W. T. Robinson et al. v. S. E. Doss, 53 Tex. 496

Gould, Associate Justice. Doss claimed the land for which he sued by virtue of locations in 1874. The defendants claim under a patent for a league and labor of land to Sublett, assignee of Barnett, issued November 1, 1855. The plaintiff claiming that the field notes of the patent to Sublett, instead of including a rectangle of 8,000 by 3,250 varas, making a league and labor, in fact include only a rectangle of 5,400 by 3,250 varas, located on the eastern part of the land claimed by defendants, as on vacant public domain. Whether this land so located was included in the land patented to Sublett was the main issue.

The court, no jury being demanded, after hearing the evidence, gave judgment in favor of the plaintiff. The field notes of the patent are as follows: “ In Cooke county, Texas, on Elm Fork of Trinity river, about eleven and one-half miles west of Gainesville.

Beginning at a stake 1,900 varas N., 45 degrees W. from Carle Sayers’ west corner, from which an elm bears N. 9 degrees W., 4 varas; another bears E. 77-]- degrees E., 21 varas; thence west 4,800 varas to a rock, from which two chinas bear S. 71 degrees W., 305 varas; thence north 2,940 varas to right hand fork of Elm, 3,250 varas to rock mound, from which an elm bears S. 34 degrees E., 115 varas; thence east 8,000. varas to a stake in the head of Tonkawa branch, from which an elm bears E. 33 degrees E., 36 varas; thence south 3,250 varas, to stake in prairie; thence west 3,250 varas tó the place of beginning.

In their answer defendants aver that the call “in the head of Tonkawa branch from which an elm bears N. 33]- degrees E., 36 varas,” was inserted in said field notes and patent by mistake, and the true corner was fixed by the courses and distances given in said patent. On attempting to run out the survey, the beginning point was well identified, as also was the first or southwest corner of the Barnett league and labor, the distance being, however, 5,200 varas instead of 4,800. Thence running north, the west line as called for is found, and the northeast corner at 3,250 varas is found and identified.

From this point, running east through prairie at 5,400 varas, is found the head of Tonkawa branch, and the bearing tree (elm) marked as called for in the patent is found. No other marked lines or corners are found. The survey is prairie, with the exception of timber ou the creeks and branches. To pass east beyond the elm tree the distance called for, would cross a public road well known to surveyors at the time of the survey, and would terminate in a high prairie.

The east line, if run at the distance called for, would cross Tonkawa branch, and the south line to the point of beginning would cross a large creek, and run through some timber. Surveyors testify that finding no calls for these objects, they conclude that the eastern part of the survey was never actually made. The elm tree in the head of Tonkawa branch is also identified as the beginning corner of the Thomas Scott two-thirds of a league survey, made by the same surveyors who made the Barnett, and on the same day.

The field notes of the Scott, called to begin on the north line of the Barnett survey, 3,000 varas west of the northeast corner of the same, a stake from which an elm marked X bears N. 33£ degrees E., 360 varas, near the head timber of Tonkawa branch. Notwithstanding the discrepancies, it seems well established that this tree is identical with the elm tree called for in the Barnett field notes.

The two surveys as delineated in the maps when first placed there, and ever since, place the northeast corner of the Barnett about 3,000 varas east of the beginning corner of the Scott, malting the Barnett a rectangular survey of about 8,000 by 3,250 varas. The Leverett survey was made about three weeks after the Barnett and Scott, by a surveyor who was present and assisted in making these surveys.

Its field notes call to begin at the southeast corner of a two-thirds league and labor survey made for Thomas Scott, on north line of John Barnett’s league and labor, from which an elm marked X bears N. 331,- degrees E., 360 varas; thence east on said line at 1,180 varas, Tonkawa branch; at 2,530 varas, Belknap road; at 3,000 varas, pass said Barnett’s northeast corner, etc. • The field notes of all adjoining surveys to the Barnett, made subsequent thereto, call for the Barnett as if it extended eastward the full distance called for.

