Garcia v. State

• Decision Date: 20 May 1925
• Docket Number: (No. 6871.)
• Citation: 274 S.W. 319
• Parties: GARCIA et al. v. STATE et al.
• Court: Texas Court of Appeals

274 S.W. 319

GARCIA et al. v. STATE et al.

(No. 6871.)

Court of Civil Appeals of Texas. Austin.

May 20, 1925.

Appeal from District Court, Travis County; George Calhoun, Judge.

Action by the State against Eusebio Garcia and others. Judgment for the State, and defendants Eusebio Garcia and others appeal. Affirmed.

Pope, Pope & Pope and Mann, Neel & Mann, all of Laredo, A. S. Hardwicke, of Dallas, and Davis, Jester & Tarver, of Corsicana, for appellants.

Dan Moody, Atty. Gen., R. J. Randolph, Asst. Atty. Gen., and G. B. Smedley, of Wichita Falls, for appellees the State and Thaxton & Anderson.

BAUGH, J.

This suit was brought in the district court of Travis county, Tex., by the state of Texas, against the appellants to recover as a part of the public domain about 608 acres of land in Webb county, Tex., claimed by appellants as a part of the Ysidero Gutierres survey No. 592, commonly known in that county as the Los Ojuelos grant of two leagues of land. The case was tried to the court without a jury, and judgment rendered awarding the state the land sued for. From that judgment, this appeal is prosecuted.

The record is voluminous, and the briefs are long. Appellants bring more than 80 assignments of error and 31 propositions of law for review in their brief. There are, however, only two major issues in the case. First, what were the true boundaries of the Los Ojuelos grant; and, second, if a vacancy occurred, whether Eusebio Garcia, who had claimed to own such vacant land as a part of the Los Ojuelos grant, had a prior right as against the defendants Anderson and Thaxton to file on it and have it awarded to him. We shall not undertake to discuss all the questions raised, but only such as we deem material to a proper disposition of the case.

Some time in 1830, the Mexican government caused to be surveyed for Ysidero Gutierres a grant of two "sitios" or leagues of land in what is now Webb county, Tex. This survey was a rectangle 5,000 varas wide by 10,000 varas long running north and south and including within its boundaries an old well or spring called "Los Ojuelos," which was one of the old established natural objects of that territory. The Mexican surveyor, Canales, as appears to have been his custom, drew a sketch of the survey, designated the corners by name, and called for the distances between them. Gutierres, due to Indian raids, seems to have left the lands and returned to Mexico. It is not shown just when he did so. However, his heirs returned and located the grant after Texas became a state, and in 1856 caused it to be surveyed by one R. C. Trimble, district surveyor for Webb county, who filed his field notes in the general land office. Thereafter in 1861 the heirs of Gutierres filed a suit in the district court of Webb county against the state of Texas, seeking to have title to the old grant confirmed in them. This suit was filed in accordance with the act of February 11, 1860 (Laws 1860, c. 78), authorizing the confirmation of claims to lands between the Nueces and the Rio Grande rivers. Judgment was not rendered in this case however until July, 1871. It confirmed title to the two leagues in the heirs of Gutierres. Thereafter on June 10, 1873, the land was patented to the heirs of Ysidero Gutierres, under the field notes made by the surveyor Trimble in 1856, reciting that the patent was issued by virtue of the decree of the district court, dated July 14, 1871, a copy of which had also been filed in the general land office.

Neither the description of the corners contained in the Canales memoranda, nor that contained in field notes made by Trimble on which the patent was issued, is sufficiently definite to locate the corners on the ground. Nor can it be determined whether Trimble, in making his survey in 1856, followed the footsteps of Canales when he made the survey of 1830. Trimble did call, in his survey, for the northwest and southwest corners as the "original" corners of the grant, and it would appear that these corners corresponded in both surveys. But no such identity is shown as to the northeast and southeast corners. No useful purpose would be served by setting out these calls for corners in the different surveys and seeking to analyze their differences, for the reason that, as found by the trial court —

"the location of the Los Ojuelos survey, as claimed by the defendants Garcia et al. does not correspond with, and is not correct according to, the said survey and field notes made by R. C. Trimble, or the field notes purporting to have been made by Canales."

