State v. Sun Oil Co., 8481.

• Decision Date: 02 February 1938
• Docket Number: No. 8481.,8481.
• Citation: 114 S.W.2d 936
• Parties: STATE et al. v. SUN OIL CO. et al.
• Court: Texas Court of Appeals

114 S.W.2d 936

STATE et al. v. SUN OIL CO. et al.

No. 8481.

Court of Civil Appeals of Texas. Austin.

February 2, 1938.

On Rehearing March 9, 1938.

Appeal from District Court, Travis County; J. D. Moore, Judge.

Vacancy suit by the State and others against the Sun Oil Company and others to recover land as unsurveyed public domain belonging to the public free schools. From a judgment for defendants, plaintiffs appeal.

Affirmed.

Wm. McCraw, Atty. Gen., and H. Grady Chandler and Russell Renfro, Asst. Attys. Gen., for the State.

Kayser, Liddell, Benbow & Butler, of Houston, and Henry Brooks, Polk Shelton, Gaynor Kendall, and Homer C. DeWolfe, all of Austin, for all other appellants.

W. N. Foster, of Conroe, Ben H. Powell and James H. Hart, both of Austin, and T. L. Foster, of Dallas, Llewellyn & Dougherty, of Liberty, Foster & Williams, of Conroe, James Marberry, of Austin, and J. W. Timmins, of Dallas, for appellees.

BAUGH, Justice.

This is a vacancy suit. The land involved is in the Conroe oil field in Montgomery county. The State sued numerous parties to recover 331 acres as unsurveyed public domain belonging to the public free schools. Trial was to a jury, but at the close of the evidence the trial court instructed a verdict for the defendants, and rendered judgment accordingly; from which the State, and cross-plaintiffs, who asserted priority of rights to a mineral lease on the lands, have appealed.

The ultimate issue in the case depends upon the proper location on the ground of the John Bricker and R. G. Hamlett surveys in said county. If located as contended for by the State, the vacancy exists; if located as urged by the defendants, there is no vacancy. Reference to the attached map will aid in a better presentation of the issues raised: NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The State's contention is that the vacancy exists between the east lines of the Bricker and Hamlett surveys and the west lines of the T. & N. O. R. R. Company surveys 3 and 4.

The original surveys of the Harris, Henderson, Bricker, and Hamlett (originally surveyed for Murphy) were made in 1838. The West San Jacinto River formed the west boundary of the Harris and Henderson surveys. The south line of the Alfonso Steele, obviously a senior survey, formed the north lines of the Harris and Bricker surveys. The field notes filed in the General Land Office show the following: Those of the Bricker survey were certified by John M. Wade, as deputy surveyor, under a certificate dated February 28, 1839, as having been made since August 1, 1838, and approved as correct by the county surveyor of Montgomery county, on April 16, 1839. It is not shown just when they were filed in the General Land Office. Patent to the land was issued on August 11, 1845. These field notes called to begin on the south line of the Steele survey 2,790 varas (there is a contention by the State that this distance was 2,290 varas in the original field notes, which will be considered later) from the S. W. corner of the Steele as the beginning corner of the Bricker; thence N. 60 E. with the south line of the Steele 1,900.8 varas; thence southeast, southwest, and back northwest on a random line to the beginning. Each corner was located by marked bearing trees, but no other survey than the Steele was called for as an adjoinder.

The original field notes of the Hamlett, though made for Murphy, but forfeited in 1857, and in 1860 resurveyed with identical field notes for Hamlett, bear certificate of Wade as deputy surveyor of date February 21, 1839, that the survey had been made since August 1, 1838. These field notes were approved as correct by the county surveyor on April 22, 1839. They call for the Hamlett (or Murphy) to begin at the S. E. corner of the Bricker; thence to run S. 30 E. 1,900.8 varas to a marked corner; thence southwest to a marked corner; thence northwest to the southwest corner of the Bricker; thence northeast with the Bricker to the beginning.

The field notes of the Harris survey are signed by W. M. Rankin and John M. Wade, deputy surveyors. The certificate signed by the same surveyors, certifying that the survey had been made "since the first day of February, 1838," was dated February 15, 1838, manifestly an error. These field notes were approved as correct by the county surveyor of Montgomery county on April 5, 1839, filed in the General Land Office on May 1, 1839, and patent issued to said land on May 30, 1855. These field notes call for the Harris to begin on the river at the S. W. corner of the Steele; thence by measured meanders down the river to a marked corner; thence north 60 E. 3,033.1 varas to the S. W. corner of the Bricker survey; thence northwest with the Bricker to the south line of the Steele; thence southwest with the Steele 2,790 varas to the beginning.

