Swisher v. Grumbles

• Decision Date: 01 January 1856
• Citation: 18 Tex. 164
• Parties: JAMES G. SWISHER v. JOHN J. GRUMBLES.
• Court: Texas Supreme Court

18 Tex. 164

JAMES G. SWISHER

v.JOHN J. GRUMBLES.

Supreme Court of Texas.

1856.

Where the field-notes of a league of land called to commence at a point on the west margin of the Colorado river, and to run up the river with the meanders thereof to the mouth of Spring creek, thence N. 50 deg. W. with Spring creek, 500 varas; thence S. 30 deg. W. 6,100 varas; thence S. 60 deg. E. 4,019 varas; thence N. 30 deg. E. 6,200 to the place of beginning; and the grantee conveyed “all the upper half of a league of land,”“the headright league of said Decker, lying on the west side of the Colorado river,”“excepting two hundred acres on the back end of said half league from the river,”“the said upper half of said league to include half of the front of said league, on the river, and back for quantity; the lower line of said upper half running back from the river parallel to the upper line of said league; so as to include the whole upper half, except two hundred acres to be taken off the back end of said upper half; “and it was proved that Spring creek from its mouth to the point where the line of the league left it, was a navigable stream within the meaning of the law regulating the surveys of land; it was held that Spring creek was a part of the river front, within the terms of the deed; that the line of partition should be a continuous straight line parallel with the upper and lower lines of the league; and that its initial point should be the center of the river front (including Spring creek as aforesaid), unless such division should be so disproportionate as to repel the supposition that the party could have intended, or would have assented to it.

It would seem that where a tract of land is a trapezoid, fronting on a navigable stream and running back by parallel lines, and the grantee sells one-half thereof to be divided by “a line from the river parallel with the side lines,” the half so sold “to include half of the front on the river,” a compliance with all of said calls being impossible, the call for half of the front on the river must yield to the other two calls for half the tract, and for a division line parallel with the two sides; unless there be other terms, or perhaps extraneous circumstances in proof, showing that such was not the intention of the parties.

See this case as to the mode of ascertaining the center of a river front, under a call in a deed for half the river front of a given survey. 6 Tex. 511;26 Tex. 64.

All the various rules of construction, which have, from time to time, been adopted and acted upon, are designed for the purpose of arriving at and carrying out the intention of the contracting parties. Where that is manifest, all else must yield to and be governed by it.

Appeal from Travis. Tried below before the Hon. John Hancock.

Suit by appellant against appellee, February 3d, 1854. The petition alleged that plaintiff was the owner of the land on the west margin of the Colorado river, immediately opposite the foot of Congress avenue in the city of Austin; that he had determined to establish a ferry at said point, and had leased from the city of Austin the privilege of landing his ferry boats at the foot of said avenue; that he had already been at considerable expense in cutting down the bank and procuring a ferry boat; and that the defendant had entered upon plaintiff's land upon the west side of said river, with force and arms, and had erected a rail fence “from a point on the water's edge upon said river opposite said city above said avenue and running down said river to the water's edge near the lower edge of said avenue, completely shutting up and excluding the approach of said ferry,” etc. Alleged damages and prayed an injunction, which was granted.

The defendant answered alleging that the land was his own.

The land was part of the headright league of Isaac Decker, the field-notes of which are given in a deed from said Decker to Daniel Browning, for one-half of his said headright, as follows:

