BLUM v. BOWMAN et al., 66 F. 883

McCORMICK, Circuit Judge. The issue in this case is the location of the east boundary line of a grant made by the state of Texas to Cherokee county, known as the “Cherokee County School Land.” The proof shows that in 1853 a number of surveys were located on the Wichita in the name of John A. Scott, covering the course of that stream for a number of miles, and touching each other. These surveys were at least partially made on the ground, and the corners on or .near the stream, where bearing trees- could be had, were designated by marked trees.

In 1855 the surveyor who had made the Scott surveys platted in by projections, without any work then done on the ground, the location of the Cherokee county school land, the calls of which location, as returned by the surveyor to the land office and as set out in the patent which issued thereon, began at the southwest corner of Scott’s survey No. 8, which is a well-established, undisputed point on the ground.

The calls proceed east 1,505 varas; thence north 2,400 varas; thence east 1,100 varas; thence north 1,200 varas; thence east 1,900 varas; thence north 1,900 varas; thence east 520 varas; thence north 1,086 varas; thence east 1,900 varas; thence north 1,900 varas, calling here for the northeast corner of Scott’s survey No. 13; thence east 6,625 varas to a corner; thence south 9,886 varas to a corner; thence west 13,557 varas to a comer; thence 1,400 varas to the beginning point.

The first six pf these calls are. coincident with lines and corners of,Scott’s.. surveys Nos. 8, 9, and 10,. and. the closing call, traces-the east boundary line oí Scott’s survey No. 7. These lines and corners of the Scott surveys Nos. 7, 8, 9, and 10 are well established on the ground, and are undisputed.

It seems to be established by the proof, and substantially conceded, that to construct the Cherokee county school land survey from its undisputed beginning corner, or from any of the undisputed corners running with the calls for course and distance, or reversing them, would locate the east boundary line of that survey where the plaintiff claims it is, and entitle him to recover. The survey, thus constructed, would embrace the number of acres called for in the grant, and the full measure of land authorized by law to be located for Cherokee county for school purposes.

The defendants contend that the seventh call, for 520 varas, was erroneous, and should have been for 3,587 varus, in order that the succeeding eighth, ninth, and tenth calls should reach and terminate at a point coincident with the northeast corner of Scott’s survey No. 13. It is admitted that this is an open prairie corner, wholly unmarked hy natural or artificial objects.

The defendants introduced evidence tending to show that at the northwest corner of Scott’s survey No-. 13 there was a marked bearing tree, and that the field notes in Scott’s survey No. 13 showed that its north line ran east 1,900 varas to a point for corner, and they claimed that lire true northeast corner of this survey was 1,900 varas east from its northwest corner as fixed hy the marked bearing tree mentioned in their evidence.

The plaintiff offered evidence tending to show that 1,017.7 varas west from the hearing tree claimed by defendants as witnessing the northwest corner of this survey there was a marked tree to witness its northwest corner, which plaintiff contends is supported by the calls for course and distance in the east and north lines of Scott’s survey No. 11 and the east and north calls of Scott’s surveys Nos. 12 and 13. The defendants offered the field notes of Scott’s surveys Nos. 12, 15, and 3 6, and oral testimony in connection with the calls in the field notes of these different adjoining or neighboring surveys.

In this slate of the proof the circuit court charged the jury as follows: “Tie material question in the case is, where are the northeast and northwest corners of survey No. 13, in the name of John A. Scott? When you have located the northeast corner of said survey No. 33, then yon will locate the northwest corner of Cherokee county school land at the same place, plaintiff claims that the northwest corner of said survey No. 13 is 1,017.7 varas further west rlmn defendant claims it to be. Mach designate by the evidence a tree as the northwestern coiner of said Scott survey No. 13.

Plaintiff invokes the field notes of Nos. 10, 31. 12, and .13 of John A. Scott surveys in, aid of their construction, as also to show whore the true location of said survey 13 is, as also certain marks which they claim are old line marks, pointing out the corner claimed by them as the true northwestern, corner of said survey No. 33. If the location of said survey No. 13 in the name of said Scott is as claimed by plaintiff, then you will find for plaintiff' the land claimed by them.

