Jacob Kuechler v. W. S. G. Wilson et al., 82 Tex. 638

GARRETT, Presiding Judge,

Section B.—Appellant’s first assignment of error relates to the exclusion of the certificates of James Hewlett and G. B. Erath, attached to the sketch of surveys from the Land Office offered in evidence by him, and admitted except as to the certificates, which were excluded on objection by the defendants that they were not competent evidence. The certificate of the Commissioner of the Land Office attached to the sketch was, “that the above is a correct copy of sketch file Ho. 7, Bell County, now on file in this office,” and was admitted with the sketch.

Those excluded were: “I certify the above representations to be correct and the connections to be as represented. Caldwell, 6th August, 1850. [Signed] G. B. Erath.” And, “State of Texas, District of Milam: I do certify the above sketch is a correct representation of the survey returned to this office by W. W. Oxsheer, deputy surveyor for said district.

Given at Caldwell, this 6tli day of August, 1850. [Signed] James Howlett, district surveyor.” The map or sketch includes the Smith and the Walker surveys and the vacant land north of the Smith, and the configuration of the surveys tends to sustain plaintiff’s contention as to the true position of the northwest corner of the Smith. As an archive of the General Land Office, the copy of the map duly certified by the Commissioner was proper evidence; but the certificates of the surveyors attached thereto were inadmissible to prove any disputed fact, and were properly excluded by the court. 1 Whart. on Ev., sec. 120.

That the representations on the map were correct was the opinion of the surveyor. . The second assignment of error is: “The court erred in permitting the defendants to read in evidence to the jury, over plaintiff’s objection, the following words, to-wit: ‘Witness did not understand the first part of intgy. 10, F. P.,’ occurring in the answer of the witness D. D.

Felson to the tenth interrogatory propounded by defendants, more fully set out and explained in plaintiff’s bill of exceptions.” This occurred in taking the deposition of the witness Felson, and was in reply to an interrogatory, it must be presumed, as none appears in the bill of exceptions, as to where, from general reputation in the neighborhood,- the Alexander and Walker lines ran. His answer as written by the notary public was: “To the tenth direct interrogatory witness answers: There was no general reputation in the neighborhood, while I resided there, as to the west line of the W. D.

Walker and Alexander surveys. [Witness did not understand the first part of interrogatory 10, F. P.] He now says, that it was generally understood in the neighborhood that the west line of said Walker and Alexander surveys was where the line now runs,” etc. The witness signed the deposition, and the officer certified that he subscribed and swore to the same.

The statement contained in the answer is the sworn deposition of the witness, and we do not think it was error to admit it in «evidence.' Appellant’s refused charges, which are the basis of the third and fifth errors assigned, are as follows: 1. “If they (the jury) believe from the evidence in this case that the southwest corner or the south line of the Eyan (or Atkinson) survey is a marked corner or line, and has been found and identified on the ground, and that the north line of the James Smith one-third league is identical or coincident with the south line of said Eyan or Atkinson survey, then the call in the Esther Clark patent from the northeast corner of the Eyan survey south 30 degrees east to the southwest corner of the same in the north line of the James Smith one-third league survey will control the length of said line as given in the patent, and the said Clark will extend south to the north line of said Smith, in the absence of any other call or fact indicating to your minds with more certainty the true position of the south line of the Clark survey. 3. “If they (the jury) believe from the evidence in this case that the patent or original field notes of the James Smith one-third league survey called for a bearing tree at the northeast corner of the same, and that at the time said survey was originally made such tree actually existed and could be found and identified on the ground, then, in contemplation of law, the north line of said Smith survey was a marked line, and the call in the Esther Clark patent for said north line and northeast corner would control the distance given in said Clark patent, and said north line of the Smith would be the south line of the Clark in the absence of any other call or fact more certainly indicating to your minds the true position of said Clark south line; and in this connection you are charged that when objects, natural or artificial, are called for in the field notes of official surveyors, the law presumes that such officers report their work truthfully and correctly—that such objects actually existed on the ground as called for; and this presumption continues until the contrary is proved.” There was no call in the field notes of the Eyan survey for the Smith survey at all; and it was made about eleven years later. ¡Nor was there evidence of any marked line or corner on the line of the Smith survey as claimed by the plaintiff.

