Ayers v. Watson

• Decision Date: 05 January 1891
• Citation: 11 S.Ct. 201,137 U.S. 584,34 L.Ed. 803
• Parties: AYERS et al . v. WATSON
• Court: U.S. Supreme Court

137 U.S. 584

11 S.Ct. 201

34 L.Ed. 803

AYERS et al. v. WATSON.

January 5, 1891.

Wm. E. Earle, for plaintiffs in error.

W. Hallett Phillips, for defendant in error.

BRADLEY, J.

This case has been before us on two former occasions, in October term, 1884, (Ayers v. Watson, 113 U. S. 594, 5 Sup. Ct. Rep. 641,) and in October term, 1889, (Ayers v. Watson, 132 U. S. 394, 10 Sup. Ct. Rep. 116.) It has had six trials by jury, in three of which the juries disagreed, and in the other three verdicts were found for the plaintiff. The case comes before us, as heretofore, on a bill of exceptions, and the first assignment of error relates to a matter of a preliminary character. When the cause came on for trial, the defendant below, Ayers, asked leave to file an amendment to his application for the removal of it from the state court, for the purpose of making additional allegations as to the amount in controversy, a to the citzenship of the parties, etc. The court refused to allow such amendment, and the defendant excepted to this ruling. The allowance of such an amendment (if allowable at all) is a matter of discretion, and error cannot be assigned upon the decision. When the cause was here the first time, one of the errors assigned was that the court below had refused to remand the cause to the state court. We then held that in this refusal there was no error, and we do not see how this question can be further litigated between the parties. The principal facts of the case, as elicited by the evidence and shown in the bill of exceptions, are stated in the reports above referred to, and only so much will be repeated as is necessary to an understanding of the points now raised. The plaintiff, Watson, claimed title to one-third of a league of land situated in Bell county, Tex., being a rectangular tract granted by patent to the state of Texas to the heirs of Walter W. Daws, September 16, 1850, the location and boundaries of which are not disputed; and, on the trial, it was agreed by the parties that the plaintiff was entitled to all the right, title, and interest granted by said patent. The defendant, Ayers, claimed title under a grant of the government of Coahuila and Texas to one Maximo Moreno, dated October 18, 1883, for a tract containing 11 leagues of land and it was admitted on the trial that the defendant held an owned all the right, title, and interest created by the said grant. This being the older title, the verdict should have been for the defendant if he had shown that the Moreno grant covered the Daws tract owned by the plaintiff; and whether it did or not was the question in controversy in the cause. The Maximo Moreno grant lies on the north side of the river San Andres, with a perpendicular breadth, easterly and westerly, of about 7 miles, and extending back into the country, north-north-eastearly, about 14 miles. The Daws tract, owned by the plaintiff, is situated near the north end of the Maximo Moreno grant, about midway between the eastern and western lines of the same, and the question is whether the north boundary line of the Maximo Moreno grant is situated so far to the north as to include the plaintiff's land, or whether it runs southwardly of it.

The field-notes of the Moreno grant, embodied in the grant itself, are in the spanish language, and, translated into English, 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 having 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° west, there is a hackberry 24 in. dia., and 15 varas to the south, 34° west, there is an elm 12 in. dia., a line was run to the north, 22° east, 22,960 varas, and planted a stake in the prairie for the second corner; thence another line was run to the south, 70° 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° 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° west, there is a cottonwood with two trunks, and 16 varas to the south, 11° east, there is an elm 15 in. dia.; thence, following up 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.' The annexed sketch shows the outline of the tract, and the relative location and size of the Daws patent owned by the plaintiff:

The beginning corner, A, opposite the mouth of the Lampasas creek, and the S. E. corner, D, at the 'box-elder,' or 'double cottonwood,' on the bank of the river, are well known and conceded points; and the location of the long easterly line, C' D, is fixed by marked trees, concurred in by both parties; and there is no controversy about the position of the westerly line, A, B, the first line of the survey. The difficulty is to locate the back, or northerly, line. The defendant, as owner of the Moreno grant, contends for the line from B to C, which includes the greater part of the plaintiff's tract; and the plaintiff contends for the line from B' to C', which passes south of his land. If either the N. W. or N. E. corner were known, the controversy would be at an end; but they are not fixed by any monuments which the parties agree on. The N. W. corner, at the end of the first line in the field-notes, was a mere stake set in the prairie, and of course soon disappeared. The N. E. corner, at the end of the second line, was marked by 'two small hackberries;' but no such trees have been found at or near the point, C, where the north line, run by compass and chain according to the survey, would meet the easterly line. In 1854, one Samuel Bigham, a surveyor, under an order of the district court of Bell county, surveyed the Maximo Moreno grant, commencing at the beginning corner, A, and following the field-notes to the end of the second line, and was unable to find the N. E. corner, or the easterly line. Some months afterwards he tried again, and, by running across the front of the survey, the distance usually taken for an 11-league front, (13,750 varas,) he found the eastern line, marked with blazes, which led him to the south-eastern corner of the grant, D, when he found and identified the trees called for in the field-notes, From this point, following the line back N., 20° E., he found the line plainly marked with old blazes for 26,400 varas, (the length called for in the field-notes,) crossing Big Elm or Cow creek at the exact distance from the S. E. corner required by the field-notes; and proceeding on ward about 560 varas further, on the same course, he found two small hackberries in Cow-Creek bottom, at which point, as he testifies, the line gave out. The line passed between these hackberries, and they were each marked on the inside with old blazes facing each other. He took those hackberries to be the identical ones called for in the grant, and fixed upon that point as the N. E. corner of the survey. This is the point which the plaintiff claims to be the true N. E. corner, and is marked 'C" in the sketch. A line run from this point N., 70° W., the reverse of the line called for in the survey, would be the line B'C' on the map, and would fall to the south of the plaintiff's land. But B', the point at which this line would intersect the west line of the survey, would be only about 18,700 varas from the beginning corner, instead of 22,960 varas, as called for in the field-notes, or a deficiency of over 4,000 varas.

On the other hand, if the field-notes are followed, by running the first line from the S. W. corner N., 22° E., 22,960 varas, and the second line thence S., 70 E., 12,580 varas, the upper line, B C, would be followed, but the distance, 12,580 varas, would fall short of the eastern line at C by about 570 varas, the true distance from B to C being 13,150 varas, instead of 12,580. Then, running from C to D, the whole distance is found to be about 30,400 varas, instead of 26,400, (as called for in the grant,) or about 4,000 too much; and the distance from C to Cow creek is found to be 7,500 or 8,000 varas, instead of 3,520, as called for in the field-notes, or 4,000 too much. So that the N. E. corner of the tract, as fixed by Bigham at the two hackberries, corresponds very nearly with the several distances called for on the east line, but makes the west line 4,000 varas too short; while the N. E. corner, as fixed byrun ning the west line its full length, as called for by the field-notes, and then running the north line as directed therein, and extending it so as to meet the easterly line, makes the easterly line 4,000 varas too long. The truth is, the original survey must in some parts have been imperfectly executed, or errors must have crept into the field-notes. Frank W. Johnson was the surveyor, long well known as principal surveyor of the Austin and Williams colony. His deposition was taken in 1878, and again in 1880, 45 and 47 years after the survey was made. He does not say what time of the year he made the survey, but William Duty, his chain-bearer, says it was in the spring. Both say that it was made in 1833, and was never made but once. Johnson is positive that he followed the courses and distances designated in the field-notes of the grant for the first two lines, but that the last line, the easterly one of the tract, though run and marked, was not measured, but only estimated as to length or distance. But the field-notes give the distance from the N. E. corner to Cow creek 3,520 ...