After setting out his findings of fact at length, the trial court reached the following conclusions:

"1. That the boundaries of the Los Ojuelos survey referred to in the judgment of confirmation by the district court of Webb county, and in the patent described, are to be fixed and determined in accordance with the survey made by R. C. Trimble, and the field notes of said survey made by said Trimble and filed in the land office and the field notes contained in the patent.

"2. That the Los Ojuelos survey as surveyed by Trimble, and as patented, would be most certainly and correctly located by beginning at the old Los Ojuelos well or spring running thence N. 88 degrees and 15' west 1,600 varas to a point in an old road; thence N. 4,900 varas to a point on the slope of a rocky hill for the N. W. corner; thence E. 5,000 varas to a point 145 varas W., and about 195 varas S. of a round dry pond for the N. E. corner; then returning to the said point in the old road and running thence S. 5,590 varas to the small round stone hill, or 5,662 varas to the high round rocky hill for the S. W. corner; and by constructing the S. and E. lines by course and distance from the above-described N. E. and S. W. corners. However, because the Los Ojuelos when its boundaries are so fixed conflicts on its north end for a distance of about 600 varas with several junior surveys and conflicts on its west side for a distance of about 1,500 varas with a number of junior surveys, and because the north line of the Los Ojuelos survey, as claimed by the defendants, Garcia et al. much more nearly corresponds to the true location of the north line of the survey than does the south line of the survey as claimed by defendants, Garcia et al., correspond to the true south line, I conclude that for the purpose of arriving at an equitable judgment in this case, and in order to avoid the creation of conflicts with junior surveys, the boundaries of the Los Ojuelos survey should be fixed by beginning at a corner of the Julia A. Flippen survey No. 771 at what is claimed by defendants, Garcia et al., as the N. W. corner of the Los Ojuelos survey, running thence S. with the E. lines of the junior surveys 10,000 varas; thence E. 5,000 varas, thence N. and parallel with the W. line of the Los Ojuelos 10,000 varas; thence W. with the S. line of the junior surveys 5,000 varas to the place of beginning."

As thus located by the court, the west line of the survey was in fact only about 125 varas west of the old spring or well, instead of 1,600 varas, as indicated.

Appellants contend, however, that their grant, as originally surveyed by Canales, was by him marked at its northeast, southeast, and southwest corners by large stone monuments set in the ground; that Gutierres was placed in juridical possession of the lands so marked; that such corners were well and notoriously known in 1871, when the land was decreed to his heirs; and that such boundaries have continuously been recognized for more than 50 years. This contention is based upon the requirements of the laws of Tamaulipas at that time that just such corners be erected as landmarks (see State v. Palacios [Tex. Civ. App.] 150 S. W. 237); the formal method required by Spanish law of placing a grantee of public lands in juridical possession on the grounds with appropriate ceremonies (see Malarin v. United States, 68 U. S. [1 Wall.] 282, 17 L. Ed. 595; United States v. Pico, 72 U. S. [5 Wall.] 536, 18 L. Ed. 695); and the testimony of some Mexican witnesses that these monuments were on the ground at the corners claimed by Garcia in 1880 or even a few years prior thereto. The decree of the district court of Webb county, entered in 1871, does recite "that the plaintiffs or their ancestor or original grantee had been placed in juridical possession, that the locality and boundary of said land are well defined and well and notoriously known," etc. Junior surveys made in 1881 also call for these stone monuments as marking some of the corners of the Gutierres or Los Ojuelos grant. In brief, there was evidence from which the trial court could have found the boundaries of the Los Ojuelos as contended for by appellants, but there was also evidence to the contrary, and there being a conflict, we will not disturb the trial court's findings.

When the heirs of Gutierres returned to the land from Mexico in 1855 or 1856, had it resurveyed by the district surveyor,...