Scott v. Pettigrew

• Decision Date: 18 December 1888
• Citation: 12 S.W. 161
• Parties: SCOTT <I>v.</I> PETTIGREW <I>et al.</I>
• Court: Texas Supreme Court

12 S.W. 161

SCOTTv.

PETTIGREW et al.

Supreme Court of Texas.

December 18, 1888.¹

Commissioners' decision. Appeal from district court, Bell county; W. A. BLACKBURN, Judge.

Action of trespass to try title to land, brought by James L. Scott against T. L. Pettigrew and others. Judgment for defendants, and plaintiff appeals.

A. J. Harris, for appellant. C. L. Cleaveland, for appellees.

ACKER, J.

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 11-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 fieldnotes 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 8,000 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 3,520 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 cotton wood 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." No 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 north-west 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 north-west, 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 south-east, 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 north-east 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...