Harwell v. Sloane

• Decision Date: 03 May 1950
• Docket Number: No. 9866,9866
• Citation: 230 S.W.2d 558
• Parties: HARWELL v. SLOANE et al.
• Court: Texas Court of Appeals

Page 558

230 S.W.2d 558

HARWELL v. SLOANE et al.

No. 9866.

Court of Civil Appeals of Texas, Austin.

May 3, 1950.

Rehearing Denied May 24, 1950.

Wilson & Wilson, San Angelo, Ralph W. Wilson, San Angelo, for appellant.

Kerr, Gayer & Sutton, San Angelo, John F. Sutton, Jr., San Antonio, for appellees.

ARCHER, Chief Justice.

This suit was filed by appellant as a suit in trespass to try title to recover a tract of land which he claimed as a part of Caudrilla Irrigation Company Survey No. 21 1/2 in Coke County, Texas, against Sam Sloane and his unknown heirs. Citation was by publication and judgment was rendered in favor of appellant. Afterwards, appellees, who claim as heirs of Sam Sloane, filed a petition in the nature of a bill of review and asserted title to the land in question as being validly included in M. J. Dunn Servey No. 1, a junior survey to Survey 21 1/2. This petition was answered by appellant and the case was tried before the court without a jury. Judgment was renderd for appellees, from which this appeal is brought.

The appeal is based on five points, the first four are to the effect that the M. J. Dunn Survey is junior to and in fact a part of Survey No. 21 1/2 and lies within the field note calls of Caudrilla Irrigation Company Survey No. 21 1/2, and that the trial court erred as a matter of law in not holding that the field note calls for adjoinder with the N. E. corner of H. E. & W. T. R. R. Co. Survey 1 were valid calls and prevailed over the variant call for distance; and that the call for distance was not superior to the call of the patent of Survey No. 21 1/2 for adjoinder with the corner of the senior survey; and, third, that Survey No. 21 1/2 was a valid survey when it was sold, and that the subsequent act of the State Land Commissioner in recognizing the Dunn Survey in conflict with Survey 21 1/2 could give no right to the junior holder; and, fourth, that 21 1/2 was a survey senior to the Dunn and rightly occupied the land awarded to appellees; and, fifth, that the overwhelming weight of the evidence supported a limitation title and that judgment should have been rendered for appellant on that issue.

The first four points are presented, briefed and argued together and will be so considered by us.

The decision of this case hinges upon the proper construction of Caudrilla Irrigation Company Survey No. 21 1/2 in Coke County, Texas.

The original field notes of Survey 21 1/2, made by C. W. Holt May 25, 1880, had as its beginning a stone mound at S. E. corner of Survey No. 20 1/2; thence East 804 vrs. to stake at N. E. corner of Survey No. 1, H. E. & W. T. R. R. Co; thence north 1267 vrs. to stone mound; thence west and south to beginning place. These field notes were cancelled by corrected ones made by H. B. Tarver, November 1, 1883; the only change was that the distances north and south were changed to 1367 vrs. Survey No. 21 1/2 was patented in 1883 upon the notes filed by Tarver.

On June 7, 1901, W. T. Savage, County Surveyor of Coke County, made field notes for the M. J. Dunn Survey No. 1 and disregarded the calls in 21 1/2 for the N. E. corner of Survey No. 1 H. E. & W. T. R. R. Co., thereby limited 21 1/2 to its field note distance east and west. The Dunn Survey was patented on Savage's field notes.

The senior of all surveys material to a determination of the question before this court is H. B. Martin Survey No. 13, which was an actual survey on the ground.

G. C. & S. F. R. R. Co. Survey No. 2 and H. E. & W. T. R. R. Co. Survey No. 1 were surveyed on the ground with their S. W. and S. E. corners marked on the ground. These original corners were identified by Surveyor Conklin.

