Walter M. Booth v. F. E. Strippleman and others, 26 Tex. 436

Mooes, J. It is the usual and ordinary presumption that grants óf land made by the State have been separated from the mass of public domain by an actual survey, made with a chain and compass. When, therefore, a re-survey is made, for the purpose of designating or ascertaining a tract of land that has been previously granted, resort is primarily had to the course and distance, as called for in • the survey; and if they, and all the' specialities given in the grant for its identification, are found to-agree with the survey, there is no doubt as to its true locality..

But owing to the ignorance, inaccuracies and mistakes of surveyors, the variation at different times of the magnetic needle, the discrepancies in the instruments used by surveyors, and more frequently to the fact that the original survey was never actually made upon the ground, it is often found that, although the natural or artificial objects given in the grant to identify it can be designated, yet they are shown to occupy very different relative positions from what they are said to do by the calls for course and distance in the grant.

As in such cases it is impossible to make a survey corresponding in all respects with the calls given in the grant for its identity, it has been a matter of frequent discussion in different courts, and sometimes one of great difficulty, to determine by what rules they will be governed in determining its correct locality. It may be said, however, to be now settled as a general rule, that we are to be governed, first, by natural objects, such as rivers, creeks, mountains, &c.; second, by artificial objects, such as marks, entries, marked lines, &c.; and third, by course and distance.

But still, calls of the latter class will sometimes control those of the others, as was said by Mr. Justice Boberts, in the case of Booth v. Upshur, “when upon applying the calls of the grant to the land, the surrounding and connecting circumstances adduced in proof to explain the discrepancy, -show that course and distance is the most reliable and certain evidence of the true locality of the grant.” The only question in this case depends upon the proper location of the McLane and McNair league.

The title of said league calls to begin at the lower river corner of the Strawsnider league, and to run thence northeast 353 varas to the east corner of the same, thence south 88 degrees east 5400 varas to a corner on the bank of Aguila lake.

It is found, however, that the distance called for will not reach the lake by 540 varas; but as there is no fact or circumstance shown with reference to these two conflicting calls, it is evident that guided by the preceding general rule that we have recognized, that this line must be prolonged to the border of the lake, where must be located the third corner of the survey; and from thence the title calls for a line to be run south, 53 degrees east, 4100 varas, to a stake in the upper line of the-James Ross league; and from thence south 77 degrees east with .said upper line, to Ross’ upper corner on the river.

It is out of these calls that the entire difficulty grows in locating the survey. •For upon attempting to make the survey, it is found that a line run by the course given in this call, will not, however far it may be protracted, intersect any line of the Ross league, nor will a line of the length called for, by any variation from the course, reach it.

It is, therefore, absolutely essential that we shall abandon, in running this line, the call for course or distance, or that for a stake in the upper line of the Ross league, and so much of the next call as directs that we shall run with said upper line to the river.

If the upper line of the Ross league was a well known and established marked line, and the point of intersection with ijt could be shown and identified by any natural or artificial objects, ’we should, unless controlled by “ surrounding and connecting circumstances,” be required to disregard the course and distance mentioned in this call, and run by a direct line from the corner on the bank of the lake to the point called for in said upper line. The line of the Ross league called for cannot be regarded as a marked line, or a visible artificial object.

Its locality can only be ascertained by a survey of the Ross league, and that, too, by commencing at its lower river corner, and protracting the entire survey to the upper river corner, called for in the McLane and McNairtitle.

There was an effort made upon the trial, in the court below, to show that the line called for was marked and established at the time the survey of the Ross league was made; but although the verdict of the jury seems to have been controlled by the evidence adduced by the defendants on this point, it cannot be regarded, with even plausibility, as having shown the line to have been such an one as can be regarded as a controlling call in this title. The line passes, for almost its course, through a prairie.

The witness relied upon by the defendants, does not pretend that there is more than the blazes upon# few scattering trees, near where the line enters the river bottom, by which it was ever marked; and he does not say that these were marked while he was present with the surveying party; and it was not shown how he learned that they were intended as the marks of this line. His brother, who was also with the surveyor present, has no knowledge that the line was ever marked.

And the surveyor, who was appointed by the court to survey the land in controversy, states that these marks were not intended for this line, but were blazes of an old and now abandoned road. But if these are marks for said line, they must be several miles distant from the point at which the McLane and McNair league would intersect it, if required to do so.

It is also to be considered, that, if this line is to be so run as to intersect said upper line of the Boss league, while there must be a wide departure from the course called for, and the line must be protracted more than a thousand varas beyond its true length, the configuration of the survey will be greatly and materially varied from that prescribed by law; it will also include near three thousand acres more than its requisite quantity of land.

While these considerations of themselves, might not be sufficient to require that a call for course and distance should control one for a well known and established artificial object, they certainly are sufficient to induce us to say that under these “ surrounding and connecting circumstances,” a call for course and distance cannot be controlled by a call for “ a stake,” in an open and unidentified line (Hubert v. Bartlett, 9 Tex., 104; Ralston v. McLeary, 9 Dana, 338; McCulloch v. Richardson, 1 McL., S. C., Rep., 167; Shipp v. Miller, 2 Wheat., 316; Chenoweth v. Haskell, 3 Peters., 92; Berkley v.

Bowmar, 2 Bibb, 493.) The fourth corner being ascertained, by running the third line by the calls for the course and distance given in the title, the fourth line must be run by the course, protracting it beyond the distance called for to the river. This leaves the land upon which plaintiff had filed unappropriated by this survey, and consequently subject to his location. The instructions of the court below to the jury were, we think, substantially correct; but the verdict was contrary to law and the evidence, and for this reason the court should have granted a new trial.

The judgment is reversed, and the cause remanded. Beversed and remanded.