State v. Gulf Oil Corp., 3123

• Decision Date: 28 January 1954
• Docket Number: No. 3123,3123
• Citation: 264 S.W.2d 743
• Parties: STATE v. GULF OIL CORP. et al.
• Court: Texas Court of Appeals

Page 743

264 S.W.2d 743

STATE v. GULF OIL CORP. et al.

No. 3123.

Court of Civil Appeals of Texas, Waco.

Jan. 28, 1954.

Rehearing Denied Feb. 18, 1954.

John Ben Shepperd, Atty. Gen., Thomas Black, Asst. Atty. Gen., for appellant.

W. O. Bowers, Jr., and Orgain, Bell & Tucker, Beaumont, Graham Bruce, Orange, Archie D. Gray, Joe M. Green, Jr., Fred A. Lange, Houston, for appellees.

McDONALD, Chief Justice.

This is a Trespass to Try Title suit covering an alleged vacant strip of 108 acres, purportedly lying between the South line of the William Stephenson League and the North line of the William Allen Survey in Orange County.

The issue is whether the original surveyor of the Wm. Allen Survey placed its N.E. corner in the South line of the Wm. Stephenson League (in which event there is no vacancy and the 108 acres belong to appellees); or whether he placed the N.E. corner of the Wm. Allen Survey at a point generally South of the South line of the Wm. Stephenson League (in which event there is a vacancy, and as such belongs to appellant State of Texas).

It is believed the schematic diagram below will aid in understanding the contentions of the parties.

The original field notes of the Wm. Allen Survey as made and certified by O. H. Delano call to begin at the Southwest corner of a survey made for John Stephenson (Point A on diagram) and ran N. 44 deg. 40 min. West 4020 varas 'a stake in mound' for the Northeast line and the N.E. corner of the Allen Survey.

The SW corner of the John Stephenson Survey is well known and is an agreed point. Commencing at this point and pursuing a course 44 deg. 40 min. West for 4020 varas will bring us to Point B on diagram, which is the point that appellant claims to be the N.E. corner of the Wm. Allen Survey, as originally set by Delano, when he surveyed the tract in 1838.

Appellees contend that Point C (diagram) is the N.E. corner of the Wm. Allen Survey as set by Delano when he surveyed the tract in 1838, although Point C is a distance of some 4500 varas from Point A along the prescribed course.

Trial was to a jury, which found that the original surveyor of the William Allen Survey placed its N.E. corner in the South line of the William Stephenson League (Point C), which finding eliminated the claimed vacancy.

Judgment was entered for appelles, and the State of Texas appeals to this court on 7 Points, the first 6 of which contend that there was no evidence or insufficient evidence to sustain the finding of the jury.

The question for determination therefore is whether or not there was sufficient competent evidence to sustain the jury's finding that the N.E. corner of the Wm. Allen Survey was located by the original surveyor in the S. line of Wm. Stephenson League.

A review of the record is necessary.

Both appellant and appellees presented a surveyor witness, who had made surveys in an attempt to correctly locate the N.E. corner of the Wm. Allen Survey. Surveyor Foyle testified for appellant and locates the N.E. corner at Point B on the diagram 4020 varas from the point of beginning (Point A). Surveyor Compton testified for the appellees and locates the N.E. corner at Point C.

The original field notes of the Wm. Allen Survey call to 'begin at the SW corner of a Survey made for John Stephenson.' (A common corner between the Wm. Allen and the John Stephenson Surveys and recognized by all surveyors in the vicinity.) 'Thence N 44 deg. 41 min. W at 1000 varas a marsh 200 varas wide at 1900 varas Gum Pond 120 varas wide at 2320 varas Gum Slew 50 varas wide at 2450 varas open prairie at 4020 varas stake in mound.'

While the original field notes of the Wm. Allen Survey called for it to commence at the S.W. corner of the John Stephenson Survey-the original field notes of the John Stephenson Survey called for that survey to commence at the N.E. corner of the Wm. Allen Survey at a post in mound 'Thence S. 44 E. with said Survey 4415 varas to the SE corner of this survey.'

