Dunn v. Land , 1917 Tex. App. LEXIS 284 ( 1917 )

MOURSUND, J.

Charles Land sued John Dunn in trespass to try title, seeking to recover 184.29 acres of land in Nueces county, described by metes -and bounds, and alleged to be a portion of survey 404, made by virtue of Beaty, Seale, and Eorwood certificate No. 1740. Dunn answered by plea of not guilty. The controversy resolved itself into one of boundary, Dunn contending that the land was situated within the boundaries of a Mexican grant made by the state of Tamauli-pas to Enrique Villareal, while Land claimed that it was situated west of the west line of said Mexican grant, and therefore the sale thereof to him by the state of Texas vested in him the title thereto. The trial resulted in a verdict and judgment for plaintiff for the land sued for and for damages in the sum of $23.16.

By the first assignment of error complaint is made of the ruling of the court in permitting the plaintiff to ask the witness Blucher, in effect, what was the line, as shown in the map then before the jury, designated as the western boundary of the Rincon del Oso grant according to the decision of the Supreme Court of Texas in the case of Schaeffer v. Berry. The case referred to is reported in 62 Tex. 705. The opinion speaks for itself, and need not be discussed. The failure of parties to introduce testimony in a ease cannot affect the rights of parties claiming other lands, and in this case the rights of Dunn cannot be affected by the fact that meager testimony was introduced in a case between other parties, or even by the fact, had it existed, that a jury in another case no testimony not conclusive, had found against his contention. We cannot imagine any more prejudicial testimony in a boundary suit than that of a witness to the effect that the highest court of the state had established the line at a place contended for by one of the parties: The qualification of the bill of exceptions fails to show any ground for admitting the testimony. The map in evidence, it is true, had the Dix line marked on it, .which was the line contended for by Land, but we are unable to see how this could justify" getting before the jury the witness’ construction of the Schaeffer v. Berry Case or any one else’s construction thereof.

The second and fourth assignments show that the witness was permitted to testify that the line contended for by Land had been recognized as the western boundary line of the Rincon del Oso grant since the decision of the Supreme Court in said case, and that the witness after such decision had made all the surveys for locations of state land certificates between the east line of the Grogaria Farias grant ánd the line contended for by Land. This testimony should have been excluded. The decision itself was inadmissible, and could affect no rights of the parties in this case, and the construction placed thereon by the witness or others should not. be permitted to go before the jury directly or indirectly. The logical inference from this testimony would be that the Supreme Court had held the land in controversy not to be embraced in' the Villareal grant. The decision itself might do less harm than such testimony, and this case should be tried on the evidence introduced therein entitled to probative force, and not upon the failure of parties in another suit to adduce testimony. W e cannot permit any intimation to the jury that the Supreme Court has established the line, and that defendant is controverting the correctness of such decision. That the testimony was highly prejudicial cannot be doubted. Colonial Mortg. Co. v. Tubbs, 45 S. W. 623. Assignments 1, 2, 4, 5, 6, and 9 are sustained.

By the third assignment complaint is made because the' court permitted plaintiff to prove by its witness C. F. H. Blucher that south of the Oso Creek, between the lines of the Farias grant and the Dix line, the territory was blanketed with state surveys. This witness had made a map on which all of such state surveys were delineated, which was introduced in evidence by defendant, and afterwards the question was asked. Under the circumstances plaintiff could ask the witness to explain the lines on his map. The map showed the alternate surveys to be marked “state,” and wel fail to see how the jury could have failed to understand that locations under the state had been made upon all of such territory. The assignment is overruled.

Defendant offered in evidence the record of a certificate in the Spanish language made by Antonio Canales, the original surveyor of the Villareal grant, with proper translation thereof, recorded in the deed records of Nueces county in 1849. The certificate is dated March 24, 1849, and is to the effect that the point designated with the letter B on the map of the Rincon del Oso which he made on August 2, 1831, and which in the titles is given the name of the Refugio, is the first'pass which is found on ascending the Nueces river higher than the heights of White Bluff, well known to all the old settlers, and that when he made the survey of the land Enrique Villareal was one of the chain bearers. The governor of Tamaulipas certified to Canales’ signature to the certificate, and a witness thereto swore before the county clerk of Nueces county that he saw Canales sign it. The record of the certificate was not admissible in evidence. Barrow v. Gridley, 25 Tex. Civ. App. 13, 59 S. W. 602, 913; Mackey v. Armstrong, 84 Tex. 159, 19 S. W. 463; White v. McCullough, 56 Tex. Civ. App. 383, 120 S. W. 1093; Magee v. Paul, 159 S. W. 325.

