Tex. & Pac. Ry. Co. v. Rector M. Thompson, 65 Tex. 186

Stayton, Associate Justice. A further examination of the record induces us to believe that the proper disposition of this cause was not made by the judgment heretofore entered upon the report of the commissioners of appeals, and the motion for rehearing will therefore be granted. In disposing of the ease we will not attempt to follow separately' the assignments of error of the respective parties, but will consider only such questions as are deemed material to the determination of this appeal.

The court below held that the surveys made by Harris in 1878 were in effect upon relocations of the certificates under the location of which surveys had been made in 1874, and that as the certificates were not in the possession of the surveyor, but in the general land office at the time the last surveys were made, the same were invalid. If the last surveys covered land which could not have been embraced in the surveys first made, under the locations on which they were made, then the holding of the court was correct.

To have authorized The last surveys in such case, it would have been necessary, in order to embrace land therein not covered by the former surveys, to have proceeded as would have been necessary in an original appropriation of land. R. S., 3894, 3901.

If, however, the locations originally made would cover the land -embraced in the surveys last made, then we are of the opinion, notwithstanding the first surveys and the land certificates had been returned to and were in the general land office, that the surveys might have been made to conform to the original location, if through mistake or'inadvertence the surveyor had failed in the first instance to embrace the land located in the surveys made.

Surveys made under such circumstances would be corrections, which it would be the right of the locator to have made, and he would lose no right, through the fault of the surveyor, through which the land actually located was not covered by the first surveys, unless by some act done by him some subsequent locator was induced to appropriate the land not covered by the first survey.

The original locations made by the appellant are not contained in the transcript, and it is impossible for us to tell whether any of the land embraced in the last surveys, and not embraced in the first, could legally have been covered thereby. From some of the findings of the court it is evident, unless the first surveys were made in utter disregard of the locations, that the land embraced in some of the tracts as last surveyed could not have been covered by the locations, while, as to other tracts, the land in whole or in part must have been embraced.

If we are to presume that the first surveys were made in accordance with the locations, and in the absence of evidence to the contrary this ought to be presumed, then it is evident that parts of surveys 2, 3, 4 and 5, as originally made, are covered by surveys made for the appellee. The court below held that these surveys, as well as survey So. 1, had been abandoned by the defendants, causing them to be patented in whole or in part to itself, under locations and surveys made in another block which was contiguous. We do not see that this would follow.

If by mistake different certificates belonging to defendant were in

part located or surveyed on the same land, and some of them were patented, we do not see that this could affect the right of the defendant to hold the land, not so patented, by virtue of a valid location and survey. Covering a part of a survey with two certificates, and accepting a patent under one of them, in the absence of some further fact tending to show an intention not to claim that part of the survey not covered by the patent, cannot operate as an abandonment of the location and survey in so far as the land contained in it and not covered by the patent is concerned.

The court below held that, as survey Bo. 1 called for the same bearing tree as did the Sancedo grant, and as survey Bo. 2 calls for the same objects for one of its corners as are called for in the Oliveras grant, survey Bos. 1, 2, 3, 4 and 5, which call for each other, must be governed in their locations by the true locations of the Sancedo and Oliveras grants.

These grants are not called for by name in either of the surveys above named, but it is manifest that two corners called for were corners of the Sancedo and Oliveras grants, which the surveyor, who did not make actual surveys, supposed would be found at the places at which, by calculation, he intended to establish corners of surveys Bos. 1 and 2.

At the time the surveys in question were made, the maps then in use showed the Sancedo and Oliveras grants to be situated at points which would have made the calls for objects at their corners proper for calls for corners of surveys Nos. 1 and 2, by course and distance from the south-west corner of survey No. 146, patented in Grimes county as a part of its school land ,• but it appears that the Sancedo and Oliveras grants are actually located about ten miles east of the place they were supposed to occupy in 1874.

This being shown, and it appearing that there was no actual survey of the tracts called surveys 1, 2, 3, 4 and 5, we are of the opinion that the locality of these tracts does not necessarily depend upon the true localities of the Sancedo and Oliveras grants, objects of the corners of which were evidently called for by mistake. Boon v. Hunter, 62 Tex., 582, and cases cited.

Tract Bo. 1 calls to “beginat a stake and mound, nineteen hundred varas north, fifteen degrees west, from the south-west corner of a one-league survey Bo. 146, made in the name of Grimes county school land, a double mesquite tree bears east seventeen varas.” This tree is the same in description and position, as to bearing from corner as called for, as a bearing to the north-east corner of the Sancedo grant, and the four other tracts numbered 2, 3, 4 and 5, in succession, call for the tracts preceding in number.

If the south-west corner of survey Bo. 146 was actually established on the ground, or if it can from other calls be established, then the true position of tracts Bos. 1, 2, 3, 4 and 5 may be established. It seems not to be denied that there is land covered by the locations of the appellee lying between block 9 and block 5, not covered by either the first or second sets of field notes made for the appellant, and we are asked to here render a judgment giving to each party, by metes and bounds, the land to which they are entitled.

This cannot be done; in fact, such was the difficulty of this question, that this is given as a reason why the pleadings do not set out the true boundaries to which each party may be entitled in some of the tracts.

We cannot know from the findings how much, if any, of the tracts numbered 1, 2, 3, 4 and 5, is covered by surveys patented to the, appellant in block hTo. 9; nor how much land not covered by appellant’s claims, but covered by the surveys of appellee, lies between block 9 and block 5; and from the maps before us, the field notes off the respective parties will in some instances conflict, whether we consider the one or the other of the sets of field notes made for the-appellant. We apprehend that in the present condition of the field, notes, patents will most probably not issue to either party.

Besides the rights of the parties are more likely to be correctly adjusted after proper inquiry is made as to what extent the last field notes made for the appellant were authorized under the locations, or entries. These are sufficient reasons why a judgment ought not to be rendered here.

The commissioner of the general land office may give certified sketches from the maps in his office, and in many cases such sketches are admissible; but the sketches offered by the appellee did not purport to be copies of maps in use or on file in the land office, but purported to be made up from field notes with a view to proving thereby that the several tracts of land were in fact situated as they are represented thereon. Such would be but the opinion of the draughtsman who made the sketches, and such matters are not admissible.

The general sketches are certified to show the correct positions of the several tracts of land shown thereon, which fact is sought to be established by the farther certificate that the sketches were compiled from the field notes on file in the office. An examination of these several sketches shows that the positions of several of the tracts sketched and certified on our sketch to be correctly located, on others are certified to be correctly located in other places.

The commissioner evidently did not intend, and was not empowered, to make such certificates as were made, and if they had been admitted were calculated to mislead. The judgment will be reversed and the cause remanded. Reversed and Remanded. [Opinion delivered Dec. 8, 1885.]