The court in its charge to the jury instructed them that there was no testimony tending to show that the lines of the Esther Clark survey were marked upon the ground, and in the absence of such testimony they would, as to the Walker and Alexander surveys, find the true position of their lines where the Clark abutted upon them, and that these would be the true boundaries; and as to the James Smith survey, they should find whether its north line was run, or when plaintiff’s location was made it was an established or marked line; that in either event, and the locality of the line could be established, it would be the proper boundary as between the Smith and Clark; and this, although the original marks had been effaced.

The jury were also told, that if no lines or corners of the surveys could be found or identified on the ground they should look to the field notes of adjacent surveys in evidence before them, and if they could be identified they should begin on them and locate the lines of the surveys in question by running course and distance; but that this should only be done when the boundaries of a survey could not be satisfactorily ascertained by its own calls and field notes.

The charge of the court was full and clear on the proposition that the Clark survey would extend to the north line of the Smith survey, and there was no error in refusing the special charges numbered 1 and 3, if, indeed, they were not objectionable as being argumentative and not called for by the facts.

There was no error in the refusal of the second special instruction requested by the plaintiff—to the effect that if the jury believed from the evidence that the south line of the Atkinson (or Eyan) survey was a marked line, and that the north line of the Smith one-third league was identical with the same, then the south line of the Clark survey would be coincident with the north line of said Smith survey—for the same reason that it was proper to refuse the first special instruction requested, and it would also tend to confuse and mislead the jury by giving undue importance to the south line of the Eyan survey.

The fact that the south line of the Eyan survey was a defined and marked line, and that it was coincident with a line which the surveyors in 1850 (eleven ¡rears after the survey of the Smith one-third league was made) may have supposed to be the north line of the Smith survey, although the field notes do not call for the Smith survey, was but a circumstance in evidence to aid in identifying the north line of the Smith, and it should not be given undue prominence in the charge.

The sixth assignment of error is: “The court erred in refusing to give the special charge number 4 asked by plaintiff, to the effect that if they believed from the evidence that it was the intention of the State by its patent to Esther Clark to grant to her all the unappropriated land between the surrounding or abutting surveys named in the patent, then the lines of such surveys would be the lines of the Clark.” There was no error in refusing this charge, because it was fully covered by the charge of the court already given.

The jury were fully instructed that the unappropriated land between the surrounding surveys was included in the patent to Esther Clark, and that it was their duty to determine the boundaries of the Smith, Walker, and Alexander surveys as the boundaries of the Clark survey. Special instructions numbered 5 and 6 requested by the plaintiff were as follows: “5.

If, when a survey was originally made, its lines and corners were actually run and marked upon the ground and fixed by objects natural or artificial, so that a short time after such survey was first made its lines and corners could be traced and identified by the objects called' for in the field notes, then in contemplation of law such lines and corners are marked lines and corners for all time to come, and the fact that after many years the objects called for decay or become obliterated and can no longer be found, does not change the rule. “6.

If they (the jury) believe from all the evidence in this case that the lines and corners of the W. D. Walker and George Alexander surveys were actually run and marked upon the ground by the original surveys, then it is their duty, first, to determine if possible from all the evidence before them where on the ground the west lines and corners of said surveys were run and established by said original surveys, and if they can ascertain this fact, to establish said lines and corners as they were first established.

If they can not find any traces of the original survey along the west lines of said Walker and Alexander, and on the north line of said Alexander, then they will establish said west lines and north line by course and distance from some known or identified object called for in the field notes of said surveys.” These are made the basis of the seventh assignment of error.

The court had already instructed the jury in effect that they were to find whether the lines of these surveys were ever established or marked lines, and if they were and could be identified they would be the proper boundaries of the Clark survey, although the original marks had been effaced. Because the jury had already been fully instructed as to the points embraced in these requested instructions, there was no error in refusing them.

The ninth assignment of error is: “The court erred in the fifth paragraph of its charge, wherein the jury are instructed that if the north line of the Smith survey is an open line, or if its location on the ground can not now be shown, the south line of the Clark survey must be fixed by the other calls in the Clark grant; because the jury should have been instructed, under the circumstances of this case, that the south •line of the Clark must be identical with the north line of the Smith, wherever they might fix that under proper instructions.” That portion of the charge complained of is as follows: “As to the Smith survey, you will find whether, when its north line was run or when plaintiff’s location was made, it was an established or marked line, and if you find either to be the case, and the locality of the line can now be identified, such line will be the proper boundary as between the Clark and Smith surveys, and that, too, although the original marks have been effaced.

