Duren v. Presberry

• Decision Date: 01 January 1860
• Citation: 25 Tex. 512
• Parties: JESSE DUREN v. G. G. PRESBERRY.
• Court: Texas Supreme Court

25 Tex. 512

JESSE DUREN

v.G. G. PRESBERRY.

Supreme Court of Texas.

1860.

The corner of a survey, though a good call, and one which may control mere course and distance, is not necessarily a more certain and material or more notorious object than a marked line and marked trees called for in a grant, and will not necessarily control calls for those objects. 19 Tex. 460.

Where the grant called for the southwest corner of another survey as the beginning corner, and no such bearing trees, or witness trees as those described in the grant were to be found there, nor any marked line running from that corner as described in said grant; but one thousand yards north of said southwest corner on the line of said survey, the witness and bearing trees called for in the grant being found, and also the line called for in the grant running to the second corner: held, that the beginning corner called for as aforesaid did not control in fixing the beginning point, but that it would be established by the other objects called for and found upon the ground; because these facts showed that the call for the southwest corner was a mistake on the part of the surveyor, capable of correction by the other objects which were ascertained and corresponded with the calls in the grant.

APPEAL from Cherokee. Tried below before the Hon. R. A. Reeves.

This was an action of trespass to try title brought by the appellee against several defendants. The appellant, Jesse Duren, intervened in the suit, claiming 287 8-10 acres. The plaintiff claimed under a grant made to Maria Josefa Bersoley of a league of land, and on the trial showed a regular chain of title to himself from the government. The grant, for a beginning point, called for the southwest corner of the Brooks Williams league of land, with certain bearing trees particularly described as to course and distance from the said Brooks Williams' corner, and running north 60° W. to the second corner.

The defendants made no defense; and the intervenor claimed as a pre-emptor of 287 8-10 acres, which had been surveyed and platted, and the field-notes of which had been sent to the general land office, for the purpose of procuring a patent. The intervenor proved that no such bearing trees, or witness trees, as those described in the plaintiff's grant, were to be found at the Brooks Williams southwest corner; nor was there any line marked running from that corner as described in plaintiff's grant. But that one thousand yards north of the southwest corner of the Brooks Williams survey, the witness and bearing trees, or trees corresponding with these as to course, distance and description of trees, were found; and, also, was found a line of old marks running N. 67°>>>> W., running to the second corner mentioned in plaintiff's grant.

The establishment of the beginning corner of the grant at the southwest corner of Brooks Williams' survey is contended for by the plaintiff and resisted by the intervenor, who insists that it is on the league line of the Williams survey, one thousand yards north of said southwest corner.

A jury was waived; the cause being submitted to the court, judgment was rendered for the plaintiff establishing his lines and beginning corner as claimed by him, with a writ of possession and costs of suit.

The intervenor appealed, and presents to this court for review the ruling of the court below, that the southwest corner of the Williams survey should be the beginning point of plaintiff's grant.

J. T. Word, for the appellant. The first point is, shall the call in appellee's grant for the southwest corner of the Brooks Williams league control, to fix the beginning point? or shall the point one thousand yards north of that point, and where the witness trees and an old line are found, corresponding with the calls in the grant, control?

The proof on this point is, that at the southwest corner of the Brooks Williams league, no witness trees can be found, corresponding with those mentioned in the grant. Nor is there any line marked running from that point to the southwest corner, or second corner, mentioned in appellee's grant. According to the calls in the grant, a line should run from the southwest corner of the Brooks Williams league, north 60° west, the proper distance to the second corner; but no such line is found. Now, as there are no witness trees at that place, and no line running from that point to the second corner called for in the grant, the presumption arises that there is a mistake in the calls in the grant. And this presumption is reduced to certainty when the proof shows that, at a point one thousand yards north of the southwest corner of the Brooks Williams league, and on the west boundary line of that league, the witness trees mentioned in the grant are found; the corner is found, and a plainly marked old line running N. 67° W. to the second corner called for in the grant is also found. This shows that that was the starting point actually made--that the line actually run; and that no line was run, nor trees marked at the southwest corner of the Brooks Williams league. That in fact was not the beginning point; but the beginning point is one thousand yards...