Fagan v. Stoner

• Decision Date: 28 January 1887
• Citation: 3 S.W. 44
• Court: Texas Supreme Court
• Parties: FAGAN and others <I>v.</I> STONER and others.

3 S.W. 44

FAGAN and others

v. STONER and others.

Supreme Court of Texas.

January 28, 1887.

Appeal from Victoria county.

Trespass to try title. Judgment for Stoner and others, defendants. Plaintiffs appeal.

John & Joseph Fagan, for appellants. Glass & Callender, for appellees.

GAINES, J.

This is in form an action of trespass to try title, brought by appellants against appellees, but its decision depends upon the determination of a question of boundary. It is conceded that the parties have title to the lands called for in the conveyances under which they respectively claim. The league granted to Edward McDonough and that granted to Juan Gonzales are bounded on the north-east by Calleto creek and the Guadalupe river; the former stream being a tributary of the latter. The south-east boundary of the McDonough grant and the north-west boundary line of the Gonzales are coincident, and the question is as to the true location of that line. If the evidence shows that the McDonough grant, as originally surveyed, is 2,560 varas wide, instead of 2,000 varas, as called for by the field-notes in the title, then appellants should have prevailed in the court below, and the judgment should be reversed. If the evidence does not show this, the judgment must stand.

The case made in the court below seems to us to present purely a question of fact, although the assignments of error all appear to be founded upon the proposition, in substance, that the court erred in holding that the call for course and distance should prevail over a marked line. We understand the true rule to be that when a marked line is called for in a grant, and that line can be identified, it will control a call for course and distance, — not that, because a marked line is found upon the ground, the distance must be extended so as to reach it, without proof that it was the line originally run by the surveyor as one of the boundaries of the survey. The fundamental principle in all cases is to ascertain where the survey was actually made upon the ground; or, as it is sometimes expressed, the footsteps of the surveyor must be followed, if their locality can be traced, although the effect may be largely to increase or diminish the quantity of land which purports to be conveyed. There is nothing in the record to show that the court below, in deciding the case, did not keep in view this cardinal rule. The description of the land in the McDonough grant names neither marked lines nor course. It is as follows: "Composed of 2,000 Mexican yards, on the Guadalupe river and Calleto creek at their junction, and in the depth on the upper line 12,050 varas, and on the lower line 12,910 varas. It is bounded on the north by said river, on the north-west by vacant lands, on the south-west in the same manner, and on the south-east by citizen Juan Gonzales." The north-west boundary line of this survey is well established by the evidence. The distance called for in the grant, measured from this boundary, gives the line in controversy as appellees claim it....