Welder v. Hunt

CourtSupreme Court of Texas
Citation34 Tex. 44
Decision Date01 January 1870

1. The opinion of the majority of a jury, though accepted as a verdict by agreement of the parties litigant, will not be regarded by this court as entitled to the consideration conceded to verdicts; and such a finding will be set aside if it be not supported by the weight of the evidence.

2. In the ascertainment of disputed boundaries it is a fixed rule of law that monuments shall govern courses and distances, and courses and distances govern calls for quantity; but in the absence of calls either for monuments or courses and distances, then calls for quantity may be resorted to.

3. If upon one side of the eldest grant no boundary line was described, either by calls for monuments or for courses and distances, and the line had not otherwise been established, then the holder of that grant would be entitled, as against subsequent locators, to claim upon that side so much of the public land as his grant called for.

4. If, however, the holder of the eldest grant had, by monuments or other notorious designation, established his boundary line in such a manner as to induce the public to believe it to be his true boundary, and subsequent locators had made their locations in the belief that it was his true boundary line, then the eldest grant could not be extended for quantity beyond that line.

5. In the progress of the present case, the holder of the eldest grant set up and claimed a certain line as the eastern boundary of his grant, though his boundary on that side was not defined by calls either for monuments or for courses and distances, and his grant called for seven and a half leagues. Held, that by his claim of such boundary line in the present suit, he will be estopped, as against subsequent locators, from asserting title to any land east of such line, even though the quantum of his grant be not contained within the area circumscribed by such line.

6. After the death of a surveyor, his declarations respecting a line officially run by him upon the ground may be given in evidence by any competent witness.

7. The case of Welder v. Carroll, 29 Tex. 315, cited, and the various rulings approved.

APPEAL from Victoria. Tried below before the Hon. Wesley Ogden. A full statement of the facts will be found in Welder v. Carroll, 29 Tex. 315.

Davis & Murphy and Phillips & Nevill, for the appellant.

Glass & Callender, for the appellee.


This case was fully before this court at the January term for Galveston, in the year 1867, and will be found reported in 29 Tex. 317, under the title of John Welder et al. against Rufus Carroll. To this case we refer for the points decided, a full statement of facts and an exhaustive review of the authorities.

The question for our determination is mainly a question of fact. This question was submitted to a jury in the district court, which failed to agree upon a verdict such as is usually required by law, and although the parties agreed to receive the opinion of the majority of the jurors, and regarded it as a verdict in the case, it cannot be regarded by this court as entitled to the sanctity which we ordinarily attach to the verdicts of juries. We shall not, therefore, hesitate to set aside such a finding if we find it unsupported by the weight of evidence. The instructions of the court to the jury were as follows:

“In this cause I charge the jury that the location and survey of the plaintiff, as alleged in his petition, if fully proven up by the evidence is sufficient to establish his claim to the land so located and surveyed, provided the same was not made upon...

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10 cases
  • Atchley v. Superior Oil Co.
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • May 25, 1972
    ...location of the boundary line in question was also the subject of controversy in Welder v. Carroll, 29 Tex. 317 (1867), and in Welder v. Hunt, 34 Tex. 44 (1870). In bringing our discussion of this basic question into proper focus, a lengthy statement is necessary. To a large extent we take ......
  • Kenedy Pasture Co. v. State
    • United States
    • Court of Appeals of Texas
    • January 24, 1917
    ...v. Gardner, 25 S. W. 737; New York Land & T. Co. v. Gardner, 11 Tex. Civ. App. 404, 32 S. W. 786; Hefner v. Downing, 57 Tex. 581; Welder v. Hunt, 34 Tex. 44; U. S. v. Roselius, 15 How. 31, 14 L. Ed. 589; West v. Cochran, 58 U. S. (17 How.) 403, 15 L. Ed. 115; De Arguello v. U. S., 59 U. S. ......
  • State v. Superior Oil Co.
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • June 26, 1975
    ...in both cases held that there were no vacant lands within the boundaries of such grants. Welder v. Carroll, 29 Tex. 317 (1867); Welder v. Hunt, 34 Tex. 44 (1870); and see Atchley v. Superior Oil Company, supra. We therefore hold that such presumptions are applicable here. However, we believ......
  • Ayers v. Watson
    • United States
    • United States Supreme Court
    • March 2, 1885
    ...distance, and that course and distance control quantity, which is correctly laid down in Stafford v. King, 30 Tex. 257, and Welder v. Hunt, 34 Tex. 44. The statement in the first part of the charge, that the jury should follow the tracks of the surveyor, so far as they could be discovered, ......
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