United States v. Champion Papers, Inc.
| Decision Date | 17 May 1973 |
| Docket Number | Civ. A. No. 69-H-896. |
| Citation | 361 F. Supp. 481 |
| Parties | UNITED STATES of America, Plaintiff, v. CHAMPION PAPERS, INC., Defendant. |
| Court | U.S. District Court — Southern District of Texas |
Anthony J. P. Farris, U. S. Atty., Winston P. Crowder, Asst. U. S. Atty., Houston, Tex., for plaintiff.
Philip J. John, Jr., Baker & Botts, Houston, Tex., for defendant.
In this action which was tried to the Court, the plaintiff seeks to resolve a boundary dispute between the United States Forest Service and defendant Champion Papers, Inc. Jurisdiction is invoked under 28 U.S.C. § 1345.
The land which is the subject of the controversy is located in San Jacinto County, Texas. In 1938 the Government purchased most of the land comprising the Pleasant B. Riggs survey from Gibbs Brothers and Company. This land is a part of the Sam Houston National Forest located in Texas. In 1947 the defendant Champion Papers Company purchased the adjoining surveys of land. These surveys adjoin the southeast and southwest boundaries of the Riggs survey and are known as Washington County Railroad Company surveys No. 1, No. 2 and No. 5. The Riggs survey approximates a square, measuring about two miles in length on each side. It is laid out so that the corners are located at approximately true north, south, east and west. The property in all of these surveys has been utilized as forest land with its timber being cut at various times. Historically, fences have rarely, if ever, been built in the area of dispute. However, defendant has recently constructed a fence which follows its claimed boundaries in the disputed area.
The Riggs survey was originally surveyed for the Republic of Texas by Job S. Collard in February of 1838. The Washington County Railroad Company surveys were originally surveyed for the State of Texas by John Wade in 1861.
While contested in some respects, the following sketch most accurately depicts for illustrative purposes the general location of the Riggs survey in relation to the adjoining surveys:
The land which is in dispute constitutes approximately 32.85 acres. The Government as owner of the Riggs survey claims its southeast boundary runs from monument J-226 to monument J-156. Defendant Champion Papers, Inc., as owner of Washington County Railroad Company surveys No. 2 and No. 5, claims its northwest boundary runs from monument SJ-143 to monument SJ-145, and it has constructed a fence along such line. The land in contention is illustrated on the accompanying diagram:
The 135 year old original field notes of the surveyor Job S. Collard read as follows:
Survey for Pleasant B. Riggs of sixteen Labors 782131 5/10 square varas of land situated in Montgomery Co. west of the east forth of San Jacinto on Nebletts Cr. being a part of the quantity of land to which he is entitled by virtue of a certificate No. 98 issued by the board of land commissioners for the County of Jefferson—Beginning on the S. West boundary of Andrew Briscoe's survey 850 varas from the S.S.W corner of said survey set post from which a white oak 30 inches in diameter bears N. 5° E. 8 6/10 varas dist and an ash 12 inches in diam bears S. 85° W. 18 4/10 varas dist varas Thence S. 44° W 560 6/10 To Neblett's Creek 4 varas wide runs S. 75° E 4096 6/10 To 2d corner set post from which a pine 12 inches in diam bears S. 89° W. 4 6/10 varas dist and a pine 36 inches in diam bears N. 23° W 6 4/10 varas dist. Thence N. 46° W. 4096 6/10 To 3d corner set post from which a sweet Gum 10 inches in diam bears N. 22° E. 9 6/10 varas dist and a sweet Gum 8 inches in diam bears S. 22° W. 9 6/10 varas dist. Thence N. 44° E. 470 To Nebletts Creek 3 varas wide runs S. 75° E. 4056 Intersected said Briscoe's survey set post from which a Spanish oak 10 inches in diam bears S. 62° W. 5 4/10 varas dist and a Spanish oak 8 inches in diam bears S. 38° E. 4 2/10 varas dist. Thence S. 46° E. with said survey 700 To Spring branch 2 varas wide runs N. 45°E. 4104 6/10 To the beginning.
As can be seen from the claims of the parties and an examination of the diagrams, the precise issue before the Court is the location of the southeast boundary of the Riggs survey which, in turn, is dependent upon the location of the south corner of the survey. The problem is essentially one of retracing the footsteps of the original surveyor as he conducted the Riggs survey in 1838.