Republic of Texas, county of Bastrop. This indenture, made this 11th day of July, 1839, in the year of our Lord one thousand eight hundred and thirty-nine, between Isaac Decker of the county of Harris, in said republic, and Daniel Browning of the county of Fayette, in said republic, witnesseth: That whereas, heretofore, to wit: on the 18th day of June, 1838, the said Decker, for and in consideration of the sum of two thousand and twenty-two dollars, bargained and sold to said Browning, his heirs and assigns, all the upper half of a league of land, adjoining the league No. (20) twenty, hereinafter designated more particularly, excepting two hundred acres on the back of said half from the river. And whereas the said Browning hath this day paid to me in hand the last payment due to me for said land, as will appear by my bond for title, given to the said Browning on the day and year above written, to wit: one thousand dollars in specie currency. Now, therefore, the said Decker, having received full and entire satisfaction, as aforesaid, and in pursuance of his obligation in said bond specified, and in consideration of the said sum of money hereby acknowledged to have been received, as aforesaid, from said Browning, the said Decker hath this day transferred, alienated, remised, released and conveyed, and, by these presents, doth transfer, alien, remise, release and convey unto the said Daniel Browning, his heirs and assigns, the tract or parcel of land aforesaid, to wit: the upper half of the headright league of said Decker, lying on the west side of the Colorado river, adjoining league No. (20) twenty, and northwest of a ten-league grant; thence up the river, with the meanders thereof, to the entrance of Spring creek; thence north 50 deg. west, with Spring creek, 500 varas to a stake from which a Spanish oak, twenty-four inches in diameter, bears N. 33 deg. E. 0 varas; a Spanish oak eight inches in diameter bears S. 28 deg. W. 3 varas; thence S. 30 deg. W. 6,100 varas to a stake and southwest corner of league No. 20, from which a live oak, twelve inches in diameter, bears S. 28 deg. W.; a live oak, eight inches in diameter, bears S. 60 deg. E. no varas; thence S. 60 deg. E. 700 varas, to Williamson's creek, running S. W.; 1,800 varas to Williamson's creek, running S. E.; 2,650 varas to Williamson's creek, running S. W.; 3,100 varas, to Williamson's creek, running S. E.; 3,500 varas, to Williamson's creek, running S. W.; 4,019 varas, to a stake and southeast corner of league number twenty, from which a live oak six inches in diameter bears N. 15 deg. E. 90 varas; a live oak eight inches in diameter bears S. 55 deg. E. 105 varas; thence N. 30 deg. E. 6,200 varas, to the river and place of beginning, which said league was granted to said Decker, as a settler in Milam's colony, by a deed dated 17th day of March, 1835, and signed by Talbot Chambers, commissioner of said colony, and now on file in the general land office of said republic, a copy of which accompanies herewith. The said upper half of said league to include half the front of said league on the river, and back for quantity; the lower line of said upper half, running back from the river parallel to the upper line of said league, so as to include the whole upper half except two hundred acres to be taken off on the back end of said upper half; containing two thousand and twenty-two acres, more or less. To have and to hold said tract or parcel of land to him the said Browning, his heirs and assigns, with all the appurtenances thereunto belonging, to his and their own proper use, benefit and behoof in fee simple.

And the said Decker hereby declares said bond to be free from all mortgage and incumbrance whatsoever, and as such, he sells the same in good faith, hereby relinquishing all right, title and dominion in and over the same, and fully vesting said Browning, his heirs and assigns, with full power to use, enjoy and dispose of the said land, as his or their own property, acquired by a just and legitimate title. And the said Decker binds himself, his heirs, executors and administrators, the title of said land to the said Browning, his heirs and assigns, forever to warrant and defend.

The plaintiff claimed, by regular chain of conveyances from Decker, part of the lower half of the league, with a call for the division line between the upper and lower half leagues, for his upper boundary; and the defendant claimed by regular chain of conveyances from Browning, a part (four acres, more or less) of the upper half league, with a call for the same division line for his lower boundary.

In 1853 four persons, among whom was the plaintiff, but not the defendant, representing themselves as the owners of a portion of said league (and it appeared that they owned nearly all of it), had authorized H. L. Upshur, then district surveyor of Travis district, to survey and subdivide the said tract of land between them according to their several rights, binding themselves to abide by the division so to be made. Upshur commenced at the beginning corner and meandered the Colorado river as follows:

West, 101 vs.; N. 60 1/2 W. 170 vs.; N. 53 1/4 W. 110 vs.; N. 56 1/2 W. 275 vs.; N. 3 E. 81 vs.; N. 55 3/4 W. 405 vs.; N. 18 W. 445 vs.; N. 19 E. 120 vs.; N. 14 W. 72 vs.; N. 30 W. 385 vs.; N. 5 W. 93 vs.; N. 10 E. 145 vs.; N. 63 3/4 W. 370 vs.; N. 86 W. 645 vs.; N. 62 W. 410 vs.; N. 69 1/4 W. 200 vs.; N. 64 W. 310 vs.; to the mouth of Spring creek; thence up Spring creek S. 62 W. 570 vs. to the original corner of said tract of land.

And measuring on he found the original S. W. corner at 6,500 varas, instead of 6,100 as in the original field-notes. The S. E. corner he found at 4,100 varas, instead of 4,019; and the place of beginning at 6,400 varas, instead of 6,100; making the survey contain 4,933 1/2 acres, being 504 1/2 acres more than a league.

Upshur then commenced at the lower corner again and followed the meanders of the river up 2,594 varas to a...