The eighth assignment is overruled. The witness was permitted to testify to the facts concerning his occupancy and possession, and the court only refused to let him state his conclusion that such possession wps exclusive.

By the tenth assignment complaint is made because the court permitted plaintiff to ask defendant’s witness Noakes the following question:

“Now, I will ask you, Mr. Noakes, if it isn’t a fact that since that time [the litigation as to the location of the western line of the Villareal grant] that land out there has, a great deal of it, been taken up by settlers under the state, lots of people out there who weren’t out there before have taken up land out there?”

The objection was th'at the testimony sought to be elicited was immaterial and irrelevant, and an effort to prove by parol what was shown by the records of the general land office and the records of Nueces county. The argument under the assignment relates almost entirely to the reference to litigation contained in the question, but the proposition submitted thereunder relates solely to the issue whether testimony that the land had been taken up by settlers under the state was irrelevant. The testimony, in our opinion, is irrelevant. The fact that persons have bought under the state other lands than that in controversy can add no force to ap-pellee’s contention as to the boundary line. It cannot he relevant as establishing general reputation for the general reputation admissible must be that existing before the controversy arose. It is bound to be prejudicial for it to be made known to the jury that the validity of many surveys granted by the state is dependent upon the location of the west line of the Rincon del Oso grant (Matthews v. Thatcher, 33 Tex. Civ. App. 139, 76 S. W. 61), and yet, in view of the maps used in evidence, we fail to see how much such fact could he kept from the jury, and for that matter, owing to the large territory involved, it is doubtless a matter of common knowledge in Nueces county. In view of the disclosure by maps of such locations, we hold that the error is harmless, and overrule the assignment.

The eleventh assignment complains of the admission of the testimony of A. M. French to the effect that during the years he had been an abstractor in Nueces county he had become familiar with the old land titles in the county. The witness’ knowledge of land titles has no bearing on his knowledge of the location of the boundary line in question, and should have been excluded. This error is trivial, and would not require the reversal of the judgment.

We see no objection to the testimony objected to by the twelfth assignment. The assignment is overruled.

Assignments 13 to 15, inclusive, complain of permitting plaintiff to read from a memorandum book of the county surveyor, containing data of applications to purchase school lands, memoranda concerning applications by defendant to purchase portions of sections 404 and 406. We presume the book was the register provided for in articles 3894 and 3895, R. S. 1879. We have found no statute, and are cited to none, which made said register or certified copies of its entries admissible in evidence. Objection to the evidence was made on the ground that such data was not competent evidence to prove the contents of the application, and such objection should have been sustained, as the agreement for the use of records, instead of copies, should be limited to those of which the contents are admissible. However, as the applications themselves were admitted, the evidence complained of was harmless.

By assignments 16 and 17 complaint is made of the introduction in evidence of a patent and deed to defendant. The patent was for survey 314, Gulf, Colorado & Santa Eé ' Railway Company, containing 277% acres, and the land is á part of that covered by' Kinney section IV-7,' the subdivision claimed by defendant under the Villareal grant. The deed was to 136.28 acres out of the strip sued for by plaintiff, and the land was described as a part of section 404, the state grant under which plaintiff claims. Appellant fails to state why he considered the testimony immaterial and irrelevant; while appellee is of the opinion that it tends to show that the Dix line was commonly and generally known after the Schaeffer-Berry suit as the west line of the Villareal grant. As we have before stated, the survey made by Dix created the controversy, and common reputation as to said line thereafter established would not tend to establish the footsteps of the original surveyor. We must therefore reject appellee’s theory. It is held, however, that acquiescense of a pax-ty to the suit in a dividing line, even though not of a character to estop him from. denying its correctness, may be shown as a circumstance tending to show that such line is the line as established by the surveyor who located the surveys. However, in this case the acts relied on to show acquiescence .occurred after the controversy created by the Dix survey arose, and could not tend to raise a presumption that the Dix line was the line established by Oanales. In fact, what defendant did was no more than to protect himself in case the Dix line should be determined to be correct. If plaintiff had bought the adverse claim under the Villareal grant to part of the land claimed by him, it could as well be held that the acceptance of the conveyance would tend to show that the east line of the Earias survey was the west line of the Villareal. We believe the evidence should be excluded, and sustain the assignments.