If, on the contrary, the location of said survey No. 13 is located on the ground as claimed by defendants, then you will find for defendants the land in controversy claimed by them. If, under the foregoing instructions, you cannot with reasonable certainty establish the northwest corner of survey No. 33 in the name of Scott, as claimed by either plaintiff or defendant, then you'may fall back on this southwest corner of survey No. 8 in the name of John A. Scott. This corner üiore is ho dispute about.

Should' you find yourself forced back on said corner as the only one established by the evidence, then you may cent struct the Cherokee county school lands from this comer, and in doing so may reverse the calls. You may, in such case, go backward or forward on the footsteps of the surveyor, or upon the calls, if there was no actual survey of the Cherokee county school lands. If you construct the Cherokee county school lands from said last-named comer, then you will determine whether said Cherokee county school lands include those claimed by plaintiff. If so, you will find for defendants.

If said Cherokee county school lands do not include the lands claimed by plaintiff, then you will find for plaintiff such of the lands claimed by plaintiff as are not embraced by said Cherokee county school lands.” There was error in this charge, in that it gives undue dignity to the call for the northeast corner of Scott’s survey No. 13.

The familiar classification and gradation of calls in original grants of land by which their relative importance and weight are to be determined have been announced, construed, and applied in very many cases which have been decided by the supreme court of Texas, and have become so far elementary as to excuse, if not forbid, repetition here. Hubert v. Bartlett’s Heirs, 9 Tex. 97; Booth v. Upshur, 26 Tex. 64; McCown v. Hill, Id. 359; Booth v. Strippleman, Id. 436; Phillips v. Ayres, 45 Tex. 602; Fordtran v. Ellis, 58 Tex. 245; Woods v. Robinson, Id. 655; Davis v. Smith, 61 Tex. 18; Boon v.

Hunter, 62 Tex. 582; Gerold v. Freeman, 68 Tex. 201, 4 S. W. 256; Lilly v. Blum, 70 Tex. 704, 6 S. W. 279; Stafford v. King, 30 Tex. 257; Luckett v. Scruggs, 73 Tex. 519, 11 S. W. 529; Randall v. Gill, 77 Tex. 351, 14 S. W. 134; Reast v. Donald, 84 Tex. 648, 19 S. W. 795. As was said in Booth v. Upshur, supra: “There is no law fixing the effect of any call found in a grant, or giving one more weight or importante than another.

Therefore, by merely looking at the face of the grant, which has several calls, the controlling call cannot be determined. * * * The lowest grade * * * is made to prevail over the highest grade * * * when, applying the calls of the grant to the land, the surrounding and connected circumstances * * * show that course or distance is the most certain and reliable evidence of the true locality of the grant.” In the case we are considering tbe plaintiff’s land is bounded on tbe west by tbe east boundary line of tbe grant to Cberokee county. There is no discrepancy apparent on tbe face of tbe calls of tbat grant.

Tbe defendants claim tbat the true location of Scott surveys Nos. 11 and 13 show a discrepancy in tbe calls of tbe Oherokee grant. Tbe burden of proof to estabiish this discrepancy rests on tbe defendants who set it up. Tbe question is one of fact for tbe jury, and should be so submitted tbat the jury would be free to construct tbe Cherokee county survey from any of its admitted corners by its own calls, unless the evidence, in their judgment, establishes the northeast corner of Scott survey No. 13 at tbe point claimed by tbe defendants.

If, on consideration of tbe whole of tbe evidence given them, tbe jury are not satisfied tbat tbe point claimed by tbe defendants to be tbe northeast corner of Scott’s survey No. 13 is tbe oorrect location of tbat corner, they should disregard tbe call for tbat corner, and construct tbe Cherokee county grant by its own (calls from any of its established and admitted corners. Tbe judgment of tbe circuit court is reversed, and tbe case is remanded to tbat court, with direction to it to award tbe plaintiff a new trial.