Stafford v. King

• Decision Date: 30 April 1867
• Citation: 30 Tex. 257
• Parties: CAROLINE C. STAFFORD v. ADAM C. KING.
• Court: Texas Supreme Court

30 Tex. 257

CAROLINE C. STAFFORD

v.ADAM C. KING.

Supreme Court of Texas.

April, 1867.

It is the duty of a surveyor of the public land to run round the land located, and to see that such objects are designated as will clearly identify the locality, and to call for these objects, natural and artificial, in his field-notes of the survey; and when the field-notes assert that the survey has been made, the calls will be presumed to be true until the contrary is proved; and as to lost calls, the presumption will be indulged that they have been destroyed or defaced; and even if it be established that the land was not, in fact, surveyed, the patent will not be held void, if the boundaries can be identified by any reasonable evidence.

If there be a defined beginning-point, the boundaries may be established by course and distance alone. 16 Tex. 440.

Natural objects are mountains, lakes, rivers, creeks, rocks, and the like; artificial objects are marked trees, stakes, mounds, etc., constructed by others or the surveyor, and called for in the field-notes, and they should be inserted in the patent. Pas. Dig. art. 5294, note 1144; 9 Tex. 103;21 Tex. 21.

In all future controversies these calls are to be searched for, and, if found, there can be little room for controversy about the boundaries; if not found, or found out of their places, then the rules of law must control.

The general rules as to controlling calls are: 1, natural objects; 2, artificial objects; 3, course and distance. Pas. Dig. art. 5294, note 1144.

The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case. And when they lead to contradictory results or confusion, that rule must be adopted which is most consistent with the intention apparent upon the face of the patent, read in the light of the surrounding circumstances.

The most material and certain calls shall control those which are less material and less certain. A call for a natural object, as a river, a known stream, a spring, or even a marked tree, shall control course and distance. Pas. Dig. art. 5294, note 1144; 6 Tex. 502;9 Tex. 103;16 Tex. 110;22 Tex. 594.

Course and distance are the most unreliable calls; distance is less reliable than course, because of the mistakes of the officers, over which the locator has no control; but of natural and artificial objects the locator can take note on the ground; hence the general rule, that course and distance yield to natural objects; while, under certain circumstances, course and distance may control, yet generally they are but guides to the other calls.

The actual identification of the survey, the footsteps of the surveyor upon the ground, should always be followed, by whatever rule they may be traced.

Calls are also divided into descriptive or directory and special locative calls. The former, although consisting of lakes and creeks, must yield to special locative calls, that is, to particular objects upon the corners or lines of the land.

Where a survey called to commence in the immediate neighborhood of a well-known corner, and to run east three thousand one hundred and sixty varas, to the corner of another survey, and by following the distance not one of the natural or artificial objects called for could be found at the places named, whereas if the first line stopped at the distance of seven hundred and fifty varas every crossing of the creek, spring, and artificial object called for were found, the long distance called for was disregarded, and, in the light of the surrounding circumstances, the survey was made to stop at seven hundred and fifty varas.

The fact that the survey thus established had been patented to another party does not disprove the identity.

Where the charge of the court, as to the law governing the case, was erroneous, the judgment will be reversed.

Where it is objected that a witness, whose depositions are offered, is not shown to be out of the county at the time of trial, the objection should be sustained, unless oath be made as required by the statute. Pas. Dig. art. 3726, note 845; 9 Tex. 339;12 Tex. 111.

Where the commissioner of the general land office testifies as to records in his office, it is a good objection that the records are not produced. They are higher evidence than the commissioner's conclusions as to their contents. Pas. Dig. art. 3715, note 839; 22 Tex. 293.

The object of the verdict of a jury is to respond to the issues made in the pleadings and supported by the evidence. The judgment must be a conclusion of law from the facts found, and all must be so certain that the ministerial officers may execute the judgment without further directions. 20 Tex. 442, 471;22 Tex. 173;25 Tex. 173.

Where the issue was as to the conflict of surveys, the verdict should find what the actual conflict is; and the judgment should rest upon the verdict, and not upon a survey made upon a former trial.

