Turner v. Smith

• Decision Date: 13 May 1933
• Docket Number: No. 5395.,5395.
• Parties: TURNER v. SMITH et al.
• Court: Texas Supreme Court

61 S.W.2d 792

TURNER v. SMITH et al.

No. 5395.

Supreme Court of Texas.

May 13, 1933.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Mandamus proceeding by Fred Turner, Jr., to compel A. N. Lea, County Surveyor, to make a survey, in which Mrs. M. A. Smith and others were impleaded. Judgment for plaintiff was reversed and rendered by the Court of Civil Appeals (13 S.W.(2d) 152), and plaintiff brings error.

Judgment of Court of Civil Appeals reversed and that of district court affirmed.

Cantey, Hanger & McMahon, of Fort Worth, W. A. Keeling, of Austin, C. W. Truehart, of Longview, C. B. Collard, of Odessa, Mark McMahon and Gillis A. Johnson, both of Fort Worth, and H. O. Gossett, of Longview, for plaintiff in error.

R. R. Priest, of Rankin, Belcher & Montague, of Del Rio, James Cornell, of San Angelo, Brian Montague, of Del Rio, Leahy, Maxey, Macdonald & Holden, of Tulsa, Okl., Gibbs & Lewis, of San Angelo, and Frank Stubbeman, of Midland, Chas. A. Holden, of Tulsa, Okl., Chas. Gibbs, of San Angelo, Turney, Burges, Culwell & Pollard, of El Paso, Wright & Gibbs and Glenn R. Lewis, all of San Angelo, Rex G. Baker, of Houston, A. M. Gee, of Edmond, Okl., Ross C. Gwilliam, of Tulsa, Okl., Hiner & Pannill, of Fort Worth, Harris, Harris & Sedberry, of San Angelo, Ike S. Handy, of Houston, Bland Proctor, of Victoria, W. J. Rieker, and W. L. Dean, both of Fort Worth, J. W. Hill and Smith & Neill, all of San Angelo, Dean & Perkins, of Fort Worth, W. L. Harris, of Oklahoma City, Okl., A. D. Dyess and L. L. Mott, both of Houston, Thompson & Young, and Koerner, Fahey & Young, all of St. Louis, Mo., and L. B. Woodson, of Chicago, Ill., for defendants in error.

Robert Lee Bobbitt, formerly Atty. Gen., and C. W. Trueheart, formerly Asst. Atty. Gen., James V. Allred, Atty. Gen., Geo. T. Wilson, Asst. Atty. Gen., Dibrell & Starnes, of Coleman, John Sayles, of Abilene, and Edwin H. Yeiser, of Austin, amici curiæ.

PIERSON, Justice.

For a partial statement of the case we use the following from the opinion of the honorable Court of Civil Appeals, 13 S.W.(2d) 152, 154, 155:

"This suit was brought by appellee, Turner, in the district court of Pecos county, against A. N. Lea, county surveyor of said county. The action was brought under article 5323, R. S., for mandamus, to compel the surveyor to make a survey as required by said article of certain parcels of land, hereinafter particularly described, in Pecos county, alleged to be unsurveyed public free school land, which the petitioner desired to purchase. It was alleged that plaintiff previously had made written application of inquiry to the Commissioner of the General Land Office and the Commissioner refused to recognize the existence of a vacancy and give the name of an authorized surveyor to make the survey. All of the conditions precedent to the right to bring the suit are by the petition and evidence shown to have been met. The surveyor answered, averring a willingness to make the survey if ordered so to do, and impleaded numerous adverse claimants of the land in question. Among those so impleaded are Mrs. M. A. Smith and I. G. Yates. These last-named parties and those claiming under them will be hereinafter, respectively, referred to as the Smith interests and the Yates interests.

"In response to a peremptory instruction given upon the close of the evidence, verdict was returned finding the land described in the petition to be `vacant, unsurveyed land belonging to the Public Free School Fund of the State of Texas.' Thereupon judgment was rendered that all of the lands and areas described in the petition `are and the same are hereby adjudged to be vacant, unsurveyed public land belonging to the Public Free School Fund of the State of Texas, to wit: (Here follows description of the land,) and that such vacant public land above described is not included in or appropriated by either the Ira G. Yates Survey of Pecos County, Texas, or in any of the surveys in either Block 194, G. C. & S. F. Ry. Co. Surveys of Pecos County, Texas, or Block 178, T. C. R. R. Co. Surveys, Pecos County, Texas, or in any other survey; and that the said claimants and each of them impleaded herein are without any right, title, or interest in and to said area or any part thereof.'

"The judgment then proceeded to order the surveyor to forthwith make the survey and within 90 days do the other things required by the second section of the act, and the writ of mandamus against the surveyor was ordered issued as prayed for."

