Fordtran v. Ellis

• Decision Date: 12 January 1883
• Docket Number: Case No. 518.
• Citation: 58 Tex. 245
• Parties: E. H. FORDTRAN v. V. & O. ELLIS.
• Court: Texas Supreme Court

58 Tex. 245

E. H. FORDTRAN

v.V. & O. ELLIS.

Case No. 518.

Supreme Court of Texas.

Jan. 12, 1883.

APPEAL from Lavaca.Tried below before the Hon. Wm. H. Burkhart.

Appellees brought this action of trespass to try title against appellants, April 21, 1875, claiming the land described in the petition by virtue of patents issued to them, one for one hundred and eighty acres as assignees of W. C. R. Schmidt, dated December 5, 1873, the other for three hundred and twenty acres as assignees of Jacob Kaderli, dated September 3, 1873.

Appellants claimed the land in controversy by virtue of a patent issued to Wade Horton, assignee of John A. Fox, for one league and labor of land, dated April 23, A. D. 1841.The real issue was as to whether or not the land sued for was embraced in the Horton patent, under which appellees claimed.

Trial November 3, 1875; verdict and judgment for appellees for the land, etc., from which this appeal was taken.The errors assigned, and relied on for a reversal of the judgment, were the alleged error in the charge of the court, the refusal to give instructions asked, and that verdict was not supported by the evidence.

The one hundred and eighty and the three hundred and twenty acre tracts claimed by appellees would be embraced in the lines of the older survey for Wade Horton, if the south line of the Horton survey running west should be extended for the distance called for (four thousand four hundred varas), and its call to stop at the east line of the Lewis should be disregarded, which line is an open line in the prairie where the south line of the Horton intersects it.

The appellants' claim was by virtue of the Horton league of land.

The lines of that survey are to the cardinal points of the compass--north, south, east and west.It is situated in a prairie locality.Its calls are to begin on the southwest corner of a survey made for Paulding; thence with the lines of surveys for Paulding and Green, east three thousand five hundred varas to the southeast corner of the Green survey; thence south with the west boundary line of Wood's survey four thousand eight hundred and forty-two varas to its southwest corner, six thousand four hundred varas, to a stake in a mound in the prairie; thence west four thousand four hundred varas to a stake on the east boundary line of a league of land surveyed for Mrs. Mary Lewis; thence north, with the east boundary line of said league, one thousand eight hundred and eighty-nine varas, its northeast corner; same course, two thousand eight hundred and fifty-one, in all four thousand eight hundred and forty varas, to a stake in a mound on the south boundary line of a league granted to Richards; thence east nine hundred varas to Richards' southeast corner; thence northwest to the east line of said league one thousand five hundred and sixty varas, to the place of beginning.

The field notes, as recorded in the surveyor's office, and certified to the land office, are dated--the Horton, September 21, 1838; the Lewis, October 12, 1838; the former made by the principal surveyor, the latter by Thomas Green, his deputy, but certified by the principal.

The certificate to each, as to the time it was made, is that it was made “ since the 1st of February preceding, and according to law.”

There was no other evidence to suggest that the Horton was the earlier survey.

Appellant contended that as the east line of the Sarah Lewis survey was an unmarked line, running through the prairie, therefore the Horton survey was entitled to run its entire call for distance, over seven hundred varas further, in order to find its third corner, and should not be stopped at the line of the Lewis survey.The Lewis survey begins at a stake on the east line of the Chase survey; thence east two thousand five hundred varas, with the line of a league granted to Taylor, to a stake in the prairie; thence north with Taylor's survey two thousand varas to a stake, with two live oaks as bearing trees; thence east with Taylor's survey three thousand and sixty-one varas, and intersects the west line of a league granted to Daniels, a stake in the prairie; thence north three thousand five hundred and eighty-six varas to a stake in the prairie-- this last being the line in controversy.

The evidence was that the Taylor and Daniels surveys begin at or near the forks of the Lavaca river, a natural object; they run by plainly marked and traceable lines, through the timber of the Lavaca river before they strike the prairie, nearly to the point where the Mary Lewis survey corners on their line.The marked line of the Taylor is traceable back to the river below.

The corner of the second call of the Lewis survey, on the line of the Taylor survey, was identified by the stumps of the live oaks being found at correct bearing distance.The east line--the line in controversy of the Lewis survey-- is the prolongation of the line, a direct north course, of the Taylor and the Daniels surveys.

The Brooks survey, on the north line of the Lewis, has a plainly marked line, according to the evidence.

The county map of Lavaca county shows the west line of the Lewis to be the prolongation of the Taylor and Daniels, and that the surveys of the appellants lie outside of the Horton league, which is laid down as running with the Lewis east line.

It was also proved by the county surveyor that his surveys for the plaintiffs, Ellis, were made under direction from the commissioner of the land office, as vacant land, and patents were issued on them; and that, in his opinion, no actual survey, on the ground, of the Horton survey was ever made, but that it was plotted by the surveyor, to run with the abutting surveys.

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE TABLE

The testimony of the witnesses Russell and Huddleston showed that the Daniels survey and Taylor surveys were the oldest in the county; that one line of each was the Lavaca river; that the river is correctly meandered; that the beginning corner of the Taylor survey is a natural object--the forks of the Lavaca river; that the beginning point of the Daniels is on North Lavaca, at a certain distance from the forks, which is correctly given with marked trees.That the corners of the Mary Lewis league call for certain corners of the Taylor survey, which are marked and known.That the Mary Lewis survey is older than the Horton--knows this from the fact that it is called for by the Horton field notes, and by surveys which are older than the Horton.This was also corroborated by Doss, who said that he thought the older survey of the Mary Lewis was lost.The northeast corner of the Mary Lewis could be easily established by extending the dividing line of the Daniels and Taylor survey north, to its points of intersection, with a line run east from the corner of the Brooks survey, which was a known and marked corner, and this corner corresponds with the marked corners of the Mary Lewis.

The relative location of the surveys will be apparent from the plot; the dotted prolongation of the south line of the Horton indicating its southwest corner as claimed by appellants.

Timmons & Brown, for appellant.

I.The court erred in refusing the request of defendants to charge the jury that, “If you believe, from the evidence, that the survey...