James L. Scott v. T. L. Pettigrew et al., 72 Tex. 321

Acker, Presiding Judge.—Appellant brought this suit in the usual form of trespass to try title to 320 acres of land claimed as a part of the-J. M. Harvey survey. It was admitted that appellant owned the land described in his petition, and that appellees had a complete chain of title under the Maximo Morena eleven league grant. The Harvey survey was-located north of and adjoining the Morena survey, and the real question involved is one of boundary between the two surveys. The Morena grant, was located and surveyed in 1833, and the Harvey at a later date, but-when does not appear.

If the north boundary line of the Morena is located where appellant contends that it is, then the land sued for is a part- . of the Harvey, otherwise it is part of the Morena grant. The north boundary line of the Morena survey has given rise to much contention. The question of its location has been involved 'in several suits heretofore before this court, and in one suit before the Supreme. Court of the United States.

The field notes of the Morena survey, as given in the grant, are as-follows: Situated on the left margin of the river San Andres below the point where the creek called “Lampasas” enters said river on its opposite margin, and it has the lines, limits, boundaries, and landmarks following, to-wit: Beginning the survey at a pecan (nogal), fronting the-mouth of the aforesaid creek, which pecan serves as a landmark for the-first corner, and from which 14 varas to the north 59 degrees west there-is a hackberry 24 inches in diameter, and 15 varas to the south 34 degrees west there is an elm 12 inches in diameter.

A line was run to the-north 22 degrees east 22,960 varas and planted a stake in the prairie for the second corner. Thence another line was run to the south 70 degrees, east, at 8000 varas crossed a branch of the creek called Cow Creek, at. 10,600 varas crossed the principal branch of said creek, and at 12,580 varas two small hackberries serve as landmark for the third corner.

Thence another line was run to the south 20 degrees west, and at 3520 varas crossed the said Cow Creek, and at 26,400 varas to a tree (palo) on. the aforesaid margin of the river San Andres, which tree is called in English box elder, from which 7 varas to the south 28 degrees west there-is a cottonwood with two trunks, and 16 varas to the south 11 degrees east, there is an elm 15 inches in diameter.

Thence follow the river by its. meanders to the beginning point and comprising a plane area of eleven, leagues of land or 275 millions of square varas.” It is certain that it was the intention of both the grantor and grantee that the Morena survey should contain “a plane area of eleven leagues- or 275 millions of square varas.” Ho other surveys are called for in the field notes, and the early date at which the location was made renders it, quite probable that there were no older surveys contiguous to the territory embraced in the Morena grant.

The pecan (nogal) fronting the mouth of the Lampasas Creek was found, with bearings corresponding to those-described in the field notes, except that they were located in opposite directions from the calls in the field notes. Beginning the survey at this point and following course and distance for the northwest corner as called for in the field notes, the line runs much of the way through heavy timber, but no marks are found indicating that the first or west line was actually surveyed when the location was made.

This line would cross and recross the San Andres or Leon River, a stream of such dimensions as surveyors were forbidden by law to cross or include in locating surveys. At the point where the distance called for would fix the second or northwest corner, which is located by the field notes at “a stake in the prairie,” there is timber sufficiently near to have served as bearings for the identification of this corner, but no bearings are called for. The southeast or lower river corner is certainly identified and found upon the ground.

Beginning at this corner, reversing the calls, and running course and distance to the northeast corner, Cow Creek is crossed at approximately the distance called for in the field notes, and at or near the point where the distance given as the length of the east line is exhausted two hackberries corresponding with those called for in the field notes were found and identified in 1855 by witnesses who testified at the trial.

It satisfactorily appears that the east line is identified by marks on timber most of the distance between the marked and identified southeast corner and the point where the hackberries were found and identified in 1855.

Running on reversed calls, following course and distance from the point where the hackberries were found, and treating that point as the northeast corner, the distance given as. the length of the north line gives out several hundred varas short of the point of intersection with the west line run on course and distance given in the first call of the field notes; and the north line run from the point where the hack-berries were found on the reversed course called for in the field notes would intersect the west line run on course and distance from the point “fronting the mouth of the Lampasas Creek” at a point 3500 or 4000 varas south of the point where the northwest corner would be, following course and distance from the beginning corner as called for in the field notes.

Running the north line south seventy degrees east from the point where course and distance from the beginning corner locate the northwest corner, the grant contains an • excess of several leagues. Running the north line on reversed calls, course followed from the point where the hackberries were found and identified in 1855 to the point of intersection with the west line run on course called for from the beginning corner, the grant still contains considerable excess.

