Schnackenberg v. State
| Decision Date | 09 March 1921 |
| Docket Number | (No. 6523) |
| Citation | 229 S.W. 934 |
| Parties | SCHNACKENBERG et al. v. STATE et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Travis County; George Calhoun, Judge.
Suit by the State of Texas and others against J. L. Schnackenberg and others. From judgment for plaintiffs, defendants appeal. Reversed and remanded.
Nicholson & Felder, of Wichita Falls, and White, Cartledge & Wilcox, of Austin, for appellants.
C. M. Cureton, Atty. Gen., and E. F. Smith, W. W. Meachum, Jr., and Tom L. Beauchamp, Asst. Attys. Gen., and W. F. Schenck, of Lubback, for appellees.
This suit was filed in Travis county on the 2d day of July, 1919, by the state of Texas, joined by John T. Smith, A. S. Newburg, and George W. Butler, against appellants to recover title to the following described tract of land, to wit:
The alleged interest of John T. Smith was by virtue of a corrected permit No. 3,027 to prospect for petroleum and natural gas that may be found within and beneath the surface of the above-described land by virtue of chapter 83 of an act of the Legislature approved March 16, 1917. On or about the 24th day of April, 1919, John T. Smith assigned said corrected permit with all his rights to A. S. Newburg and George W. Butler, the present legal and equitable owners thereof, who have applied for a second permit. Said parties join the state in said suit.
E. L. Lancaster, T. H. Harbin, and C. J. Barnard filed disclaimers. Responsive pleadings were filed by all other defendants.
The case was tried with a jury upon a general charge, and the jury returned a verdict as follows:
"We, the jury in the case, the State of Texas v. J. L. Schnackenberg et al., find from the evidence in this case that the land described in plaintiff's petition is not embraced within the boundaries of the patent issued by the state of Texas to F. W. Grassmeyer, assignee of F. W. Huseman, and find a verdict for the plaintiff for the land in controversy."
From which judgment the following named defendants: J. L. Schnackenberg, Emilie Schnackenberg, G. P. Holtzen, Anna Holtzen, C. P. Sheldon, and L. H. Lawler, trustees of the Sky-Line Oil Co., and U. D. Goodson, C. D. Lacy, Guy T. Warren, Mrs. Bettie Rowles. Mrs. M. J. Denning, Mrs. Allie Rowland, Robert Rowland, Mrs. Dollie M. Ralls, John R. Ralls, J. M. Martin, F. W. Caldwell, Mrs. Frank Carmichael, Earl Carmichael, J. W. Caldwell, C. F. Richards, Lonnie Richards, Lilia Richards, J. L. White, Mrs. Stella Trice, B. W. Trice, Mrs. Minnie May Gilvin, John B. Gilvin, and Mrs. Meota Oden—filed their appeal bond, and now bring this cause to this court for revision.
This is conceded to be, as it is, a boundary suit. Without quoting the somewhat lengthy and numerous assignments of error and propositions thereunder, we will here state what we conceive to be the vital questions raised, both of law and fact, that must determine the case. The theory of the state is that the wedge-shaped piece of land described, before its attempted appropriation, was a piece of vacant and unappropriated land lying north of the F. W. Huseman and between the A. A. Durfee survey, containing about 52 acres. This proposition is strenuously denied by appellants, who assert the land was not public, unappropriated domain, and was not subject to such location.
It now becomes important to locate and identify the lines of the various surveys in accordance with the well-understood principles of law that control such locations.
The undisputed evidence shows the location of Red river as it lies north of all the surveys necessary to consider and is called for in a number of the surveys as the boundary line.
Field notes of a 320-acre survey in the name of T. E. & L. Co. No. 818 call for the S. bank of Red river, beginning at the upper N. W. corner of No. 812 (Elizabeth Stanley), stake in river bottom, for bearing trees named; thence up the river. Another call for west line of No. 812. This survey was made by R. F. Luckett, surveyor, May 8, 1861. Now the Elizabeth Stanley survey No. 812 lies directly east of the above survey, calling for the river as its northern boundary, has a common corner and common boundary line, and was made at the same time, by the same surveyor, and its location corner is identified on the river. The same surveyor at the same time located directly west of and adjacent to the survey No. 818 a survey in the name of William Droddy, lying south of the river, which was its northern boundary, tied to and calling for said survey No. 812 for beginning. The same surveyor at the same time located the Lewis Powell survey No. 820 on the south bank of the river. Beginning at the N. W. corner of survey No. 819 (William Droddy), stake, elm, 18 inches 38¼° W. 143 varas, and elm and hackberry bears S. 39½° W. 163 varas; thence up the river, etc., with calls for bearing trees; thence south 4,360 varas a stake prairie; thence east 1,165, stake in west line of survey No. 819, north 4,947 to beginning.