The field notes of the Henderson likewise were signed by both Rankin and Wade, as is also the certificate to them. The certificate was not dated, but recited that the survey was made "since the first day of February, 1838." These field notes called to begin at the S. W. corner of the Harris, thence down the River, setting out 16 meanders by course and distance to a corner (no reference to the river being made other than to follow its meanders), "from which a bitter hickory 20 in. dia. marked H bears S. 75 degrees E. 10 vas. dist. and a lynn 8 in. dia. marked S bears N. 60 degrees E. 24 vas. dist."; thence N. 60 E. 3,062.9 varas to the S. W. corner of the Hamlett (Murphy); thence northwest with the Hamlett. (Murphy) to its N. W. corner; thence southwest with the Harris to the beginning.

The field notes of both the Harris and the Henderson recite that these surveys were begun by Rankin and finished by Wade. There was evidence tending to show that the original surveys of the Harris and the Henderson surveys were begun by Rankin in the early part of 1838. In all probability Wade accepted the work done by Rankin on these surveys as far as he had gone, and merely completed these surveys from where Rankin stopped. In view of the general custom, now well known, of surveyors, where all of such territory was public domain, to first locate surveys bordering rivers by running out from a river as a boundary, as well as the requirements of the law then in force, Rankin undoubtedly first ran the meander lines along the San Jacinto River. But it is equally manifest, we think, that when Wade undertook to complete Rankin's work, and to run out in addition the Bricker and Hamlett (Murphy) surveys, he either ran out the Bricker first, or surveyed it independently of the location of the Harris. This is to be inferred from the fact that the only adjoinder called for in the Bricker field notes was with the Steele survey and the beginning corner of the Bricker was located on the Steele south line course and distance from the latter's S. W. corner. Other than the calls for the south line of the Steele, the Bricker corners were located in its field notes by bearing trees only. Whereas the Hamlett survey was located from, and called for adjoinder to, the Bricker; the Harris called for adjoinder to the Steele, the river as its boundary, and to the Bricker; and the Henderson called to adjoin the Harris and the Hamlett.

The only boundary line of these four surveys which can now be definitely identified on the ground by the marks of the original surveyor is the south line of the Henderson and Hamlett surveys. The State contends that these four surveys were run out by the surveyor Wade on four consecutive working days and should be considered as a block or system; that since the south line is the only line which can be definitely identified on the ground by original markings, all of said surveys should be located course and distance from this line, beginning at what the State contends is the original bitter hickory tree marking the S. W. corner of the Henderson; or if it be wrong in its identification of this tree, then at the point where this south line reaches the West San Jacinto River. As so located, the east lines of the Bricker and Hamlett surveys fall approximately 500 varas west of where the defendants locate them, thus leaving the vacancy alleged.

The defendants contend that the S. W. corner of the Steele is definitely established at point C shown on the attached map; that the Bricker can be definitely located from this corner by its own field notes without reference to the other three surveys above set out; and that as so located no vacancy exists. Or, if the south line of the Henderson be run the distance along the accepted original south line from a point where the river meander line set out in the original field notes ends, if begun at point C, then there would be no vacancy. This point, as thus run, would be at the figure 8 on said map, and fall approximately 500 varas from an old channel of the San Jacinto River.

The State urgently insists that the bitter hickory tree called for in the original field notes of Rankin and Wade as a bearing tree for the S. W. corner of the Henderson was located by Boyles, surveyor, where the old marked south line of the Henderson intersects an old channel of the river. Much testimony related to the identity of the marks on the tree so found. The tree was cored by experts at the points where the various marks occurred, was cut down during the trial, and sections of it brought to Austin, and cut up both horizontally and vertically in an effort to verify the theories of the respective parties to the suit as to the bearing marks. Several surveyors testified that no H appeared on the tree. Boyles, who first concluded that it was the bitter hickory called for in the original field notes of Wade at the S. W. corner of the Henderson, testified on direct examination that in his opinion there was an old H marked on this tree, and traced an outline of such mark upon a photograph of the body of the tree. The evidence was undisputed, however,...