Johns v. Schutz
| Decision Date | 01 January 1877 |
| Parties | C. R. JOHNS ET AL v. SAMUEL SCHUTZ. |
| Court | Texas Supreme Court |
ERROR from El Paso county. Tried below before the Hon. S. B. Newcomb.
This is an action of trespass to try title, brought by Schutz, for two small lots of land, claimed under transfers from Juan Ponce de Leon, who held under a conveyance, made in 1827, by the municipal authorities of El Paso. Possession in Ponce, and his heirs and assigns, down to the plaintiff, was alleged, and that Johns & Co., in November, 1872, entered upon the land claimed, and caused a location of a valid land certificate to be made thereon; that survey had been made, and fieldnotes returned to the land office, under which the defendants claimed the land.
Subsequent to the institution of the suit, plaintiff, in the spring of 1873, designated the lots claimed as a pre-emption, and had caused survey under such designation, &c. Plaintiff, by amendment, set up claim under this pre-emption.
The defendants pleaded not guilty, and set up, by appropriate averments, their claim under the location and survey made in November, 1872; that the land was vacant; their location and survey under valid certificate owned by them, and return of same to the land office for patent; that their survey includes the lots claimed by plaintiff.
The record is not as carefully prepared as could be desired, and, aside from the statement of facts, it appears that the parties agreed upon the admissibility of--
1. Copy of the papers constituting the act of sale from the town of El Paso to Ponce de Leon, which document described the land conveyed as follows: “Commenced measuring where acequia, taken out by Don Jacobus Bernal, is cut by the point of a hill, * * * a monument of lime and stone, taking the course from west to east by the side of the north, had one cabaleria, to which was augmented 535 varas, for the disproportion of this triangle of land, on account that the center only being 225 varas in width, by which the first cabaleria was completed; and they continued measuring the other, following the course from west to east, side of the north, and at the foot of the hills, and leaving inside all that can be cultivated, and runs south to the river, and has 750 varas, considering the augmentation of 240 varas.”
2. Regularity of title deeds from Ponce to plaintiff.
3. Possession since 1831; payment by plaintiff of purchase-money in 1860; payment of taxes, &c.
4. That the defendants have title to the certificate, the location, survey, return of field-notes, in November, 1872, to land office for patent.
5. Plaintiff's pre-emption claim, in March, 1873, of the lots sued for.
The controversy, giving rise to the location by Johns & Co., is as to where the north line of the Ponce tract is situated.
Defendants insist that it runs east from the beginning in its course, the line of the second cabaleria being only a prolongation of that of the first.
Plaintiff insists that, at a point about 1,104 varas from the beginning, the line bears to the north; that by such change of direction is included the lots sued for.
The triangle, between the extension of the east line of the Ponce tract and the two lines claimed as above, is the location claimed by defendants, as shown by the pleading and evidence of the survey.
Much testimony was introduced, for the purpose of showing that, from the date of the conveyance, in 1827, to Ponce, he, and those claiming under him, had occupied this disputed territory, claiming it as their own, under the conveyance from the authorities of El Paso.
The court instructed the jury: ...
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State v. Balli, 8187; Motion No. 16405.
...The cases of State v. Gallardo, 106 Tex. 274, 166 S.W. 369; State v. Indio Cattle Co., Tex.Civ.App., 154 S.W.2d 308, 316; Johns v. Schutz, 47 Tex. 578; and Clark v. Hills, 67 Tex. 141, 2 S.W. 356, belong to the third type. We have not been cited to a case of a grant arising in the State of ......
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State v. Valmont Plantations
...that adjoining proprietors did not protest. Article 7, Colonization Law of Tamaulipas of 1826, 1 Gammel, Laws of Texas, 454-459; Johns v. Schutz, 47 Tex. 578; Cavazos v. Trevino, 35 Tex. 133. In fact, the survey recites that these are the true facts. The next step in the proceedings was the......
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Thomas Jordan, Inc. v. Skelly Oil Co.
...441. '11. I conclude that under the doctrine of the Supreme Court of Texas announced in Urquhart v. Burleson, 6 Tex. 502, and Johns v. Schutz, 47 Tex. 578, the call in the field notes and patent of the Clark Simmons for it to include the 'tract of land on which the town of Smithland is now ......
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Baker v. Heney
...may as well be the subject of calls as any other object. Bolton v. Lann, 16 Tex. 96-110; Ridgell v. Atherton, 107 S. W. 129; Johns v. Schutz, 47 Tex. 578; Buford v. Gray, 51 Tex. 331-335; Booth v. Stripplemann, 26 Tex. 436. And likewise a survey may be located by surrounding surveys. Longor......