CROSS et al. v. WILKINSON et al., 234 S.W. 68

GREENWOOD, J. The certificate of the honorable Court of Civil Appeals is as follows: “This suit involves the law of boundary, the issue being as to whether there was a vacancy between the La Salle county school land and railroad surveys to the west of same; the La Salle county school land called to run course and distance to said railroad surveys. There are no bearings or other natural or artificial monuments on the west side of said school land, by which its lines and corners can be located, unless the calls for said school land are to control over course and distance. “Article 4269, R.

S., reads as follows: ‘The surveys of all county school lands heretofore made, either actually on the ground or by protraction, and returned into the general land office, according to law, and upon which patents have issued, are hereby declared valid surveys, and the titles to the lands included within the lines of said surveys, as returned to the general land office, are hereby vested in the counties for which the same were made; and in all such surveys the calls for distance shall have precedence and control calls for rivers or natural objects when the calls for distance will give the quantity of land intended to be included in the survey and the calls for natural objects or rivers will not; provided, this law shall not divest any vested right.’ “In Steward v.

Coleman County, 95 Tex. 445, 67 S. W. 1016, the Supreme Court of this state held that, by virtue of this statute, the calls for the unmarked lines of an older survey would prevail as to county school lands over the calls for distance; and this decision was followed by this court in Lewright v. Travis County, 54 Tex. Civ. App. 540, 118 S. W. 725.

In the instant case we held to the contrary — that is to say, we held that, where the county school land survey began at a known corner, and called to run course and distance to an older survey, and the distance was exhausted and the quantum of land obtained in the school land survey before the older survey was reached, that the statute above quoted did not apply, but that the boundaries of said survey would be determined under the general law of boundary, without reference to said

article of the statute. “In the instant ease the La Salle county surveys were patented November 1, 18S3. The

article of the statute above referred to was approved March 21, 1883, and took effect from and after its passage; for which reason, also, we held that said

article did not apply to this case. A copy of our original opinion is hereto attached and made a part of this certificate. This case, is now pending in this court on motion for rehearing, and we have granted a motion to certify. “With the foregoing statement and explanation, the Court of Civil Appeals for the Third district certifies to the Supreme Court the following material questions: “1. Do the calls of a county school land survey for the lines of older surveys control over distance by virtue of

article 4269 of the Revised Civil Statutes? “2. The La Salle county school lands not having been patented prior to the taking effect of said act, does the same apply in this case?” It appears from the opinion, made a part of the certificate (187 S. W. 345), that a sketch of the La Salle County school land surveys, returned with the field notes to the general land office, showed the west lines of the leagues to coincide with the east lines of the railroad surveys.

The facts certified show beyond any reasonable doubt that the land in controversy was included within the lines of the school land surveys as such lines were returned to the general land office. The lines were returned by means of the field notes and the accompanying sketch. The field notes and the sketch were explicit in making the east lines of the railroad surveys the west lines of the school land surveys. Under settled rules of construction; the calls in the field notes and sketch for adjacent lines were entitled to prevail over the variant calls for distance only. Maddox v. Fenner, 79 Tex. 291, 15 S.

W. 237; Davis v. Baylor, 19 S. W. 524. That is to say, an inconsistency being shown between the calls for distance and the calls for the adjacent lines on the application of the .calls to the land itself, no other extrinsic facts being shown, the calls for distance would yield to the calls for the adjacent lines. Hence, the field notes and sketch returned to the general land office, rightly interpreted as instruments in writing, gave the same boundary to the school land surveys on the west as to the railroad surveys on the east. Prior to the Act of March 21, 1883 (Laws 1S83, p. 28), afterwards

article 4209 in the Revised Statutes of 1895, upon an inconsistency being shown in land boundary calls, when applied to the ground, it was competent to show by extrinsic evidence the very footsteps of the surveyor, and boundary controversies were adjudicated by establishing lines where they were found to have been actually run. Johnson v. Archibald, 78 Tex. 102, 14 S. W. 266, 22 Am. St. Rep. 27; Thompson v. Langdon, 87 Tex. 258, 28 S. W. 931.