The eighteenth assignment complains of the refusal to give the following special charge:

“In this case you are instructed that the plaintiff cannot recover in this action othenvise than according to the' description he has given of the land sued for in his petition. And inasmuch as the defendant, Dunn, is in possession of and asserts title to only a part of the land described in the petition and sued for by plaintiff, the plaintiff is not entitled to recover, and you will accoi-dingly return a verdict in behalf of the defendant, John Dunn.”

The ruling was correct. When plaintiff sues for more land than defendant claims or is in possession of, the latter should promptly disclaim as to that part not in his possession; otherwise, even if he wins as to the part claimed by him, he will be charged with costs. Ballard v. Carmichael, 83 Tex. 366, 18 S. W. 738; Zarate v. Villareal, 155 S. W. 340. When defendant disclaims as to part, judgment will be rendered upon the disclaimer. Pouns v. Zachery, 46 Tex. Civ. App. 604, 103 S. W. 234. When he pleads not guilty, plaintiff will recover all to which he proves title, as well as his costs. Bender v. Brooks, 61. Tex. Civ. App. 464, 130 S. W. 653. If plaintiff is correct as to the boundary dispute, all tbe land sued for by bim is párt of section 404 and owned by bim, and be is entitled to recover it. Defendant, instead of disclaiming as to tbe part not covered b'y tbe Kinney section, pleaded not guilty, thus putting plaintiff on proof as to tbe whole tract sued for as fully as if defendant was in possession. Article 7741, R. S. 1911. Tbe cases relied upon bave no applicability to tbe question involved in tbis case. Tbe assignment is overruled.

Tbe twelfth assignment complains of tbe giving of a special charge limiting tbe consideration by tbe jury of .the evidence as to possession of the strip of land in controversy and adverse claims thereto to the issue of boundary and acquiescence. Tbe jury was told that, as there was no issue of limitation, tbe evidence should not be considered by them in any way as establishing any adverse claim or right to tbe land, but only in passing upon tbe question as to tbe location of tbe boundary line in dispute and tbe question of acquiescence, if any, in said boundary line. Tbe objection was that tbe charge would deprive defendant of one of bis most valuable defenses, namely, that bis long possession raises tbe presumption, on which tbe jury must act in the absence of evidence to tbe contrary, that tbe land was long ago severed from tbe public domain and has become and is tbe property of defendant. We fail to see how tbe doctrine in regard to presumption of a grant has any applicability to tbe facts of tbis case, in which it is admitted that both parties claim under grants from 'the sovereignty and connect themselves therewith, and tbe only issue is one of boundary. When a grant is proven and title thereunder established, tbe 'doctrine of presumed grant can have no applicability. Tbe assignment must be overruled. However, we believe the charge should not bave been given. No issue of limitation was pleaded, and it was unnecessary to limit the testimony, for fear the. jury would consider limitation. Tbe charge of tbe court submitted only one issue, that of boundary, and a charge such as was given may tend to create the impression that tbe court was afraid they would give too much weight to tbe testimony mentioned. Besides, tbe charge might confuse tbe jury, in that it unequivocally tells them tbe evidence should not be considered in any way as establishing any right to the land, and then states that they may consider it. All unnecessary charges should be avoided.

Tbe twenty-first assignment is based upon objections to certain paragraphs of tbe charge. Tbe objections in substance are that tbe portions of tbe charge are calculated, especially on account of not being applicable to tbe facts in evidence, to mislead and confuse tbe jury in an effort to reach a verdict; as there is practically no conflict whatever in tbe evidence as to the lines or any boundaries of tbe grant. -These objections were so' general that we fail to see bow tbe court could have been aided by them. It-is not pointed out in what respect the charge was not applicable to tbe facts in evidence, or bow it might confuse tbe jury, and tbe last part of tbe objection addresses itself to tbe question whether a peremptory instruction should bave been given. Tbe objections failed to show that tbis was a case in which it would not be proper to give in tbe charge tbe rules with regard to tbe relative dignity of calls, and for that reason the assignment is overruled. We will say, however, that we see no reason why tbis charge should not be given.

A similar complaint is made in tbe twenty-second assignment concerning paragraph IY 6 of tbe charge. What we bave said in discussing the previous assignment applies to tbis one, besides it occurs to us that defendant should not object to this paragraph; for, as we understand tbe evidence, it emphasized the importance of tbe matters relied upon by bim. Tbe assignment is overruled.

