Oliver v. Mahoney

• Decision Date: 09 May 1884
• Docket Number: Case No. 4676.
• Citation: 61 Tex. 610
• Parties: JAMES OLIVER v. G. W. MAHONEY.
• Court: Texas Supreme Court

61 Tex. 610

JAMES OLIVER

v.G. W. MAHONEY.

Case No. 4676.

Supreme Court of Texas.

May 9, 1884.

APPEAL from McLennan.Tried below before the Hon. B. W. Rimes.

Suit by James Oliver, involving a question of boundary.The Burns survey was made in 1846; its field notes are not in the record; afterwards the Nancy Anderson was made west of the Burns, and the A. S. Anderson still west of that.The controversy was over a strip of land which, under the decision in this cause, existed between the Burns and the Nancy Anderson surveys, for which Oliver, who claimed the Nancy Anderson survey, sued.The east line of the Burns survey was in the timber and well marked; its west line was an open, or prairie line, having no established corners on the ground.The surveyor who made the Nancy Anderson survey testified that he began on the northeast corner of the A. S. Anderson, thence run north 60° E. 661 varas, where he established the northeast corner of the Nancy Andersonat the “ head of a prairie branch.” This branch was found at the proper distance, but no marked corner there; to stop there, gives the Nancy Anderson its proper complement of land.The surveyor thought he had reached at that point the northwest corner of the Burns, though he did not call for it.The call was for a corner, with no other call to designate it; and then run “S. 30° E. with the west line of the A. Burns survey.”It was afterwards ascertained that the west line of the Burns survey was three hundred and seven varas east of this line.In other words, if the surveyor had protracted the north line of the Nancy Anderson three hundred and seven varas beyond the head of the prairie branch where he established his corner, but without calling for the branch, he would have reached the northwest corner of the Burns.The two Anderson surveys were all prairie.The northwest corner of the A. S. Anderson, on which survey the Nancy Anderson depends, was well established by a natural object.Judgment for the defendant.

Clark & Dyer, for appellant, cited: Bolton v. Lann, 16 Tex., 110;Robertson v. Mosson, 26 Tex., 251;Anderson v. Stamps, 19 Tex., 465;Urquhart v. Burleson, 6 Tex., 511;Hubert v. Bartlett, 9 Tex., 104;Johns v. Schutz, 47 Tex., 582;Booth v. Strippleman, 26 Tex., 441;Stafford v. King, 30 Tex., 269;Jones v. Borgett, 46 Tex., 289;Muller v. Landa, 31 Tex., 271;Marshall v. Crawford, Texas Law Journal, vol. 5, No. 20, p. 312.E. H. Graham, for appellee, contended that the location of the corner, being identified by the surveyor by the prairie branch, though not called for, where the distance was exhausted, that corner must be established there; citing Gerald v. Freeman, Tex. Law Jour., vol. 2, No. 47, p. 744;McCown v. Hill, 26 Tex., 359;Castleman v. Pouton, 51 Tex., 84;Bolton v. Lann, 16 Tex., 113.

DELANY, J. COM. APP.

Appellants insist that the east line of the Anderson survey should be carried eastwardly to the west line of the Burns, because the Burns is the older survey, and the field notes of the Anderson call for its west line.

They refer us to a number of cases which recognize the rule that a call for a marked line, as for the line of an older survey, will ordinarily control a call for course and distance.But it seems to us that appellants are resorting to that rule in a case to which it does not properly apply.The rule finds its proper application in cases where the line which is sought has never been established on...