If a defendant proves three years' continuous possession before the institution of the suit, claiming under a location and survey under a valid certificate (with a title derived from the grantor), he is entitled to the benefit of the 15th section (three years) of the statute of limitation. Pas. Dig. art. 4622, note 1031.

APPEAL from Cherokee. The case was tried before Hon. REUBEN A. REEVES, one of the district judges.

This action of trespass to try title was instituted by appellee the 11th of September, 1858, alleging the appellee to be the owner of a tract of six hundred and forty acres of land, which is alleged to commence three thousand one hundred and sixty varas east of the southeast corner of the John R. Taylor survey of a half league; thence north four hundred and eleven varas to corner; thence east one thousand nine hundred and eight-tenths varas; thence south one thousand nine hundred and eight-tenths varas; thence west one thousand nine hundred and eight-tenths varas; thence north one thousand four hundred and eighty-nine and eight-tenths varas to the place of beginning, which is alleged to include the residence and improved land of appellant.

Plaintiff set out his title, and averred that in 1838 a certificate for six hundred and forty acres of land was issued to Mobly Rhone, which was approved as genuine, etc. That this certificate was filed on the land described in the petition, and that a patent duly issued to the land on the 31st day of July, 1845. He also alleged that, in 1852, he sued appellant for the same land, which suit was decided against him; and that this was the second suit allowed under the statute. Pas. Dig. art. 5298. No survey of the land was averred, nor was there any proof that a file was ever made on the land.

In an amended petition, it was averred that, in 1839, the John H. Irby or John R. Taylor surveys were well known; and that from that time the land claimed by appellee had been well known as the Mobly Rhone survey, and was known to the appellant and those under whom she claimed at the time of the accrual of their rights; that it was precisely similar in size and shape to a survey made for Reason Franklin, lying adjacent to it; that the beginning-point of the Rhone and Franklin surveys is the same for calls; that the surveys are identical in the calls for course and distance, except that the Franklin survey calls to begin nearer to the John R. Taylor survey; and it was averred that the land granted to Rhone lies entirely east of the Franklin survey; that there the marks, natural and artificial, as described in the patent to Rhone, cannot be found on the ground where it was alleged the land lies. It was averred that the mistake was caused by the accident, carelessness, or inattention, or conjecture of the surveyor, and the field-notes of a survey made by A. J. Coupland, under order of the court during the pendency of the former suit between these parties, were made a part of the petition, and it was averred that they correctly described the land patented to said Rhone.

Appellant answered, excepted to appellee's petition, because the land was not described with sufficient certainty, etc., and because appellee derived his title from the government, but did not aver that any survey of the land was made, and no sufficient description of the land was given.

For answer, appellee plead not guilty, etc., and limitation of three and five years; alleged that no survey in fact was ever made, covering or embracing the land in controversy; and averring that the land described in the patent to Mobly Rhone was entirely away from and off the land in controversy, which was occupied by appellant. Appellant also plead occupation and improvement made in good faith, etc.

On the trial, the plaintiff below read in evidence the patent to Mobly Rhone, which was objected to because it was variant from the land and patent described in the petition; there was a deed fom Rhone to himself; an agreed statement signed by the attorneys, admitting as genuine the certificate to Mobly Rhone, also that the certificate to John H. Power, under which appellant claimed, was genuine, and that said certificate was transferred by Power to Tubb in 1847, and by Tubb to Pearson in 1848, and by Pearson to Gray and wife in 1849, and by Gray and wife to appellant in 1851, that said transfers had been regularly recorded, etc.

E. G. Armstrong, a witness for appellee, said that in October, 1857, by order of the district court of Cherokee county, he made a survey of the land in controversy, which was given in the record; that in making the survey he went to the southeast corner of the John H. Irby or John R. Taylor survey, and ran a line from thence east three thousand one hundred and sixty varas; he set a stake for the beginning-point, and from thence ran the courses and distances as called for by the patent; that the survey so made did include the residence and improved land claimed by appellant; that he made diligent search at the place fixed upon for the...