The Allen Survey was shown to have been surveyed in 1838 and the John Stphenson Survey field notes are dated in 1844, with no rectial as to the time the survey was actually made. However, since the Stephenson field notes called to commence at the N.E. corner of the Allen, it is obvious (and appellant's witness surveyor Foyle so testified) that it is doubtful that the Stephenson was a junior survey.

Delano, who originally surveyed the Wm. Allen in 1838, in 1840 surveyed a division of the John Stephenson Survey having to do with partitioning his estate upon his death, in Tract 4, makes its 2nd call: 'for the W corner of the original John Stephenson Survey which is the N.E. corner of the Wm. Allen Survey.' These field notes were prepared by Delano-the same surveyor who surveyed the Wm. Allen two years before. Witness Compton testified that surveyor Delano must have known where he was. Elijah Allen, a son of Wm. Allen, was one of the Commissioner making the partition. John Stephenson was a son-in-law of Wm. Allen. Wm. Stephenson was a son of John Stephenson. All of these people were close relatives-lived close together-and certainly knew where their respective property lines were.

The endorsement on the original Certificate under which the Wm. Allen Survey was located and surveyed reflects 'Surveyed on the within certificate 14 3/4 labors of land * * * in the County of Jefferson and being bounded by marshes and other surveys, the remaining quantity could not be obtained'. To be bounded by other surveys it would of necessity have to be bounded on the N. by the Wm. Stephenson.

The Certificate was for 1 League and Labor of land. The Wm. Allen heirs agreed that the balance of the land to which they were entitled under the certificate might be surveyed in Milam County. It is certainly a strong circumstance that had any further land been available between the Allen and the Wm. Stephenson Surveys they would have taken it there, instead of in Milam County.

As required by law, in 1840, surveyor Delano, who made the Wm. Allen Survey in 1838, filed with the State Land Commissioner a map showing the then surveyed land in Jefferson County. It is noted that this map shows that the Wm. Allen Survey joins the Wm. Stephenson League and that the N.E. corner of the Wm. Allen joins the N.W. corner of the John Stephenson and that this corner is in the S. line of the Wm. Stephenson League.

The evidence reflects that all are in agreement as to the location of the S. line of Wm. Stephenson League and that it is marked on the ground by the Mansfield Ferry Road that has been there for many years.

Witness Compton testified that to reach the S. line of the Wm. Stephenson Survey you have to extend the Allen N.E. line 515 varas beyond the call distance of 4020 varas but not beyond the other call as shown by the endorsement on the 1838 Certificate viz.: 'being bounded by other surveys', and the 1840 map which shows that the Wm. Allen N. line adjoins the Wm. Stephenson S. line.

Further, the Wm. Allen field notes call for a 'stake in corner' at the 4020 vara distance.

This called for an artificial monument. Surveyor Compton testified he did not find the stake in mound at the 4020 vara distance-and surveyor Foyle testified that he didn't either-and that he didn't even try to find it since he was not interested in its location.

From Foyle's testimony he ran only the course and distance portion of this call of the Wm. Allen, disregarding the portion calling for 'stake in mound', which was an important part of the call.

Surveyor Compton testified that if you have a call for course and distance, the terminues of which is in a stake in mound, and you cannot find the stake in mound at that distance, one must look for further evidence such as what other surveyors had said about the stake, because in most instances the work of other surveyors leads you back to the correct corners. Surveyor Foyle said that it is of prime importance to a surveyor when a stake is called for at the end of a line, but cannot be located, to ascertain, if possible, the location of that stake, since the stake would control the call for distance. This testimony is inconsistent, however, with what Foyle actually did on the ground.

The evidence further shows that the N. line of the Wm. Allen Survey at 4500.7 varas is marked by an old fence, while there is nothing at the 4020 vara distance.

Witness Hollis testified that he saw an old stake which was pointed out by Dan Patillo, now deceased, as the N.E. corner of the Wm. Allen Survey, and that it was at a point in the side of the Mansfield Ferry Road.

Witness Peveto testified that Surveyor Noguess, in 1910, found an old cypress stake when he, Peveto, was present, and that this stake was at the same place that the general reputation in the neighborhood placed the N.E. corner of the Wm. Allen Survey; and that...