It appears from the testimony of several persons who were present and assisting at the surveys, that the surveying party came out to make the Barnett and Scott surveys, and after establishing the beginning point of the Barnett, divided into two parties, one, under Perry, a deputy surveyor, running west a certain distance, thence north, and to meet the other party at the northwest corner of the Scott; the other, under Montague, the principal surveyor, running north to arrive at the width of the Barnett, the line run not being the east line, or any line, of the Barnett.

They established the southeast corner of the Scott (on the north line of the Barnett) at the elm tree in the head of Tonkawa branch, called for in the patent. The evidence of these parties, though not entirely consistent, shows, we think, that the eastern part of the Barnett was not actually surveyed. In addition to the foregoing, these parties testified that the intention was to make the corner of the Barnett not at the elm tree, but at a point 3,000 varas east.

It also appears that Montague was the surveyor who approved the field notes, and in the record of the field notes the words “in the head of Tonkawa branch” were erased, and the following interlined in Montague’s handwriting: “Five thousand varas past Thomas Scott’s southeast corner, at 8,000 varas, a mound.” The field notes as returned to the general land office corresponded with those in the patents.

The position assumed by appellees is that the survey does not embrace land east of the Elm corner at the head of Tonkawa branch; that that corner being fixed by natural and artificial objects, called for and correctly described in the field notes, cannot be disregarded in order to make the grant include land never in fact surveyed by the surveyors. It appears in this case that the calls of the survey cannot all be satisfied, and the general rule controlling such cases undoubtedly is, that course and distance must yield to natural or artificial monuments or objects.

It is, however, in all cases, the object to arrive at and carry out the intention of the parties, so far as it may “ be gathered from the language employed,” or, as it has been said by this court, “ the intention apparent on the face of the grant.” Hubert v. Bartlett, 9 Tex., 104; Tyler on Boundaries, p. 132. Or, as it was expressed in yet another case, “the legal meaning of the language of the patent, when considered in the light shed upon it by the acts constituting the survey.” Robertson v.

Masson, 26 Tex., 251. “Hence,” the court say, “"there are many cases where the course and distance will control natural marks or boundaries, as where it is apparent on the face of the grant that these were inserted by mistake, or were laid down by conjecture, and without regard to rule; and so of a variety of cases which may be supposed to exist.” 9 Tex., supra. Again, this court has said: “ In the abstract, all other things being equal, a river prevails over a marked line, and a marked line over course and distance.

Still the lowest grade, to wit, course and distance, is made to prevail over the highest grade, to wit, rivers, creeks, etc., when, upon applying the calls of the grant to the land, the surrounding and connected circumstances adduced in proof to explain the discrepancy show that course and distance is the most certain and reliable evidence of the true locality of the grant.” Booth v. Upshur, 26 Tex., 70; Booth v. Strippleman, id., 436; Browning v. Atkinson, 37 Tex., 659. In a recent case in the supreme court of the United States, speaking of the general rule, it is said: “This rule is not inflexible.

It yields whenever, taking all the particulars of the deed together, it would be absurd to apply it. For instance, if the rejection of a call for a monument would reconcile other parts of the description, and leave enough to identify and render certain the land, it would he absurd to retain the false call and thus defeat the conveyance.” White v. Luning, 3 Otto, 524. Speaking of a grant from the government, Justice. Field, then of the supreme court of California, says: “The rules adopted in the construction of boundaries are those which will best enable the courts to ascertain the intention of the parties.

Thus, preference is given to monuments because they are least liable to mistake, and the degree of importance given to natural or artificial monuments, courses and distances is just in proportion to the liability of parties to err in reference to them. But they do not occupy an inflexible position in regard to each other. To hold otherwise would be to give a greater importance to the rule itself than to the reason of the rule. It may sometimes happen, in case of a clear mistake, an inferior means of location will control a higher.” Ferris v. Coover, 10 Cal., 628. See also Davis v.