On appeal the honorable Court of Civil Appeals at El Paso reversed this judgment and rendered judgment "decreeing that the land described in the plaintiff's petition is not vacant, unsurveyed public land belonging to the public free school fund of the state of Texas" upon its holding that said land is included in the I. G. Yates patent to survey S. F. 12341, Pecos county.

For extensive and elaborate statement of the pleadings and facts in the case and the theories of the different claimants, see Judge Higgins' opinion, 13 S.W.(2d) 152.

In the Supreme Court this case was submitted and argued with two other important cases, to wit: No. 6339, Douglas Oil Co. et al. v. State of Texas (called the California Case) 61 S.W.(2d) 804, and No. 6338, Douglas Oil Co. et al. v. State of Texas (called the Whiteside Case) 61 S.W.(2d) 807, which are before us on certified questions from the honorable Court of Civil Appeals at Austin. These cases are being considered together, and a decision of each will be controlled by our holdings herein. The determination of these cases depends upon the legal method of locating on the ground block 194, G., C. & S. F. Ry. Company, in Pecos county, as surveyed by L. W. Durrell (an office survey) in 1883.

In this case the state of Texas through its Attorney General filed a plea of intervention in the district court, in which it prayed that "the court shall decree that the area described in plaintiff's first amended original petition to be vacant public free school land * * * and that this Court shall enter its judgment and decree and issue writ of mandamus directing the said defendant, A. N. Lea, as County Surveyor of Pecos County, Texas, to make survey of said area.' On motion of the defendants in the trial court this plea of intervention in behalf of the state of Texas was stricken from the record. On the authority of the state to intervene in such cases see Van Camp et al. v. Gulf Production Company et al. (Tex. Sup.) 61 S.W.(2d) 773, this day decided.

Petitioner Fred Turner, Jr., described the vacancy he sought to have surveyed as follows: "Being all of that unsurveyed land and area situated in Pecos County, Texas, about 57 miles east from Fort Stockton, the County seat of Pecos County, Texas, and about three miles west of the Pecos River, lying and being situate between the eastern boundaries of Surveys 33, 32, 31 and 30, Block 194, G. C. & S. F. Ry. Co. Surveys of Pecos County, Texas, and a portion of the eastern boundary of Survey 1, Block 178, T. C. R. R. Co. surveys of Pecos County, Texas, on the west; and the western boundaries of the Ira G. Yates survey of Pecos County, Texas, and a portion of the western boundary of survey 61, Block 1, I. & G. N. R. R. Co. Surveys of Pecos County, Texas, on the east; the north end of which unsurveyed area is the most northerly south line of survey 33, said Block 194, and a projection thereof toward the east to an intersection with the west boundary of said Survey 61, Block 1, I. & G. N. R. R. Co. surveys of Pecos County, Texas; and the south end of which is the projection in an easternly direction of the north line of survey 35, Block 178, T. C. R. R. Co. surveys, from the intersection of such projected line with the east boundary of Survey 1 in said last named block to its intersection with the western boundary of the Ira G. Yates Survey of Pecos County, Texas, at a point due east of the northeast corner of said survey 35 in said Block 178; and containing approximately 560 acres of land, more or less."

A decision of the question whether the alleged vacancy of fact exists depends upon the proper construction of the surrounding surveys. The various surveys in this vicinity were put in in the following manner and at the times stated:

Block 12, H. & G. N. Ry. Co. was surveyed on the ground in 1873 by William Nelson. The location of this survey is not disputed.

Block 1, I. & G. N. R. R. Co., was surveyed on the ground in 1876 by Jacob Kuechler, who marked a number of corners along the Pecos river. Later, in 1920 and 1921, R. S. Dod ran out the west line of this block and placed certain monuments on the ground along said west line. The location of this block is not disputed by any of the parties to this suit.

Block A-2, T. C. Ry. Co., was surveyed on the ground in May, 1881, by H. C. Barton.

Block C-3, E. L. & R. R. R. R. Co., was surveyed on the ground in June, 1881, by H. C. Barton.

Block C-4, G., C. & S. F. Ry. Co., was surveyed on the ground in October, 1881, by H. C. Barton.

Block Z, T. C. Ry. Co., was surveyed on the ground in 1882 by G. Schadowsky, who adopted the northwest corner of section 3 in block C-4, known as Perry Hill corner, for the southeast corner of section 2 in block, Z, being also the southeast corner of said block. Schadowsky also established and marked with a large stone mound with markings the northeast corner of section 33 in block Z, which is identified as the original corner, and which is known as Canyon corner in the north line of block Z.

L. W. Durrell in 1881 put in Runnels county school land block No. 3 as an office survey by protraction from block 1, I. & G. N. R. R. Co. survey. In 1882 Durrell made an office resurvey of this block. This block was later located on the ground by R. S. Dod, and its true position is not now in dispute.

In November, 1882, L. W. Durrell put in block 178, T. C. Ry. Co., as an office survey. The field notes of sections 1, 2, a...