State v. Texas Pac. Coal & Oil Co.

• Decision Date: 21 December 1921
• Docket Number: (No. 6441.)
• Citation: 236 S.W. 1021
• Parties: STATE et al. v. TEXAS PAC. COAL & OIL CO. et al.
• Court: Texas Court of Appeals

236 S.W. 1021

STATE et al. v. TEXAS PAC. COAL & OIL CO. et al.

(No. 6441.)

Court of Civil Appeals of Texas. Austin.

December 21, 1921.

Rehearing Denied January 18, 1922.

Appeal from District Court, Travis County; Geo. Calhoun, Judge.

Suit for title and possession by the State of Texas and others against the Texas Pacific Coal & Oil Company and others. From judgment for defendants, defendant named and B. D. Townsend appeal. Affirmed.

C. M. Cureton, Atty. Gen., E. F. Smith, Asst. Atty. Gen., and C. L. Black and G. B. Smedley, both of Austin, for appellants.

Wm. A. Vinson, of Houston, W. J. Oxford, of Stephenville, John Hancock, of Fort Worth, and Brooks, Hart & Woodward, of Austin, for appellees.

BRADY, J.

This is a boundary suit. The state of Texas, joined by B. D. Townsend and E. W. Fry, filed the suit against the Texas Pacific Coal & Oil Company et al., for the recovery of the title and possession of a tract of land containing 50.6 acres in Eastland county. Fry was the holder of a permit from the state to prospect for oil and gas on the alleged vacant land, and Towsend, through assignment, became the owner of such permit. The tract sued for is a narrow strip lying between the most northern east line of the Mary Fury survey and west line of the Jno. P. Rohus survey. The Fury was made August 22, 1874, purporting to contain 693 acres; the Rohus was made in 1857.

The case was tried by a jury, and submitted upon the general charge of the court and certain special charges. The verdict was for the defendants, and the state and Townsend have appealed.

The real question in controversy is the true location of the east line of the Mary Fury survey. The field notes of this survey describe it as beginning at the southeast corner of the T. & N. O. survey No. 1, and they describe the bearing trees of the T. & N. O. survey at that corner. The field notes run thence north 2,170 varas to the southwest corner of the B. H. Epperson survey, describing there the bearing trees for that corner of the Epperson. They run thence east with the south line of the Epperson 950 varas to a corner, describing there two bearing trees. They run thence north 950 varas to the northeast corner of the Epperson survey, describing there two bearing trees. They run thence east 1,054 varas, "the N. E. corner of this survey." They run "thence south 2,050 varas, the N. E. corner of the H. Rogers survey on W. B. of J. P. Rohus survey." They run thence west 1,344 varas to the Rogers northwest corner, describing there three bearing trees, two of which are the bearing trees of the Rogers. They run thence south 1,070 varas to a corner, and thence west 660 varas to the place of beginning.

It was the contention of the plaintiffs that the land sued for was vacant land, and that the most northern east line of the Fury survey was, at the south end of the strip, 88 varas west of the Rohus survey, and at the north end 179 varas west of such survey, and the line was 2,143 varas in length. There is no controversy as to the location of the west line of the Rohus survey, and none as to the location of any of the corners of the Fury survey, except its northeast corner and upper southeast corner. Appellants contended on the trial that the northern east line of the Mary Fury survey and its northeast and upper southeast corners are correctly constructed by corners and distances from its identified and undisputed corners; and that the call for the southeast corner of the Mary Fury survey to be at the northeast corner of the Henry Rogers and west line of the Jno. P. Rohus was, under the undisputed facts, made by mistake and by conjecture, and should be disregarded. Appellees contended that the northeast corner of the Henry Rogers survey had been identified by a pile of rock and a marked bearing tree, and was fixed in the west line of the Rohus by the evidence offered, and that the call for the Rogers corner was controlling, although to so extend the line would take it beyond the distance called for in the field notes.

It is insisted by appellants that the verdict of the jury and the judgment are without evidence to support them, and contrary to the great weight and preponderance of the evidence; also that they were entitled to a peremptory instruction. They relied largely upon the testimony of J. A. Bedford, whose name is signed to the field notes of the Mary Fury as one of the chain carriers, and who was engaged in making that survey and ran the instrument a good part of the time, having charge of the work. The testimony of this witness strongly tends to support the theory of the state and its permittees, but there is a mass of evidence in the record which would have justified the jury in discrediting his testimony, especially as to the reliability of his memory. These contradictory facts, as well as intrinsic circumstances in his testimony, give strong, if not convincing, support to the theory of the defendants. It would serve no useful purpose to here set out the evidence nor all the facts established thereby.

The evidence was sufficient to support these conclusions: (a) That the Rohus west line and its southwest corner were definitely fixed by the surveyor Erath in 1857, and continuously since that time have been well known and recognized, and that their location was known to Bedford in 1874, when he made the Mary Fury survey; (b) that the southeast corner of the Rogers as fixed by Erath was in the west boundary line of the Rohus as run by him; (c) that Bedford knew where the southeast corner of the Rogers and the west boundary line of the Rohus were when he made the Ahrenbeck and little Mary Fury surveys, just a few days before he made the Mary Fury survey in controversy, and that he must have known at the time he made the latter survey where the Rogers northeast corner and the Rohus west boundary line were. The previous work of Bedford on senior surveys in the immediate locality and which he tied to the Rohus lends strong support to this conclusion, as well as other facts and circumstances not necessary to mention.

The evidence amply justified the jury in declining to accept Bedford's testimony, and in adopting defendants' theory of the case. In these circumstances, the verdict will not be disturbed by this court. There is nothing to indicate that the jury were influenced by improper considerations, and it is, therefore, the duty of the appellate court to sustain the verdict. This is true, even though we might have reached a different conclusion from the evidence as it appears in the record. Sullivan v. Fant, 51 Tex. Civ. App. 6, 110 S. W. 514; Ry. v. Taylor, 58 Tex. Civ. App. 139, 123 S. W. 714; West v. Houston Oil Co., 56 Tex. Civ. App. 341, 120 S. W. 228; Boettler v. Tumlinson, 77 S. W. 824; Ry. v. O'Donnell, 58 Tex. 27; Lindsley v. Sparks, 20 Tex. Civ. App. 56, 48 S. W. 204. We do not wish to be understood as intimating, however, that our conclusion would have been different, upon the facts in the record, if the question had been committed...