Schley v. Blum

• Decision Date: 29 May 1893
• Citation: 22 S.W. 667
• Parties: SCHLEY et al. v. BLUM et al.
• Court: Texas Supreme Court

Page 667

22 S.W. 667

SCHLEY et al. v.BLUM et al.

Supreme Court of Texas.

May 29, 1893.

Error to court of civil appeals of first supreme judicial district.

Application by Leon & H. Blum for a writ of error to review a judgment of the civil court of appeals reversing a judgment for applicants, (22 S. W. Rep. 264,) and in favor of H. J. Schley and others. Denied.

W. M. Walton, John W. Maddox, and West & Cochran, for applicants.

STAYTON, C. J.

Application and accompanying papers show that Leon & H. Blum brought this action to compel, through mandamus, the county surveyor of Wharton county to survey certain lands on which they had located land certificates; that this the surveyor refused to do, on the ground that the land had been patented before the locations were made.The adverse claimant of the land was made party, and on trial judgment was rendered for the plaintiffs, but on appeal the judgment was reversed, and rendered for the defendants.It is shown that the claimant of the land, made a defendant, is the owner of two blocks of surveys containing many sections, and on the part of the defendants it was contended that these blocks were contiguous, so far as the lands in controversy are concerned, while on the part of plaintiffs it is claimed that this is not true, and that between the blocks there is land not appropriated by either block; and it is that strip of land, embracing about 2,975 acres, upon which plaintiffs made their location claim, and now seek to have surveyed.The court of civil appeals held that the two blocks of surveys, as originally made, were contiguous, and then fixed by actual location and measurement, and that this relation was not disturbed by a subsequent correction of the field notes, which, however, made two surveys in one of the blocks to call for a survey made for the San Antonio & Mexican Gulf Railroad, but that this was done by estimation, and not by an actual survey to determine the real relation between surveys in one of the blocks and the surveys for the San Antonio & Mexican Gulf Railroad.One of the blocks is known as the "East Texas Railroad Surveys," and the other as the "Morris and Cummins Surveys;" and, after a general finding that they were contiguous, the opinion of the court of civil appeals states that "the surveyor who made the survey, and returned the field notes to the general land office, testified upon the stand — and his testimony upon this matter is uncontradicted — that he did in fact locate, by actual measurement upon the ground, in 1875, each and all of the surveys in the Morris and Cummins block, and that all...