These surveys, with plats and field notes, were returned to and filed in the General Land Office in proper time by R. F. Luckett, the surveyor who made them all in 1861. They all show Red river platted on the map, and called for as the common northern boundary line. They are all adjacent, and call for each other. The boundary lines are practically in common, and extend from the river in practically straight lines, and are so represented by all maps on file and use in the General Land Office as common and adjacent surveys.
For some reason the field notes of the William Droddy survey have been lost from the Land Office, and but for its position on the maps and calls for it by its two companion surveys on either side the position formerly occupied by it might not be identified. At any rate its place is now occupied, in the northern part at least, by the F. W. Huseman survey No. 819, which is located on the ground in part, but wholly on the northern part just south of Red river beginning at the N. W. corner of survey No. 818, Texas Land & Emigration Company; thence south 4,845 varas, stake in prairie; thence west 1,900 varas to a stake in E. B. line of Lewis Powell's survey; thence north with said Powell 3,925 a stake in Red river; thence down said river with its meanders N. 64° E. 211 varas to the beginning. It was dated February 24, 1874.
On the 24th and 25th days of February, 1886, the Durfee survey was located, and thereafter patented, to wit:
It is worthy of note when the Huseman survey was put in on the place, in part formerly occupied by the abandoned Droddy survey, the same number was also given it as represented the Droddy location, to wit, 819.
The testimony is overwhelming that Luckett made this system of surveys in 1861, and returned proper field notes to the Land Office, calling for the Red river as the northern boundary, together with a map representing Red river thereon as lying wholly north of said surveys, and evidently intended thereby the river should be their common northern boundary line, and to appropriate all the land lying south of that river embraced within the boundaries of the several surveys, not intending that there should be any vacancy there. No other inference may be drawn from this written record testimony which the law required to be placed in the General Land Office to segregate it from the mass of public domain.
For some reason, which we are not here called upon to pass on, it appears in 1886 the surveyor of Wichita county located, surveyed, platted, and returned to the General Land Office surveys along the south bank of Red river, north of the original Luckett surveys under discussion, in the name of B. F. Blount, A. A. Durfee, and others.
The field notes and plats of the A. A. Durfee purport it to be located between the south bank of said river and the F. W. Huseman. As stated, the only theory upon which such location can be made must be upon the supposition that it was at the time unappropriated public domain. It is not necessary to discuss their validity here, except in so far as it is applicable to do so with respect to appellees' claim of a vacancy. It is evident at that time, many years after the location of the Huseman survey, it was supposed the Huseman did not go to the river, and the Durfee undertook to appropriate that land, as it called to begin, situated on the waters...
To continue reading
Request your trial
-
Strayhorn v. Jones
...Oil & Gas Co., 151 Tex. 418, 252 S.W.2d 149; Carmichall v. Stanolind Oil & Gas Co., Tex.Civ.App., 256 S.W.2d 129; Schnackenberg v. State, Tex.Civ.App.1921, 229 S.W. 934, no writ history; Duval County Ranch Co. v. Rogers, Tex.Civ.App.1941, 150 S.W.2d 880(2), ref.; Brooks v. Slaughter, Tex.Ci......
-
Smith v. Turner
...W. 519; Mackey v. Robison, 116 Tex. 373, 291 S. W. 1102; Fielder v. Houston Oil Co. (Tex. Com. App.) 208 S. W. 158; Schnackenberg v. State (Tex. Civ. App.) 229 S. W. 934. Since the patent covers the land in controversy, no one but the state can question its validity or has any right arising......
-
Strayhorn v. Jones
...Gas Co., Tex.Civ.App., 256 S.W.2d 129, writ refused; Wheeler v. Stanolind Oil & Gas Co., 151 Tex. 418, 252 S.W.2d 149; Schnackenberg v. State, Tex.Civ.App., 229 S.W. 934; State v. Sullivan, 127 Tex. 525, 92 S.W.2d 228; Tippett v. Woolley, Tex.Civ.App., 230 S.W.2d 283; Duval County Ranch Co.......
-
State of Oklahoma v. State of Texas United States
...but all name the river bank as a boundary. In those of 1856, and possibly others, it was the controlling call. See Schnackenberg v. State (Tex. Civ. App.) 229 S. W. 934; Cordell Petroleum Co. v. Michna (C. C. A.) 276 Fed. 483. The jurisdiction and title of Texas stood unchallenged until sho......