Irvin v. Bevil

• Decision Date: 24 March 1891
• Citation: 16 S.W. 21
• Parties: IRVIN v. BEVIL <I>et al.</I>
• Court: Texas Supreme Court

16 S.W. 21

IRVIN v. BEVIL et al.

Supreme Court of Texas.

March 24, 1891.

Appeal from district court, Hardin county.

West & Chester, for appellant. P. A. Work, O'Brien & O'Brien, and S. B. Cooper, for appellees.

HENRY, J.

This suit was brought by appellees to recover the value of trees charged to have been cut and removed by the appellant from the A. A. Burrill league of land lying in Hardin county. Appellees owned an undivided three-fourths interest in said league, and the appellant owned the remaining one-fourth interest. Plaintiffs, in their petition, made the following allegations with regard to the description and situation of the said league of land: "The said league is described in the grant of date September 2, 1835, to said Burrill, as follows, to-wit: The tract surveyed for the colonist A. A. Burrill is situated at the north-western corner of Joseph Ellory's survey, on the western side of the Neches, for the first corner of the league of land of the party interested; thence west 10,000 varas were measured, and a stake was set for the second corner, which is also the north-west corner of this survey; thence 2,500 varas were measured, and the third corner was formed, which is also the south-west corner of this same survey; thence east 10,000 varas were measured, and a stake was set for the fourth and last corner of this survey; thence north 2,400 varas were measured to intersect the beginning corner. That the call for the northwest corner of the Ellory survey as the beginning corner of the Burrill league, and the call stating the length of the east line of Burrill to be 2,400 varas, are mistaken and erroneous, and that both of said calls as contained in said original grant are corrected by the description contained in the original English field-notes, which they allege are as follows, to-wit: Commenced at the north-west corner of George W. Brooks' survey, about six miles west of the Neches river, for the beginning corner of sitio of land for A. A. Burrill; thence west 10,000 varas, and set post at the north-west corner of this survey; thence south 2,500 varas, and set post at the fourth and south-west corner of a survey belonging to ____; thence north 2,500 varas along the line of said survey to the place of beginning." And plaintiffs further alleged that said survey was actually made adjoining and west of said Brooks survey, and has always heretofore, and still so appears on the official maps of Tyler and Hardin counties; and that the trees that were cut by the defendant were taken from within the boundaries last above described. Appellant complains that "the court erred in overruling appellant's general demurrer to plaintiffs' petition, because the plaintiffs alleged that the original grant to A. A. Burrill located the land at one place without any ambiguity in the description contained in said grant, and alleged said land to be at another and different place, and alleged that the timber was cut at such other place; and because the pretended description of the land, as they allege it to be located on the ground, is wholly unintelligible, and embraces no land whatever; and because to place the land where they claim it to be would entirely ignore all the calls contained in the grant, their description of such other place being wholly ambiguous and insufficient;" and also that "the court erred in admitting in evidence, over defendant's objections and exceptions, the original English field-notes of the A. A. Burrill league, because same is fatally variant from the description thereof contained in plaintiffs' petition;" and upon the same issue he complains that "the court erred in its charge to the jury, in this: It wholly failed to submit the issues of the locality of the land and of the cutting to the jury, and to instruct them that, unless the land was at the place on the ground which plaintiffs alleged to be located; and further, that unless the timber was cut from such place where they alleged the land to be, they must find for defendant, the appellant having asked a special charge presenting those issues." The title to Burrill was dated on the 2d day of September, 1835, and is in the usual form of grants of that date to colonists. The decree for title was dated August 18, 1835, and directed the "surveyor, citizen D. Brown," to "cause a tract of land designated by the party interested to be surveyed," and that he "examine the field-notes, which shall be translated in this office." The record contains a translation from the Spanish of the title which corresponds with plaintiffs' allegation above referred to. The field-notes are signed by David Brown, surveyor, and by James Carrierere, translator, and dated the 27th day of August, 1835. The field-notes are not repeated in the body of the title, signed by the commissioner, but are there referred to in the following language: "The boundaries whereof are described on the map and field-notes returned by the surveyor, David Brown, as appears in these proceedings." The plaintiffs, in connection with the land-office translation of the title, introduced what the commissioner of the general land-office certified to be "a true copy of the original English field-notes existing in the archives of this office," reading as follows: "Commencing at the north-west corner of George W. Brooks' survey, about six miles west of the Neches river, for the beginning corner of sitio of land for A. A....