Bell v. Preston

• Decision Date: 22 October 1898
• Parties: BELL et al. v. PRESTON et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

47 S.W. 375

BELL et al. v. PRESTON et al.¹

Court of Civil Appeals of Texas.

October 22, 1898.

Appeal from district court, Cooke county; D. E. Barrett, Judge.

Action by George A. Preston and others against R. V. Bell and others to recover possession of land. There was a judgment for plaintiffs, and defendants appeal. Reversed.

J. T. Adams and Stuart & Bell, for appellants. Davis & Garnett, for appellees.

STEPHENS, J.

On March 1, 1855, two surveys in the name of Estevan Mora, one of 640 acres, and the other of 320 acres, were made in Warren's bend, in Cooke county, by a deputy surveyor of that county. The larger survey begins on Red river, where none of its calls can now be found, and runs "south, 3,804 varas, to the southeast corner of said [Elijah] Wright [survey]; thence west, 131 varas, to a mound in small prairie, from which a post oak marked `W' bears north, 19° east, 19 varas; thence south, 185 varas, to a post; thence east, 1,081 varas, to a post, from which a red oak, 20 in. dia., bears south 231 varas, marked `W'; thence north" to the river, and, with its meanders, to the beginning. This survey was patented September 12, 1859. The other Mora survey, which was patented October 19, 1857, begins, as described in its field notes, "at the southwest corner of Estevan Mora's survey of 640 acres, a rock mound, from which a post oak marked `W A' bears north, 19° east, 17 varas; thence south, 900 varas, a post; thence east, 1,843½ varas, a post; thence north, 1,095 varas, the southeast corner of the W. H. White survey; thence west 762½ varas, the southwest corner of said White survey; thence south, 195 varas, the southeast corner of said Mora survey; thence west, 1,081 varas, to the place of beginning." As originally recorded in the surveyor's record, the field notes of this survey placed its beginning corner and the southwest corner of the larger survey 231 varas north of the "rock mound, from which a post oak marked `W A' bears north, 19° east, 17 varas." But the call "thence south 231 varas" was, for some reason and at some time not disclosed, marked out on the record, and not carried into the patent.

Appellees, the admitted owners of the larger Mora survey, brought this suit against the appellants, the admitted owners of the smaller Mora survey, to recover all land north of an old marked line running east from the above corner, witnessed by the "W A" post-oak tree, which corner and line are both still found upon the ground. Appellants disclaimed as to the larger survey, but insisted that the strip 231 varas wide just north of this line was a part of the smaller tract.

The court submitted the issue of boundary thus joined to the jury, as follows: "(2) In determining the location of surveys, marked trees and lines, when found upon the ground and identified, control calls for course or distance. (3) The two Mora surveys were made upon the same day and by the same surveyor, and the field notes of both of them should be looked to in determining the position of either of them upon the ground. The 320-acre Mora survey calls to begin at a point from which a post oak marked `W A' bears north, 19 degrees east, 17 varas, which point is designated as the southwest corner of the 640-acre survey. Now, if this tree can be found on the ground and identified as the one mentioned in the field notes, this will indicate the true southwest corner of the E. Mora 640-acre survey, and the true northwest corner of the E. Mora 320-acre survey; and, if the defendants are in possession of any land north of a line running east from said tree, you will find for the plaintiffs; otherwise you will find for defendants."

Besides complaining of this charge, appellants assign error to the refusal of the sixth special charge requested by them, reading: "It is your duty, gentlemen of the jury, to determine what land was intended by the surveyor who surveyed the two E. Mora surveys to be covered by said E. Mora surveys, and in so determining you will look to all the facts and circumstances introduced in evidence before you; and unless you find and believe, after taking into consideration said facts and circumstances, that the preponderance of the evidence introduced herein shows the land in controversy was intended by said surveyor to be a part of the E. Mora 640-acre survey, you will find for the defendants."

In thus submitting the issue, the court made the latter part of the first call in the smaller Mora for its beginning corner control, not only the first part of the same call and its further calls for the W. H. White survey, but the calls of the larger Mora as well, and, in effect, took the case from the jury. Unless, then, that part of the call for the point (rock mound) ...