Booth v. Upshur

• Decision Date: 01 January 1861
• Citation: 26 Tex. 64
• Parties: W. M. BOOTH v. H. L. UPSHUR AND OTHERS.
• Court: Texas Supreme Court

26 Tex. 64

W. M. BOOTH

v.H. L. UPSHUR AND OTHERS.

Supreme Court of Texas.

1861.

Where several descriptive objects are specified in a grant or survey, and an effort is made to identify the land by following the calls, and some one of the objects varies from the description of it in the grant or survey, proof of such discrepancy must first be made before other evidence in explanation of it can be admitted.

But where such discrepancies are shown to exist, a question of fact is fairly raised for the jury to decide, in the light of all the surrounding circumstances adduced in proof, as to which one of the objects expressed in the grant or survey most truly indicates to their minds the locality of the land in question.

The effect of calls found in a grant, and the comparative weight or importance to be given to one rather than another, are not established by law. Wherefore the controlling call cannot be determined by merely looking at the face of a grant containing many calls.

Though courts have generally agreed that amongst a diversity of calls, preference, everything else being equal, is to be given first to the natural objects called for, next to the artificial objects, and lastly to the course and distance indicated, yet, when a discrepancy among the calls is established, and the circumstances in proof show that course and distance are the most certain and reliable evidence of the true locality, then course and distance will prevail.

A discrepancy between the calls in a survey being established, and evidence being offered to prove error in the initial point called for, and to show its true position, it is error to exclude such evidence and to instruct the jury that they must presume the initial point to be at the place designated in the survey. [6 Tex. 502;9 Tex. 97;16 Tex. 96;19 Tex. 460;22 Tex. 633;post, 248, 359, 436.]

The testimony of the surveyor who made the survey is admissible to prove error in the establishment of such initial point, and to explain how such error originated; and also to show its true position as ascertained by him since the running of the survey.

Where a survey lying between two older surveys calls for lines in each of them, and also for quantity, course and distance, and such survey is delineated not by permanent or well known monuments, but by calls which may be suppositious, and the area of such survey is not sufficient to compromise all the space between the two other surveys for which it calls, its true locality is to be determined by the jury according to the relative prominence, certainty and notoriety of its several calls.

Where a party has filed land certificates or scrip with a district surveyor for location on vacant land, and afterwards withdraws such files and substitutes other certificates in their stead, it seems that he loses the benefit of his original entries, and his new files will only date from the time of the substitution.

ERROR from Travis. Tried below before Robert J. Townes, Esq., special judge.

This suit was instituted by the appellant, Walter M. Booth, in the district court of Travis county, for a mandamus to compel the defendant Upshur, district surveyor of Travis land district, to survey several tracts of land in Travis county, which the plaintiff alleged were vacant lands upon which he had located sundry land warrants and certificates. Several other persons were made defendants on account of their claims to portions of the lands claimed by the plaintiff under his entries; and as to them, plaintiff prayed that he might be quieted in his titles, etc. With the exception of J. A. Black, these defendants were the owners of contiguous tracts, and in their answers denied that the lands claimed by plaintiff were vacant or subject to location as public domain; but on the contrary, as they averred, they were comprised in the tracts of which they were respectively the owners.

The defendant Black alleged that the lands in question were vacant, but that previous to the plaintiff's entries upon them, he had filed with the district surveyor certain certificates and scrip for location upon portions of such vacant lands, which certificates and scrip he had afterwards, and subsequently to plaintiff's entries, withdrawn, but at the same time had substituted therefor other certificates and warrants, under which he now claimed; and he prayed that the surveyor be required to make the surveys for him accordingly, and that he be quieted in his titles, etc.

In order to establish that the land in controversy was vacant and subject to his locations as public domain, the plaintiff introduced as a witness John Harvey, who made the contiguous surveys, by whom he proposed to prove that the beginning corner of the Caples league, upon which the surveys of that and the other surrounding tracts were dependent, was located erroneously by the witness in making the surveys, and that its true position was at a different point than that designated in the field notes.