Under this state of facts the court gave the following charge, which is assigned as error: “If from the evidence you believe the first or western line ivas not run and measured, and that the eastern line ivas run no further than the two hackberries, and that they were marked and established as the northeast corner, then the position of the north line and the length of the first line running from the beginning corner would be controlled and fixed by said hackberries or northeast corner.” The fair and reasonable if not necessary construction to be placed upon this charge makes the weight and importance of the established and identified northeast corner, in locating the north and west lines, dependent upon the jury’s belief that the first or west line was not run and measured.

We think if the hackberries were identified as the northeast corner, and there were no marks found upon the ground indicating where the western line was located by the surveyor who made the original survey, this corner would be entitled to the same weight and effect in determining the position of the north line and the length of the west line running from the beginning corner as if the jury believed that the first or western line was not run and measured when the location was made.

The southwest and southeast corners upon the river appear to have been satisfactorily identified, and if the jury believed that the place where the two hackberries were found was the true northeast corner, and they could not find from the evidence the locality of the north and west lines as run by the original surevyor, being satisfied from the evidence of the localities of these three corners, the court should have instructed them to locate the north and west lines and construct the survey by following-course from the beginning or southwest corner and following course on the reversed call from the northeast corner to the point of intersection of the two lines so run, without regard to whether or not the first or western line was run and measured at the time the original survey was made.

The court gave the following charge: “If from the proof before you and under the instructions herein given you, you can fix the lines of the survey in harmony with its calls and the known corners, the fact, if you find it to be a fact, that said lines would include more than eleven leagues becomes wholly immaterial, and you will in such case not consider the extent of the area further than as a circumstance to aid you, in connection with all the evidence in the case, in following the footsteps of the original surveyor and fixing the true boundaries of said grant.” This charge is complained of as error.

If the grant was for land located between older surveys having marked and identified boundaries, and these older surveys were called for in the field notes of the grant, and the “footsteps ” of the surveyor who located the grant could not be found upon the ground, then excess in area would be of no consequence, because the intent to grant the land between the marked boundaries of the older surveys would be clear. Bingham v. McDowell, 69 Texas, 100.

But where no older surveys are called for in the grant, and there is nothing indicating an intent to embrace in the grant land not included in the area named, and the footsteps of the surveyor who made the location are found upon a part only of the boundaries of the grant, we think the jury should not be instructed to fix the unmarked and undefined boundaries regardless of the fact of excess.

The fact of excess in area should have been left to the jury to be considered in connection with all other evidence, without suggestion from the court as to what weight it was entitled to in determining so much of the boundaries as were not identified by marks and ■objects upon the ground.

It is contended that the court erred in the following charge: “If the testimony does not satisfy you that the two hackberries called for in the grant are identified as the northeast corner of the survey, and if you can not from the testimony fix said northeast corner nor the back line of said Morena survey by any other marks or monuments, then if you find the beginning corner is established and identified, then you will fix the said northeast corner by the courses and distances of the first and second lines called for in the Morena survey, except that the second line should be extended so as to meet the east line, if you find it was marked and extended beyond the hackberries, and the second line thus run will be the true north line of the Morena grant.” It is well settled that the beginning corner of a survey is of no greater weight or importance in determining its boundaries than any other corner, if other corners are as well established and identified as the beginning corner.

There seems to be no doubt as to the localities of the two corners on the river, the southeast and the southwest; both appear to have been well identified upon the ground. This being so, one was entitled to as much weight as the other in determining the locality of the north or back line, unless the jury should believe from the evidence that the line from one of these corners was actually run and measured, and not from the other. In that event the corner from which the line was run would be of greater importance, because of the certainty of the locality of the line so run.

If the jury could not determine from the evidence the locality of either the northwest or the northeast corner, and they could not from the testimony fix the north or back line by any other marks or monuments, then they should have been permitted by the charge to locate the north or back line from either or both of the two identified corners on the river, under the guidance of all the evidence and connecting ■circumstances, including the question of area.

The fourth subdivision of the charge given is as follows: “The burden of fixing this north line is on the defendants, and unless they have so established said line so as to include or cover the plaintiff’s land with reasonable certainty and by a preponderance of credible evidence, .you must find for the plaintiff.” In view of another trial we think it proper to say that this charge was error for which we would have reversed the judgment had it been in favor of appellant. The burden of proof was upon the appellant, plaintiff below, throughout. Clark v. Hills, 67 Texas, 148, et seq.

We think too that the words “reasonable certainty” mean substantially the same as “beyond a reasonable doubt.” We do not understand the law to require that a jury in a civil case must believe beyond a reasonable doubt to authorize their verdict, but we understand the rule to be that the verdict should be in accordance with the preponderance of the evidence. For the errors indicated we think the judgment of the court beloAV should be reversed and the cause remanded. Reversed and remanded. Adopted December 18, 1888.