Thomson v. Langdon

• Decision Date: 29 October 1894
• Citation: 28 S.W. 931
• Parties: THOMSON v. LANGDON et al.
• Court: Texas Supreme Court

28 S.W. 931

THOMSON v. LANGDON et al.

Supreme Court of Texas.

October 29, 1894.

Error from district court, Taylor county.

Action of trespass to try title by R. M. Thomson against W. R. Langdon and others. From a judgment of the court of civil appeals affirming the judgment of the trial court in favor of defendants, plaintiff brings error. Reversed.

The following is the opinion of the court of civil appeals (Head, J.):

Conclusions.

No statement of facts accompanies the record. The special findings filed by the trial judge are as follows:

"(1) That on the 18th day of January, 1878, there was duly issued to the Mud Creek Irrigation, Agricultural & Manufacturing Company, by the commissioner of the general land office, certificate or land scrip No. 1 for 640 acres of land. That said certificate was duly transferred and assigned to Wm. Shapard by said company on the 4th day of February, A. D. 1878, and that on the 23d day of March, A. D. 1881, said certificate was located on the premises described in plaintiff's petition, containing 539.8 acres, the file being duly recorded at the time in the records of the surveyor's office, Taylor county, Texas. That corrected field notes of said location for said 539.8 acres now sued for were made by H. M. Henderson, county surveyor of said Taylor county, on the 5th day of November, 1881, and were duly recorded in his office, with plat, as required by law; and said field notes, together with said application and certificate, were returned to and filed in the general land office of Texas on the 2d day of December, 1881, as required by law. That afterwards, to wit, on the 16th day of September, A. D. 1884, the said Wm. Shapard, by conveyance in writing of that date, transferred said certificate No. 1 to plaintiff, R. M. Thomson, said instrument being hereto attached, marked `Exhibit B,' and made a part of these findings. (2) That D. B. Corley, on November 15, 1881, applied to H. M. Henderson, county surveyor of Taylor county, to purchase under the act of July 14, 1879, as amended by the act of March 11, 1881, the same land sued for by plaintiff; that his application and field notes made by said surveyor (containing 546 acres, and completely covering plaintiff's prior location), were duly recorded and returned to and filed in the general land office, and patented to defendant Langdon, as his assignee, on or about June 29, 1882. (3) That both plaintiff and defendants have made and filed the following written agreement, which is made a part of this third finding, together with the sketch which is attached to and made a part of said agreement. (4) That the R. L. Harlan 78½-acre survey, mentioned in said plat, as well as the 546-acre survey mentioned in same, were on and prior to July 14, 1879, and on and prior to plaintiff's aforesaid location, unappropriated vacant public domain. (5) That the parallelogram described in said map or sketch as C, E, G, F, contains 49½ acres, and not 56 acres, as shown in said sketch. (6) That the surveys in said plat Nos. 102, 103, M. Talbott, 104, W. E. Vaughn, 105, J. M. Jett, 106 and 107, W. E. Vaughn, and 108 and 109 were put in by same surveyor, J. S. McDonald, and that the field notes of said surveys Nos. 104, 105, 106, and 107 bear same date, to wit, May 12, 1852. (7) That the field notes of survey No. 104, as described in its patent, is as follows: `Beginning at cor. (A) on the river, which is S. W. cor. of No. 103, and is identified by its bearing trees; thence E. 5,746 vs. to stake and mound; thence S. 1,344 vs., stake and mound; thence W. 5,006 vs., stake, from which a willow 6 in. dia. brs. N., 68½ W., 10 vs., a willow 7 in. dia. brs. N., 79 W., 10 vs.; thence down the river, with its meanders, to the place of beginning, — containing 1,280 acres.' That the field notes of Jett survey No. 105 are as follows: `Beginning at a stake set for upper corner of survey No. 104, from which a willow, 6 in. dia., brs. N., 68½ W., 10 vs., a willow 7 in. dia. brs. N., 79 W., 10 vs.; thence E. 2,488 vrs. to a stake and mound; thence S. 672 vs. to a stake and mound; thence W. 2,888 vs. to a stake, from which a mesquite 6 in. dia. brs. S., 26 E., 60 vs., a mesquite 3 in. dia. brs. S., 17½ E., 80 vs.; thence down the river, with its meanders, to the place of beginning, — containing 320 acres.' That each of said surveys were patented with field notes above given long prior to July 14, 1879. That the field notes of No. 106 are described in its patent, issued long prior to July 14, 1879, as follows: `Beginning at a stake, the upper cor. of sur. No. 105, from which a mesquite brs. S., 26 E., 60 vs.; another brs. S., 17½ E., 80 vs. (same corner as S. W. cor. of No. 105, which is identified on ground); thence E. 4,225 vs., a stake and mound; thence S. 1,020 vs., stake and mound; thence W. 3,935 vs., a stake, from which an elm brs. N., 27 E., 20 vs., another brs. S., 47 E., 40 vs.; thence down the river, with its meanders, to the place of beginning.' That none of these lines can be found on the ground, nor any of its corners, except its beginning corner, called corner `J' in said plat. That the point on the river designated as common corner of surveys Nos. 107, 108, and 109 is the only point that will answer for a common corner of said surveys. (8) That between the north line of survey No. 104 and south line of survey No. 105 there is an excess of 150 varas over the sum obtained by adding their east lines, as called for in their patents; and that between the north line of No. 106 and south line of No. 107 there is an excess of 890 varas over the sum obtained by adding their east lines called for in their patents. (9) That from the construction I give to the surrounding surveys mentioned, the plaintiff's location, though in all other respects sufficient to appropriate the land, is upon a vacancy, which, on July 14, 1879, did not contain more than 640 acres of land, which vacancy is embraced between the following surrounding surveys, to wit: Bounded on east by Lunatic Asylum surveys Nos. 23, 24, and 41; on south by S. P. R. R. Co. No. 48; on the west by W. E. Vaughn surveys Nos. 107 and 106, J. M. Jett No. 105, and on the west and north by W. E. Vaughn No. 104.