The court below excluded this evidence, and instructed the jury that they must presume the initial point of the Caples survey to be at or near the locality designated in the survey.

I. A. & G. W. Paschal, for the plaintiff in error.

Hancock & West, for the defendant in error, insisted that there was no error in the charge of the court below, or in the exclusion of the evidence offered by the plaintiff, and cited 1 Pet. Con. 337; 3 Id. 331;4 Id. 650;5 Id. 271;4 Dana, 500;4 Bibb, 329; 2 Term, 59; 1 Id. 74.

ROBERTS, J.

The charge of the court was as follows:

“The jury must determine from the law and the evidence whether the land in controversy was vacant and subject to location by the plaintiff, or whether the same is embraced in the several surveys and patents under which the defendants claim.

In coming to this conclusion they must be governed by the following rules:

1. The initial point of the Caples survey must be presumed to be at or near the corner now known and recognized as the true southwest corner of the Del Valle survey, and not at any other supposed corner of said last named survey.

2. Beginning the Caples survey at said corner, the lines must be run according to courses and distances, without reference to any other supposed corner, about which there was some evidence.”

If the survey was made to commence at the “initial point” referred to in the charge, the Caples tract would be based upon and lie (south) west of the (south) west boundary line of the Del Valle grant.

The “other supposed corner about which there was some evidence,” referred to in the charge, was the fourth corner called for in the Caples survey, being “a stake on Onion creek,” with an elm and black oak marked as bearing trees, and the line from that corner south was proved to be marked about fifty varas, which was as far as the timber reached; and a branch on that southern line was found to be within five varas of the distance from said corner, as called for in the Caples survey. If this corner on Onion creek should be allowed to control the locality of the survey, it would not be based on the (south) west boundary line of the Del Valle grant, as called for in the Caples survey, but would cover a portion of that grant and have for its beginning corner a point over a mile north of east of the southwest corner of the Del Valle grant.

This (south) west boundary of the Del Valle grant was found, but if the survey was run out regarding it as the fourth line as called for, the fourth corner would not be on Onion creek with said bearing trees, and a marked line running to it, etc.; but it would be three or four hundred varas from Onion creek. The said (south) western boundary line of the Del Valle grant neither reaches to or crosses Onion creek, so that there could be no such corner on that line as it is described in the Caples survey. The plaintiff, in order to show that this fourth corner as called for in the Caples survey should prevail over the fourth line as called for in fixing the locality of the Caples tract, offered in evidence the surveys of Bain, Lewis and Little, and a certified sketch from the old map of Bastrop and Travis counties, connecting these surveys with the Caples survey at its beginning corner; and he offered to prove by Harvey, who made all those surveys, that he began the Caples survey at a point which would make the Lewis and Little surveys connect with and adjoin to the Caples survey.

Upon objection all of this evidence was excluded from the jury upon the ground contained in the charge, which in substance was that the locality of the Caples tract must be fixed so as to make its fourth line run upon and with the now known and recognized western boundary line of the Del Valle grant, and that neither the parol or written testimony offered could be admitted to show the said fourth line to beat any other place.

Now, if it was permissible for the jury to give a preference to the fourth corner called for in the Caples survey, in fixing the locality of the tract, rather than the fourth line, and the written and parol evidence offered by plaintiff tended to aid in giving that preference, then the court erred both in the charge and in the ruling upon the admissibility of the evidence. Chief Justice Marshall lays it down as “an obvious principle, that the grant must describe the land to be conveyed, and that the subject granted must be identified by the description given of it in the instrument itself.” Chenoweth v. Haskell, 3 Pet. 92. The two prominent objects specified in the survey here, by which the particular tract of land was sought to be identified, which was intended to be granted, were this fourth corner at a natural object, to wit, Onion creek, aided...