The Government contends that the south corner of the Riggs survey is at the point monumented by monument J-226, which is located approximately 100.98 varas southeast of defendant's monument SJ-143. Reliance is placed upon a 1929 resurvey conducted at the behest of Gibbs Brothers and Company. The proof adduced by the Government consisted essentially of (1) evidence with reference to the remains of certain bearing trees recited by surveyor Collard which consist of stump holes; (2) evidence with reference to a passing call by Collard to Neblett's Creek; (3) evidence with reference to a corner of an adjoining senior survey at which surveyor Collard began his survey; (4) evidence with reference to an adjoining junior survey which consisted of a projection of a line, the Bybee line, from Little Caney Creek; and (5) evidence with reference to various resurveys of the Riggs survey.
Defendant concedes that (1) the stump holes are in the locations asserted by the Government which are in the relative positions that surveyor Collard called for bearing trees in his field notes; (2) the distance from the eastern corner of the Riggs survey which is located by monument J-156 to Neblett's Creek in a southeastern direction more nearly corresponds to the distance called by surveyor Collard than the distance from the east corner of the Riggs survey as established by the 1912 resurvey of J. W. Oliphint; and (3) a projection of the Bybee line in a northeastern direction would be close to monument J-226.
Defendant, however, contends that the Government cannot establish by a preponderance of the evidence that the Collard survey established the southeast boundary of the Riggs survey to correspond to the line between J-226 and J-156. Defendant contends that the testimony has failed to locate any corner of the Riggs survey by original patent evidence and that the Bybee line is in conflict with the original patent notes of the Washington County Railroad Company surveys. It is asserted that there is as much evidence to establish the south corner of the Riggs survey at SJ-99 as there is for establishing it at J-226. In this regard it is strenuously urged that there is no substantial confirmable original patent evidence to be located at either monument. It is also asserted that there is evidence which can support a finding of the south corner at SJ-143. As a result of the inability to find original patent evidence, defendant contends that the course and distance from the stipulated west corner of the Riggs survey should control the establishment of the south corner.
The Court makes the following Findings of Fact and Conclusions of Law:
FINDINGS OF FACT
1. Surveyor J. S. Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832½ varas from the southwest boundary of the Vital Flores or Briscoe survey. This point is to the northwest of Neblett's Creek and was witnessed by an ash tree bearing S 85° W, 18 4/10 varas in distance and a white oak tree bearing N 5° E 8 6/10 varas in distance.
2. The ash and the white oak trees have since disappeared.
3. A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J. S. Collard.
4. As a result of the soil composition in the area, ash trees will not ordinarily grow any farther N 45° W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey.
5. A white oak stump hole which is 8 6/10 varas from a point called for by surveyor J. S. Collard is actually the stump hole of the original bearing tree called for by this surveyor. Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole.
6. U.S. Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J. S. Collard.
7. In 1838 Neblett's Creek crossed a line projected on a course S 44° W from monument J-156 at a distance of 560 6/10 varas. In 1967 this creek crosses a line projected on a course S 44° W from monument J-156 at a distance of 507 varas. As a result, since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 6/10 varas to its present course.
8. The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey, since any line projected from such a corner on a course S 44° W would cross Neblett's Creek at a distance that could not reasonably comply with the distance called for by surveyor J. S. Collard.
9. The defendant has presented no evidence locating the east corner of the Riggs survey.
10. The defendant did not survey or report any findings along a line projected N 44° E from its monument SJ-99.
11. The defendant did not survey or report any findings along a line projected N 44° E from its monument SJ-143 past the intersection of such line with a line projected N 45° W from the boundary between Washington County Railroad Company survey Nos. 5 and 6.
1. Surveyor J. S. Collard located the south corner of the Riggs survey by marking two trees "P.R." These trees included a 12 inch pine located 4 6/10 varas S 89° W and a 36 inch pine located 6 4/10 varas N 23° W from a post at the established corner.
2. Two stump holes with bearings and distance of S 89° W 4 6/10 varas and N 23° W 6 4/10 varas were located from the...
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Newfound Management Corp. v. Sewer
...new modern boundaries. Thein v. Burrows, 13 Wash.App. 761, 537 P.2d 1064, 1065 (Wash.App.1975); see, also, U.S. v. Champion Papers, Inc., 361 F.Supp. 481 (S.D.Tex.1973) (boundary dispute involving 135-year-old survey resolved by the court's attention to totality of the evidence including ev......