"Conclusions of Law.

"The court concludes from the foregoing facts found that surveys Nos. 104 and 105 must be so construed as to apportion the excess of 150 varas between parallel lines running east from the only known corners, A and J, adding to the east line of No. 104 100 varas, increasing its east line to 1,444 varas, and that its south line should be established as line H, G, F, in said plat, and that 50 varas should be added to the east line of No. 105, increasing it to 722 varas. That the north line of Vaughn No. 106 is a line running east distance called for in its patent from the corner J, and that the south line of Vaughn No. 107 is a line running east from a bend in the river designated in said plat as `common corner of surveys Nos. 107, 108, and 109'; that the excess of 890 varas between these lines must be apportioned between them, increasing the east line of No. 106 to 1,484, and of No. 107 to 1,446; that by thus construing said surveys the vacancy between Lunatic Asylum surveys Nos. 23, 24, and 41 on the east, S. P. R. R. Co. No. 48 on the south, and the said surveys Nos. 107, 106, 105, and 104 on west and north, would contain less than 640 acres, and therefore the premises sued for were not subject to location of plaintiff's certificate. I further conclude that at the time of the said transfer to plaintiff by Wm. Shapard, the certificate had become merged in the land, and that said conveyance was insufficient to convey the land upon which it had been located, and I therefore find for defendants.

                                          T. H. Conner
                                 "Judge 42d Jud. Dist. Tex."
                

(Then follows plat, with stipulation admitting same in evidence.)

In addition to what is said in the above conclusions filed by the court below, we will add that we think the south line of survey No. 104 must be established as a straight line from its southwest to its southeast corner. As neither of these corners could be found upon the ground, the court below located this line by apportioning the distance between the northwest corner of 104 and the southwest corner of 105, which are conceded to be adjacent surveys, located on the same day, by the same surveyor, in proportion to the number of acres in each; and, thus having established the beginning corner for the south line of 104, ran east the course and distance called for in the field notes. In the absence of all other evidence as to the correct location of this line, we think this was proper. Welder v. Carroll, 29 Tex. 317. At any rate, it would seem that the burden was upon appellant to show that he had a valid location prior to the locations upon which appellees' patents were issued; and as, in order to do this, it was necessary for him to show that the south line of 104 was located further north than it was established by the court below, we do not think enough appears in the record as presented to us to enable us to say that he discharged this burden. Duff v. Moore, 68 Tex. 270, 4 S. W. 530. What we have said is, of course, based entirely upon the findings filed by the trial judge. It will be observed that the south line of 104, as called for in its field notes, is considerably shorter than its north line, and that the north line of 105, as called for, is considerably shorter than its south line. This would indicate that the dividing line between these surveys commences at a point on the river where it bends considerably to the east, and the map made an...