Anderson v. Stamps

• Decision Date: 01 January 1857
• Parties: WILLIAM ANDERSON v. BRITTON F. STAMPS.
• Court: Texas Supreme Court

19 Tex. 460

WILLIAM ANDERSON

v.BRITTON F. STAMPS.

Supreme Court of Texas.

1857.

The lines of the survey, as actually marked upon the ground, if they can be found and traced, will control course and distance. But that is where the actual survey can be found and identified as the same called for in the grant. It is not meant that where the grant calls for certain known and established natural or artificial monuments and boundaries, these may be controlled by parol proof of a survey entirely inconsistent and repugnant to all the calls of the grant. [6 Tex. 502;9 Tex. 97;16 Tex. 74, 96;22 Tex. 285;25 Tex. 512.]

Where a survey is, say in the form of a parallelogram, and calls for previous surveys on three of its sides, the boundaries of such survey are determined by the calls for the previous surveys, and by a fourth line closing the survey according to the calls; and if a mistake has been made in making the survey, so that the actual survey was not made according to the calls, the actual survey must be disregarded, not merely as to the three sides, but, it seems, as to the fourth side also; but there was no proof in this case that the fourth side had been run and marked.

Appeal from Rusk. Tried below before the Hon. Charles A. Frazer.

Suit by appellant against appellee on a promissory note. Answer to the effect that the note was part of the consideration of a tract of one hundred and forty acres of land, sold by plaintiff to defendant, and for which defendant held the bond of plaintiff to make him a title; that the plaintiff could only make a title to about thirty-five or forty acres of the land; that defendant had overpaid plaintiff for the quantity of land to which he could make title, in a certain amount, which he prayed in reconvention; and offered to release the bond for the excess which plaintiff was unable to convey.

The question was, whether the land was included in the Thomas Maxwell survey of three hundred and twenty acres. If it was, or so far as it was, the plaintiff could make a good title, otherwise not. The field notes of the Thomas Maxwell survey were as follows:

Beginning at the S. E. corner of a survey of one-fourth of a league of land made for R. Gonzales, from which a black jack bears N. at 10° E. 9 6-10 varas, another bears S. 29° W. 5 6-10 varas; thence S. 65°>>>> W. with said survey, at 950 varas and at 1,630 varas, branches, twenty-five hundred varas to the S. W. corner of said survey (the R. Gonzales survey), from which a red oak bears S. 25° E. 10 varas, a black jack bears at 9° W., 11 8-10 varas; thence S. 25° E., with east boundary line of a league survey made for William F. Allison, seven hundred and twenty-two and 5-10 varas to a post, from which a black jack bears S. 30° W., 9 6-10 varas, a hickory bears S. 59° E. 3 2-10 varas; thence N. 65° E., twenty-five hundred varas to a post, on the west boundary of a survey in the name of J. M. Martinez, from which a black jack bears N. 35° W., 2 6-10 varas, another bears S. 22°>> E., 5 6-10 varas; thence N. 25° W., with said line (of the J. M. Martinez), seven hundred and twenty-two and 5-10 varas to the place of beginning.

It will be observed that according to the calls of the patent, as above, the tract was a parallelogram, bounded at the time of the survey, on three sides, by older surveys. Within the survey as thus described, there were only thirty-seven and three quarter acres of the land called for in the bond, the balance of the land called for in the bond being to the southward, in the direction of what was vacant land at the time of the original survey or location of the Thomas Maxwell. Since said original survey, this land, which was then unsurveyed, had been surveyed and patented, calling to commence at the S. W. corner of the Thomas Maxwell, to run southwardly, eastwardly, northwardly to the Thomas Maxwell's S. E. corner, and thence by the line of the Thomas Maxwell to the place of beginning.

It appeared from evidence introduced by the defendant that when the survey of the Thomas Maxwell was made, the surveyor mistook the place of the S. E. corner of the R. Gonzales survey; that he in fact commenced the survey at a point near to the old Academy on Forest Hill (which was on the west line of the J. M. Martinez survey, in a line with a projection of the east boundary of the R. Gonzales), and after running some distance, and finding that he was not going in the direction of the S. W. corner of the R. Gonzales, he supposed his compass, which had just met with an accident, was injured, and he abandoned the compass, and went to the S. W. corner of the R. Gonzales, and thence ran the line to the S. W. corner of the survey he was making, which was the third corner, and did not run any further.

A surveyor who was appointed to survey the Thomas Maxwell, reported and testified that he found the beginning corner of the Thomas Maxwell situated 532 varas S. 20 E. (there was a variation of five degrees between the survey of witness and the original surveys.--REPS.) from the place designated in the field notes (the southeast corner of the R. Gonzales), the course and distance of the bearing trees being tolerably accurately described; that from thence there was no line that would run to the S. W. corner of the R. Gonzales; but witness, disregarding course and distance, went to said S. W. corner of the R. Gonzales, that being the second corner described in the Thomas Maxwell field notes, and found it correctly described by the witness trees called for in the Thomas Maxwell patent; from thence to the S. W. corner of the Thomas Maxwell, 682 varas, which corner witness found accurately described by the witness trees; from thence witness could find no line running in the direction called for in the field notes.

Plaintiff offered to prove by a witness that he was along when the original survey of the Thomas Maxwell was made; that the beginning corner of said...