Robbs v. Woolfolk

• Decision Date: 02 June 1920
• Docket Number: (No. 1610.)
• Citation: 224 S.W. 232
• Parties: ROBBS v. WOOLFOLK.
• Court: Texas Court of Appeals

224 S.W. 232

ROBBS v. WOOLFOLK.

(No. 1610.)

Court of Civil Appeals of Texas. Amarillo.

June 2, 1920.

Rehearing Denied June 30, 1920.

Appeal from District Court, Floyd County; R. C. Joiner, Judge.

Action in trespass to try title and on an agreement for survey by J. T. Robbs against R. N. Woolfolk, to recover certain land. Judgment for defendant, and plaintiff appeals. Affirmed.

J. N. Stalbird, of Lockney, A. P. McKinnon and Kenneth Bain, both of Floydada, and H. C. Randolph, of Plainview, for appellant.

Kinder & Russell and Williams & Martin, all of Plainview, for appellee.

BOYCE, J.

Prior to the institution of this suit J. T. Robbs, plaintiff in the court below, and R. N. Woolfolk, defendant therein, joined by various other parties, who all together owned more than 60 per cent. of the lands included in block C-9 Gulf, Colorado & Santa Fé Railway Company, in Floyd county, entered into a written agreement in part as follows:

"Know all men by these presents, that whereas, we who have signed our names hereto are the owners of tracts and parcels of surveys Nos. 1 to 20, inclusive, all in block C-9, and comprising the whole of block C-9, in Floyd county, Texas, said lands being more particularly shown by the sketch attached to this instrument and marked C-9 for identification; that whereas, there is doubt and uncertainty as to the true location of the boundary lines of said surveys and their proper location on the ground is in dispute, which results in confusion and conflicts and no one owning land in said surveys can permanently improve the same without the fear of future disturbance and litigation and that by reason thereof the present owners of said land have not been able and are not now able to locate definitely and certainly the boundary line of their respective surveys: And now, therefore, for the purpose of permanently locating and establishing the lines and corners of the land which we own in said block, that conflict, disputes and probably litigation may be avoided, and that we may know with definiteness and certainty where our lines are located, and to be enabled to permanently improve the same, do hereby enter into this survey agreement, each of us binding ourselves, our heirs, executors and administrators to the full performance of each and every condition of this agreement. Further, therefore, we do hereby agree and have agreed to employ W. J. Williams, a competent surveyor and engineer of Plainview, Texas, to resurvey and mark on the ground the said boundary lines of our said tracts of land in said block and we do hereby further agree that the lines so run and surveyed by him and the corners erected by him, shall be taken and accepted by us as the true and correct lines and corners of said land and the same shall forever be binding on us, each of us and our heirs and assigns respectively. Provided, however, that before the said W. J. Williams begins said survey he shall be appointed special surveyor by the Commissioner of the general land office in order that the lines so established by him may be recognized by the commissioner of the General Land Office. Each of us, the signers hereto, further agree to yield possession of our said lands in accordance with the lines as run by the said W. J. Williams, giving to each other possession of the land to which he is entitled by said survey, peaceably and without litigation."

Other parts of said agreement provided that the said W. J. Williams should mark each corner of said tract; how said surveyor should be paid by the respective owners of the land employing him; that in the event any of the signers to the agreement should lose any land by reason of the survey then he should be compensated for such loss by each signer paying a proportionate part thereof; that the agreement should not be effective until signed by the owners of 60 per cent. of the land, included within the boundaries of said block C-9, and that the survey should be made within 60 days from the date of appointment of said surveyor by the commissioner of the general land office.

The agreement was signed by the required number of owners of land in said block; the said Williams was appointed and duly qualified as state surveyor, and thereafter within due time surveyed the block on the theory of location hereinafter referred to, establishing corners and furnishing field notes of each survey. These field notes were approved by the commissioner of the general land office, and duly filed in said office.

Section 4 of said block, owned by defendant, was north of section 7, the north one-half of which was owned by plaintiff, and the defendant refused to recognize the line between said sections as established by the said Williams. The plaintiff brought this suit in trespass to try title, and on said contract to recover said north one-half of said section 7, as defined by the boundaries established by the said Williams. The defendant answered that he was not bound by the Williams survey, because of the following facts, specially pleaded:

First. "That the said Williams survey, pleaded by plaintiff, was not authorized by or made in conformity with the survey agreement pleaded by plaintiff, in that the said W. J. Williams did not `resurvey and mark on the ground' the boundary line of defendant's land; that said Williams in making said survey did not follow the original field notes of the defendant's land, but located same from other and different notes in a manner not authorized by said agreement." Second. "That the said Williams survey, alleged and set forth by the plaintiff as an agreed boundary, is void, in that the said survey attempts to apportion vacant land belonging to the state of Texas, among the various surveys in block C-9. Floyd county, Tex., and give said vacant land to the respective owners of the surveys in block C-9, the parties to said contract and the commissioner of the general land office of the state of Texas, not having the authority under the laws and Constitution of the state of Texas to so dispose of the vacant domain belonging to said state."

It appears from the record that block C-9 is a rectangle, or 20 sections of land, 5 sections east and west and 4 sections north and south. Section 1 is the northeast corner section of the block, and the sections are numbered consecutively from east to west and west to east, No. 20 being the southeast section of the block. The original survey, purported to have been made by J. Summerfield in 1878. The original field notes of said section 1, called to begin for its northeast corner at the southeast corner of section 20, block B-4, and the northwest corner of section 2, block D-1. The field notes of each of the five north sections of the block call to the corner with stated sections of block B-4. Each of the east sections of the block call to corner with certain sections of block D-1. The field notes of each of the 20 sections call for a mound at each corner, no other call for any natural or artificial object being made. If these mounds were ever put in, there is no evidence that any of them were ever found, unless it be that at the southeast corner of section 20. It appears from the maps in evidence that the southeast corner of section 20, block C-9, the southwest and northeast corners of sections 24 and 25, block D-1 and the northeast corner of section 81, block D-2, are at a common point. It appears that there was, at the time of the said Williams survey, a large earth mound, which was accepted as being the southeast corner of said section 20. Whether it was put in as a corner for said section or for some one of the other sections cornering at this place does not appear, though the surveyor Williams stated in his report that the mound had the same appearance in size and age as a mounment several miles to the east at the corner of another section in block D-1. Block B-4 is composed of 34 sections, purporting to have been surveyed by W. S. Jones, surveyor, in 1875. The field notes of the surveys of this block call to tie to block B-1, and call for stakes at the corner of each section. Block B-1 is a block of 100 sections, purporting to have been surveyed by the said W. S. Jones in 1875. The field notes of the sections of said block, with the exception of section 1, which calls for a monument at its beginning corner, also call for stakes for their corners. Block D-1, which, as we have seen, lies to the east of block C-9, was surveyed by J. Summerfield in 1877. It lies south of block B-4, and also calls to corner with the sections of said block. At the time of the Williams survey no original or recognized corner of any of the sections in either block B-1 or block B-4, could be identified on the ground except the original corner of section 1 of said block B-1.

Said Williams proceeded in the following manner in making the survey of the sections in block C-9: He accepted the earth monument already referred to as being the southeast corner of section 20, and from this point established the east and south lines of the block. The course used in locating these lines was determined by the course between the said mounds at the southeast corner of section 20 and that situated several miles to the east at the corner of another section of said block D-1. He ran course and distance from the recognized corner of section 1, block B-1, some 15 or 20 miles distant from block C-9, to establish the corners of block B-4, called for by...