The original field notes of Caudrilla 21 1/2 were made by H. B. Tarver on November 1, 1883, and were as follows: 'Beginning at stone and md at the S. E. corner of Sur. 20 1/2 made for B. B. B. & C. Ry. Co.; thence East 804 vrs. to a stake at N. E. cor. of Survey No. 1 made H. E. & W. T. R. R. Co.; thence North 1376 vrs. to stake and md.; thence West 804 vrs. to a stake & md. in E. line of B. B. B. & C. R. R. Co. for 20 1/2; thence South 1376 vrs. to the place of beginning.'

Tarver refused to certify that he made this survey, but in effect certified that it was an 'office survey', as his certificate left blank anything about his having made the survey and instead he certified that he examined the field notes and found them to be correct.

The field notes of the Dunn Survey No. 1, which were made by W. T. Savage on June 10, 1901, call for 47.4 acres of land, as follows: 'Beginning at a sta. the S. E. cor. of Cuadrilla Irrig. Co. sur. No. 21 1/2; thence N. 1376 vrs. st. md. N. E. cor. of said sur. and the N. W. cor. of this sur.; thence E. 195 vrs. sta.; thence S. 1076 vrs. pass N.W. cor. of sur. No. 2, G. C. & S. F. R. R. Co. at 1376 vrs. sta. in the W. B. line of said sur. the N. E. cor. of H. E. & W. T. R. R. Co. sur. No. 1, same being S. E. cor. of this sur.; thence W. with said survey's W. B. line 195 vrs. to the place of beginning.'

Unless the call for 804 varas east carries the Caudrilla 21 1/2 as far east as the west line of the W. L. Hunter 22 1/2 and to the N. E. corner of H. E. & W. T. R. R. Co. No. 1, there is room for the Dunn Survey No. 1.

The Hunter 22 1/2 was surveyed in 1880, subsequent to the survey of the G. C. & S. F. R. R. Co. No. 2 to the south of the Hunter but prior to the survey of Caudrilla 21 1/2. The Tarver survey of 1883 of the Caudrilla was an office survey, and as such its construction is such as will disregard as few calls as possible and disregard whichever call that will result in harmonizing the field notes. Both of the surveyors who testified in this case agree that Tarver was mistaken in thinking he could get from the S. E. corner of B. B. B. & C. R. R. Co. 20 1/2 to the N. E. corner of H. E. & T. R. R. Co. No. 1 in 804 vrs.; Conklin testifying that the distance was 1,004.3 vrs. and Simpson that it was 961.6 vrs.

The mistake of Tarver that it was only 804 vrs. from the S. E. corner of 20 1/2 to the N. E. corner of Survey No. 1, H. E. & W. T. R. R. Co., may have been occasioned by the fact that the field notes of the older surveys then on file would lead him to believe that it was only 804 vrs. between the two corners, since the call distances of the south line of Survey No. 1, G. C. & S. F. R. R. Co., and Surveys Nos. 1 and 2, H. E. & W. T. R. R. Co., were given as 1900 varas each. There is an excess in each of these lines aggregating 140 varas. The excess in these three surveys was apportioned among them based on corners that could be identified. These were original corners on surveys older than the northern tier running from the Waco Manufacturing Co. No. 1 and No. 2, and the B. B. B. & C. R. R. Co. 20 1/2, which were office surveys.

7 Tex.Jur., 162, Boundaries, Sec. 34: 'The above rules as to the comparative weight to be given the various classes of calls are not hard and fast, but are rules of evidence which are relative in their application, giving aid in determining which call or calls were made by mistake, and in showing the true location of a disputed line. In other words, there is no positive law fixing the effect of any call or giving one more weight or importance than another, and when calls lead to conflicting results, preference should be given to those which most probably indicate the intention of the grantor, as expressed in the grant, read in the light of surrounding circumstances, even though they are of inferior rank.'

Boon v. Hunter, 62 Tex. 582:

'When the line or corner of another survey is called for in field notes made without an actual survey, such line or corner, if evidently called for by mistake, may be disregarded, when to observe them would be inconsistent with all the other calls which upon the ground are found, inconsistent with the course and distance called for, and with the manifest intention of the parties to be arrived at by a...