Rainsford, 17 Mass., 207; Norwood v. Byrd, 1 Richardson, 135; Fulwood v. Graham, id., 497; cases cited by Justice Field in Ferris v. Coover. See also Peaslee v. Gee, 19 N. H., 273. Appellees assert that an office survey, a survey not actually made, cannot be made to conform to the intention of the surveyor; citing Chinoweth v. Haskell, 3 Pet., 92. That case does not establish the rule that the intention of the surveyor is to be disregarded as to the location of lines not actually run out.

It announces and enforces a rule applicable to all cases, that “ the intention of a surveyor can be of no avail since he has not indicated this intention on his survey.” On the other hand, the authorities show, that, although the survey was not actually made, we are still to seek .for the intention of the surveyor. Says Judge Marshall, speaking for the supreme court of Kentucky: “This is not a question of tracing an actual boundary, or of discovering a lost one, or one which may be presumed to have been completed; but of constructing a survey by adding two lines which were never actually run.

And the cardinal object is, to ascertain what the surveyor would have done if he had gone on to complete the work. (Citing 2 Bibb, 493.) This is to be ascertained, not by vague conjecture, but by rational deductions from his report, as compared with the existing facts.” Ralston v. McClurg, 9 Dana, 339; see also Phillips v. Ayres, 45 Tex., 607; Booth v. Strippleman, 26 Tex., 441; Booth v. Upshur, id., 72-3.

If the patent to Sublett be read in the light of the surrounding circumstances (rejecting the evidence as to Montague’s action in interlining the recorded field notes, leaving the original unchanged, and rejecting other evidence as to what witnesses supposed to have been the intention of the surveyor), our opinion is that it clearly appears that the call for the elm tree as a corner is a mistake. 1.

The discrepancy of distance is not only so great as to be improbable, but that improbability is increased when it is remembered that the survey was begun, not at a corner, but at a point from which it was intended to measure 4,800 varas west, and 3,200 varas east, forming a continuous straight line. It is- not probable that the southeast corner was made, or could have been intended to be, at a distance of only.400 varas from the beginning point, instead of 3,200 varas, as expressed in the field notes. 2. The deficiency in quantity is a circumstance entitled to some weight.

Tyler on Law of Boundaries, 129; Booth v. Strippleman, 26 Tex., 443. 3. The Scott field notes made on the same day show that the surveyor did not intend to give the Scott and Barnett a common corner, but supposed that, giving to the north line of the Barnett the distance of 8,000 varas, the corner of the Scott would be 3,000 varas west of the Barnett corner. 4. The maps of these surveys as they have been ever since the surveys were made, locate the corner according to distance. 5.

The evidence given by those who assisted in making these surveys, and the action of one of those parties, himself a surveyor, in the calls of an adjoining survey made by him a few weeks afterwards, show that the eastern lines and corners of the Barnett were not actually surveyed and marked, and show what was understood at the time to be the relative position of the Scott southeast corner and the Barnett northeast corner.

Rejecting the single call and laying off the eastern part of the survey according to course and distance, we carry out the manifest intention to make a rectangular survey, occupying with reference to the Scott, the relative position indicated on the public maps, and by the field notes of the two surveys, as recognized in all the subsequent adjoining surveys of that period. The case is one in which adherence to the general rule would be to defeat the reason and object of the rule.

We think it equally clear that if the plaintiff has been misled by the calls of the patent, it has been because of his own neglect to make that examination into the surrounding circumstances which he should have made before undertaking to locate on lands recognized in the general land office and on the official maps as having been patented. To the extent of the course and distance called for in the patent, the court should have awarded the land to the defendants. In disposing of the case on this question solely, we express no opinion as to the validity of the Runnell certificate.

The judgment is reversed and the cause remanded. Reversed and remanded. [Opinion delivered June 22, 1880.]