R. M. Thompson v. W. R. Langdon et al., 87 Tex. 254

GAINES, Chief Justice. This was an action of trespass to try title brought by the plaintiff in error against defendants in error. The trial court gave judgment for the defendants, and upon appeal that judgment was affirmed by the Court of Civil Appeals. To reverse the judgment of affirmance this writ of error is prosecuted. On the 23rd day of March, 1881, one William Shaphard, being the holder of a valid land certificate for 640 acres, located it upon' the land in controversy, and in due time .caused the premises to be surveyed and the certificate and field notes to be returned to the General Land Office.

He subsequently, by an instrument duly executed and acknowledged, conveyed the certificate to the plaintiff in error. On Rovember 15, 1881, one JD. B. Corley applied to the surveyor of the county to purchase the land under the Act of July 14, 1879, as amended by the Act of March 11, 1881. His application and field notes were duly recorded and returned to the General Land Office, and the survey was patented to defendant Langdon, as his assignee.

The Act of July 14, 1879, withdrew all bodies of the unappropriated public domain in the organized counties of the State, which consisted of 640 acres or less, from location, and provided for their sale. Corley’s application to purchase was made upon the theory that the unappropriated land upon which Shaphard had filed his certificate consisted of less than 640 acres, and that therefore the location was void and the land was subject to purchase under the provisions of the Act of 1879 and the Act of 1881, amendatory thereof.

The land in controversy is shown upon the following map,' and is bounded on the north by survey number 103, on the east by the lunatic asylum lands, on the south by survey number 48, and on the west by surveys numbers 105, 106, and 107. The heavy lines show the land as claimed by plaintiff. The dotted line shows the south boundary of No. 104 as claimed by defendants.

The field notes of survey number 104 are as follows: “Beginning at corner A, on the river, which is southwest corner of number 103; thence east 5746 varas, stake and mound; thence south 1344 varas, stake and mound; thence west 5006 varas, stake from which a willow 6 inches in diameter bears north 68) west 10 varas, a willow 7 inches in diameter bears north 79 west 10 varas; thence down the river with its meanders to the place of beginning, containing 1280 acres.” The field notes of number 105 are as follows: “Beginning at a stake set for upper corner of number 104; from which a willow 6 inches in diameter bears north 68) west 10 varas, a willow 7 inches in diameter bears north 79 west 10 varas; thence east 2488 varas to a stake and mound; thence south 672 varas to a stake and mound; thence west 2888 varas to a stake from which a mesquite 6 inches in diameter bears south 26 east 60 varas, a mesquite 3 inches in diameter bears south 17) east 80 varas; thence down the river with its meanders to the place of beginning, containing 320 acres,” It appears by the findings of the trial court, which were approved by the Court of Civil Appeals, that of the corners and .lines called for in the field notes of the two surveys, only the northwest corner of number 104 and the southwest corner of number 105 (marked A and J, respectively) could be found upon the ground.

The distance between the north line of number 104 and the south line of number 105 as established by these corners is from 2166 to 2185 varas. According to the field notes, the distance should be 2016 varas. There is, therefore, an excess in the width of one or of the other of the two surveys, or of both together, of 150 varas, at least. Upon these facts the trial judge concluded, that the excess should be apportioned between the two surveys, and that in consequence the south line of number 104 should be established 100 varas further south than the distance called for in its field notes.

The result of this conclusion was to reduce the area of the vacant land located by Shaphard to less than 640 acres, and to render that location void, by reason of the fact that it had been withdrawn from such appropriation by the statutes above cited. Judgment was accordingly rendered for the defendant below, the defendant in error in this court. The ruling of the trial court was sustained by the Court of Civil Appeals, and the judgment was affirmed. This we think was error. The lines of a grant must be established by the calls in the field notes.

If these calls are inconsistent, then certain rules of construction and even parol evidence may be resorted to in order to resolve the doubt and to establish the line which was actually run by the surveyor. It is but a case of a latent ambiguity in a written instrument. A writing, unambiguous upon its face, may become doubtful when applied to the subject matter of the description. On the other hand, if there be no conflict in the calls found in the field notes of a survey, there is no room for construction, and the calls must speak for themselves.

To permit the introduction of parol evidence to vary the calls would be to violate the familiar rule, that extraneous evidence is not permissible to vary a written instrument. Such is the case before us. hi one of the objects called for in the field notes of survey number 104, for the purpose of identifying its corners, were found upon the ground, except those used to designate the place of beginning.

If the north boundary line or the northwest corner of number 105 had been called for, then parol evidence would have been admissible in order to show where that line was actually run, and in case of a conflict the call for distance would have been controlled by the establishment of such line. The field notes of survey number 105 call to begin at the southwest corner of number 104, and show that it was the intention of the surveyor to leave no vacant land between the two surveys.

It suggests that the surveyor made a mistake in his call for the length of the east line of number 104, or of the corresponding line of number 105, or in both of these lines. But we apprehend that it is not proper to resort to the calls in the field notes of another survey, although made at the same time and by the same surveyor, to create a conflict in case none arises from the calls of the survey in question when applied to the objects called for as actually found on the ground.

Survey number 104 can be established by course and distance from its beginning corner, without disregarding any call contained in them, and in our opinion it should be so established. It was agreed by the parties to the suit, that if the south line of the survey be fixed by the length of the east line as called for in the field notes, there were more than 640 acres of vacant land in the tract filed upon by Shaphard. It follows, therefore, that his location was valid and that defendants’ vendor acquired no title by his purchase. We find nothing in Welder v.

Carroll, 29 Texas, 318, inconsistent with the views expressed in this opinion. This makes it necessary that we should determine a question raised in the trial court, but passed upon neither in that court nor in the Court of Civil Appeals. In order to show title to the land sued for, the plaintiff introduced in evidence a conveyance by Shaphard to him of the certificate executed after it had been located upon the land. It is contended that the sale of the certificate did not pass title to the land. But it is held in Lewis v.

Johnson, 68 Texas, 448, that “the sale of a certificate after location operates the equitable transfer of the land located under it.” This ruling is in accordance with the previous intimations of the court, and we do not doubt its correctness. Simpson v. Chapman, 45 Texas, 566; Hearne v. Gillett, 62 Texas, 25. We have held, that a sale by an administrator of a certificate after it has been located will not pass the title to the land; but that ruling rests upon a different principle. East v. Dugan, 79 Texas, 329.

There being no controversy about the facts of this case, the judgment is reversed and here rendered for the plaintiff in error for the land in controversy, and for all costs. Reversed and rendered. Delivered October 24, 1894.