Such extrinsic evidence, ordinarily undisclosed by any public archive or record, would often lead to adjudications wholly different from what would follow consideration of only the lines returned to the General Land Office. It was the plain purpose of the act of 1883 to put the boundary lines of the mentioned county school lands, as returned to the General Land office and as carried into patents, beyond attack by reason of such entirely foreign and extrinsic evidence. Before the enactment of the statute, the inquiry in boundary disputes was for the lines as actually run on the ground.

Under the statute, in ascertaining the boundaries of the school land surveys within its operation, the inquiry is changed, and is for the lines as returned to the land office.

To so hold is but to give their ordinary signification to the words: “The titles to the land included within the lines of said surveys, as returned to the general land office, are hereby vested in the counties for which the same were made.” The necessary effect of the statute being to make calls for'lines and corners, in field notes of these county school lands, returned to the general land office and embodied in patents, prevail over contrary calls for distance, it was provided that the calls for distance be given precedence when necessary to give the counties the intended acreage. In Steward v.

Coleman County, 95 Tex. 445, 67 S. W. 1016, the surveyor mistook the width- of the vacant land and supposed that the lines called for were at the distance recited.

The calls for the lines were given conclusive effect by the Supreme Court, though the surveyor intended the survey to stop at the distance given, and though there was an excess in area of 1,500 acres, on the ground that the evident meaning of the statute was that title was to vest according to the lines “as stated on the face of the description filed in the land office.” In its opinion the Court of Civil Appeals criticizes the portion of the opinion in Steward’s Case construing the statute, and pronounces it dicta. The issue presented required a construction of the statute.

The construction given the statute was determinative of the issue, and indeed of the whole case. Judge Williams’ opinion discloses that it was prepared with his usual care and sagacity, and we think it abundantly demonstrates the correctness of the conclusions announced. The Court of Civil Appeals had rightly followed the opinion as an authoritative construction of the statute in Lewright v. Travis County, 54 Tex. Civ. App. 540, 118 S. W. 725.

As pointed out in the opinion in Steward’s Case it would violate a cardinal rule of construction not to give significance and effect to tihe words of the statute declaring the legislative intent that the patented county school lands shall extend to the lines returned to the land office, it being possible to give significance and effect thereto. The words are deprived of all use and significance by the

interpretation that these boundaries are to “be determined under the general law of boundary,” for that is the precise way in which the boundaries would have to be determined had the words referred to been omitted from the statute. The fact that precedent and subsequent portions of the statute could still be given beneficial operation by no means justifies adopting a construction necessitating the virtual elimination of part of the statute.

The statute, as construed herein and in (Steward’s Case, is operative throughout and is a consistent whole, and it subserves. a wise and just policy in giving to persons dealing with these county school lands the assurance that they may rely on the boundary lines, returned to the general land office and approved there by the issuance of patents. Were we inclined to give a different construction to the statute, the rule of stare decisis would preclude our doing so.

For that rule applies with especial strictness to a decision construing a statute, on which individuals and the public have relied in making contracts and acquiring land titles for nearly 20 years. We answer “Yes” to question 1. While the Da Salle county school lands were patented subsequent to the date on which the 1883 statute tools; effect, they were •previously surveyed, with due return made' of the field notes to the general land office, and they were patented before the statute was re-enacted in the Revised Civil Statutes of 1895.

If previous issuance of patent, as well as a previous survey, was requisite to bring lands within the statute’s operation, there could have been no reason for including the statute in the revision of 1895 except to extend the operation of the statute to the period intervening between its original enactment and 1895. In that event, the statute must be given application to lands patented during such intervening period. Greene v. Robison, 109 Tex. 367, 210 S. W. 498. On the other hand, if the statute as originally enacted applied to surveys previously made, whenever patented, it applies to this controversy.

It follows that the statute applies under the facts of this ease and we answer “Yes” to question 2. <®=3For other eases see same topic and KEY-NIJMBER in all Key-Numbered Digests and Indexes