But if the north line of the Smith is an open line—that is, a line through the prairie with no marks upon it—or if it was once a marked line but its location on the ground can not be shown, the proper south line of this part of the Clark survey must be fixed by the other calls in the grant—that of the Clark.” When the junior survey has not been made upon the ground, and the calls are for the surrounding surveys, the lines of such surveys will be the lines of the junior survey.

But the jury had been fully instructed as to every method to which they might resort in order to fix the north boundary line of the Smith survey; and having exhausted every method to ascertain the boundary without being able to identify it, we think that in the absence of proof that the Clark survey had not been actually surveyed on the ground, the presumption should obtain that it had been so surveyed, and its calls for course and distance should be finally resorted to.

There is no proof in the record that the Clark survey was not actually run out on the ground, and there is some, such as a discrepancy between the length of some of the lines of the Clark and those of the contiguous surveys, which would indicate that some of the lines at least had been run. The assumption by the court in its charge that the Clark survey had not been actually made upon the ground, was made no doubt from the fact that all the vacancy between the older surveys seemed to have been appropriated by it.

The surveyor Green, who made the Clark survey and who was present and aided in making the original survey, afterward pointed out as the northwest corner of the Smith survey the corner claimed by the defendant Wilson, and the distance from the northeast corner of the Ryan survey to the north line of the Smith as claimed by the defendant is 387 varas, while the distanee called for in the Clark field notes is 361 varas.

We think that in consideration of the fact that the jury had been instructed by the' court in effect to identify if possible the north boundary line of the Smith survey as the south boundary of the Clark, and fully instructed as to how they should do so, and of the further fact that there is evidence tending to show that some of the lines of the Clark survey had been made on the ground, and especially the one in question, the charge of the court complained of was not erroneous, or if error immaterial.

The tenth assignment of error is: “The court erred in the seventh paragraph of its charge concerning the lines and corners of the Walker and Alexander surveys, in not limiting the jury in their search for the marked lines and corners to such marks as were made in the original survey, and the identification of lines and corners to such as were made in the original survey.” Upon an examination of this paragraph of the charge we think the objection is not well taken; for while the paragraph itself may not limit the jury in their search to the original lines and corners, still, that is the effect of it, and especially when taken in connection with the other paragraphs of the charge. ' The twelfth paragraph of the charge complained of under the twelfth assignment of error was correct.

It was as follows: “With reference to this branch of the case (the issue between plaintiff and defendant Wilson), you are further instructed, that if the locality of the Smith north line can not now be identified by marks on the ground, but you find that it was once a marked and established line, and that it can still be identified by other calls in the grant, or by calls or field notes of adjacent surveys made about the same time with it, this would be sufficient to show where the north line of the Smith is, as that expression is meant to be used in the paragraph of the charge marked 5.” The objection is that it was upon the weight of evidence, and virtually excluded from the jury the evidence introduced as to the locality of the Ryan survey made eleven years later.

It gave the correct rule for ascertaining the line in the absence of marks on the ground, and the only purpose of the introduction in evidence of the field notes of the Ryan survey would be to corroborate any marks or indications found on the ground tending to show that the Smith line was identical with it. But if no marks whatever were found, it would only be proper to resort to the calls of the Smith survey, or those of adjacent surveys made about the same time; certainly not to a survey made eleven years later, and whose calls made no reference whatever to the Smith survey.

The whole trouble may have grown out of a mistake in the Ryan survey. It is contended that the verdict was not responsive to and does not dispose of all the issues made by the pleadings of the parties and submitted by the charge of the court. The defendant Wilson had pleaded in reconvention to be quieted as to his title to the land claimed by him, and the court charged the jury to find with reference to this issue, but the verdict was a general verdict in behalf of the defendants.

When appellant’s motion for a new trial was presented the court permitted the defendant Wilson to withdraw his plea in reconvention and overruled the motion. We are of the opinion that the trial court should not permit a pleading to be withdrawn after verdict; but do not think the error was such as the plaintiff could complain of in this case, as there could be no possible injury to him. It has been held, in Johnson v.

Newman, 35 Texas, 166, that a failure to find on such an issue, and where there was a general verdict “for the defendants,” was a finding merely that both parties had failed to make out their titles, and that a general judgment that the plaintiffs take nothing was the judgment that should have been rendered. Such was the judgment rendered in this case. Adopted December 22, 1891. The fifteenth and sixteenth assignments of error, that “the court erred in overruling plaintiff’s motion for a new trial,” and “the verdict is contrary to the law and the evidence,” are too general to require notice by us.

We are of the opinion that the record does not disclose any error for which the judgment of the court below should be reversed, and report the case for affirmance. Affirmed.