1874 **M. L. McAlister, Dept. Surveyor T. Cío. “W. Coopwood, “R. Dell, “Chainmen.” On August 3, 1874, McAlister surveyed sections 1 and 2 adjoining on the south and east, and on the 4th and following day sections 3 and 5 adjoining on the south and west, and on the 5th- of August he surveyed

section 6, lying immediately west of

section 5. Of course, these sections were surveyed and located with reference to each other, and sections 6, 5, and 4 had the same north header line, to wit, a line due east from the extreme eastern corner of the B. Smart survey. Some of the field notes of the survey of

section 4, particularly as to distances, are in conflict; but according to the undisputed evidence in the case the southeast corner, south line, southwest corner, west line, northwest corner, and north line were measured and established on the ground, and the landmarks are there. The east line may have been surveyed on the ground, but that line is controlled by older surveys, and there is a probability that it was laid off as to course and distance from data in the office of the surveyor. The

section as surveyed calls for square corners, the courses are all north and south, east and west, and the angles are all right angles, so that we may infer that the length north and south of the east line was intended to be the same as in the west line.

The west line is given as 2,152 varas, and the north and south distance of the east line, made up of 1,312 varas to the south line of the Crews survey and 1,150 varas from southwest corner of Crews survey to the Tarver survey, amounting to 2,462 varas, is exactly 310 varas longer than the west line as given in the field notes, and 310 varas is the exact distance given in the first call south, and this call makes the trouble in the case. The actual distance from the conceded southeast corner of

section 4 to the Crews survey, as shown by subsequent‘survey is 971' varas. Therefore the first mistake in the field notes is in tile first call for distance north on west line of

section No. 2, at 1,312 varas south line of Crews survey, which was too much over by some 300 varas; and it is fair to presume that, if this mistake had not been made, the call from Tarver’s southwest corner south at 310 varas would not have been given in the field notes. April 30, 1903, the deputy county surveyor of Tyler county, Tex., made a resurvey of

section 4, and his corrected field notes are as follows: “Beginning at the S. W. corner of

section No. 2, B. B. B. & C. Ry. Co., on the N. line of

section No. 1 of the B. B. B. & C. Ry. Co., a stake, from which a line brs. N. 6 vrs. Thence W., on N. line of

section 1 and 3, 1.566 vrs., a stake, from which a pine brs. N. 58° E. 8 vrs., a pine brs. S. 36° 30' E. 6¾. Thence N. 43' 'W. on old marked line 2,232 vrs., the same being the E. line of

section No. 5, B. B. B. & C. By. Co., a stake, from which a sweet gum brs. S. 12° IS. 5 vrs., a pine brs. S. 45° IS. 3 vrs. (These bearings have original marks and are the bearing trees called for In original notes of tbis survey.) Thence E. 975 vrs., C. C. Tarver’s IV. line, a stake, from which a black gum, with ■old corner marks and the letters ‘R. B.’ or ‘R. B.’ on it, brs. N. 12° IS. 5 vrs. (This corner stands on the N. bank of McGraw’s creek.) Thence S., with Tar-ver’s west line, 102 vrs., S. W. corner of same, a stake, from which a pine (with old mark called for in original notes) brs. N. 15° IV. 6 vrs.

The red oak called for in notes is gone, but a portion of the stump remains, and brs. S. 35° B. 5 vrs. Thence E., with Tarver’s S. line, 457 vrs., John Crews’ W. line fell in field 20 vrs. S. of Crews’ N. W. corner (corner obliterated). Set stake for this corner. Thence S., with Crews’ W. line, from his N. W. corner, 1.150 vrs., his S. W. corner, a stake, from which a pine brs. S. 00° W. 8 vrs., another pine called for in old'notes gone, marked a sweet gum 12 inches in día. brs. S. 30° E. 13 vrs. Thence E. 162 vrs., rock corner on said Crews’ K. line, and the most western N. W. corner of

section No. 2. Thence S., with the W. line of

section No. 20, 77 vrs., to the place of beginning. Bearings marked ‘X.’ Surveyed April 30th, 1903.” To the survey is attached '"the following certificate: “I, M. L. McAlister, surveyor Tyler county; Texas, Go hereby certify that I have examined the plat and field notes of the above survey and find them correct, and that they are recorded in my office in Book 1 of Transcript from old R. R. Book E., pages 142 and 143. “Given under my hand, at Woodville, on the 2d day of May, 1903. “M. Jj. McAlister, County Surveyor, Tyler Co., Texas.” We take it that the M. R. McAlister making the above certificate is the same M.

R. McAlister who, as deputy surveyor of Tyler county, made-the original survey August 4, 1874. It is objected that these corrected field notes cannot be considered, because the calls are not followed as in the original survey, but are reversed.

There have been some conflicting decisions in regard to the right to reverse the calls in surveys not proved to have been made upon the ground; but we think that in(cases of conflicting boundary, where the proof goes to the extent of showing that part of the survey was on the ground, the calls may be reversed, and the lines traced the other way, “whenever by so doing the land embraced would most nearly harmonize all the calls and the objects of the grant.” See Platt v. Vermillion, 99 Fed. 356, 39 C. C. A. 555, where the matter of reversing calls in a survey is fully discussed and authorities considered.

In these corrected field notes the north line is from the northwest corner of

section 4, “E. 975 vrs., C. C. Tarver’s W. line, a stake, from which a black gum, with old corner marks and the letters ‘R. R.’ or ‘R. B.’ on it, brs. N. 12° E. 5 vrs.” We understand this to be the same line claimed by the appellants and shown to have been run on the ground in the original survey, and we conclude, from this and the other facts proved, that this line is the north line of

section 4. The court below, following the master, having rejected this line .and found the north line of

section 4 to be further south by some 400 varas, we are constrained to reverse the decree of the court below and remand the case, with instructions to sustain the exceptions to the master’s report, so far as to hold that the north line of

section 4 is a line running due east from the northwest corner of

section 4 to the Tarver survey, as given in the corrected field notes of the survey in April, 1903, and thereupon to decree in favor of the interveners for the sum of $2,210.41, with interest from June 1, 1903, the value of timber belonging to the interveners and cut by the Kirby Rumber Company, as shown by facts given in the master’s report. And it is so ordered.