Paragraphs 7 and 8 of tbe IY subdivi-" sion are also complained of. We do not think these paragraphs are erroneous, nor are tbe ideas expressed in such language that it can be said tbe jury was probably confused thereby, and therefore we overrule assignments 23 and 24. At tbe same time we suggest that the first sentence of paragraph 7 be eliminated. For that matter, the idea conveyed by tbe entire paragraph appears to be sufficiently expressed in tbe concluding portion of paragraph 5 of tbe same subdivision. We also suggest that paragraph 8 could be, improved'by avoiding tbe use of tbe word “desideratum,” and using instead of tbe words generally used and concerning tbe meaning of which tbe jury can bave no doubt.

Tbe ninth, tenth, and twelfth paragraphs, subdivision IY, are also attacked. The ninth paragraph is objected to as being upon tbe weight of tbe evidence, because therein.tbe jury are told that it was tbe duty of Canales to extend a correct description of courses and distances into tbe field notes, and the map accompanying such field notes, and until the reverse was proven it would be presumed tbe surveyor did his duty in those respects, and in tbis connection it is contended tbe evidence clearly shows that tbe distances marked on Canales’ map are erroneous. When thus presented it appears that there is much merit in tbe contention, but, as tbe charge also states that it was Canales’ duty to actually run around tbe land intended to be embraced in tbe survey and see that such natural or other objects were designated on it as would clearly point out and identify tbe locality and boundaries of tbe given tract and to extend a correct description of these objects, natural and artificial, in tbe field notes and map, it is seen that the calls for cotfrse and distance are not particularly singled out so as to make tbe charge one on tbe weight of tbe evidence. Tbe matters called for relied upon by each party are thus required to be presumed to be correct, until proven incorrect. We overrule the assignment.

The first sentence in paragraph 10 announces a familiar rule of law applicable to boundary disputes, and is not subject to objection. The second sentence, under the peculiar facts of this case, might be upon the weight of the testimony because the jury might infer therefrom, when standing alone, that the call for the survey to be circumscribed on three sides by the waters called for must control proof of a survey inconsistent with such theory. However, in paragraph 11 the first part of paragraph 10 is applied to the facts in a way not objected to by appellant, and in such a way as to give prominence to his 'theory, as well as in a way so that the call for the survey to be surrounded on three sides by water is not permitted to control. ■Under the circumstances it must be held there is no merit in the twenty-sixth assignment of error.

The twelfth paragraph reads as follows:

“You are further instructed that the calls for course and distance will control a call for an unmarked line when the facts and circumstances offered in evidence tend to show that the surveyor calling for said unmarked line, was unacquainted with its true locality, and called for it by mistake, and such call for course and distance will harmonize the remaining calls of the grant, and furnish a correct guide for ascertaining the true 'boundaries of the grant as originally surveyed and called for in the grant. The rule that a call for a marked line of an elder survey will prevail over a call for course and distance has no application to an unmarked line whose terminal points cannot be identified by natural or artificial objects. Nor will a call for a line or corner of an older survey prevail over a call for course and distance when such line or comer of such older survey can only be found and identified by running course and distance from some other marked line or comer or well known object. Though of the calls employed in grants for land courses and distances are the lowest in dignity and importance, yet, if, from all the evidence in the ease, the land granted can be more certainly identified by running the courses and distances called for by the surveyor who made the original survey, then the grant should be so determined by the jury in arriving at their verdict.”

This charge is not applicable to the facts •of this case. The description of the Farias survey made by Canales, the surveyor thereof, calls for the boundary monument of “San Antonio” to be some distance south of the northeast comer of the survey, and for the boundary monument called “Nuestra Señora) d.el Refugio” to be at the southeast corner of said survey. He identified the corner sometimes called “Señor San Antonio,” sometimes called “San Antonio,” by taking for the monument a cluster of “anacuas and hack-berries,” and said that a cross was painted on it. The testimony of Blucher tends to show that this cluster of trees was to be found long after Canales made his survey. Canales did not run south from this point, because the “expert” informed him there was a large thicket through which the cord would have to run and where no water could be had. He therefore went back to the Puehtici-tas creek, along which he had surveyed for the west line of the grant to Herrera and sons and Farias, and from there ran out the south line, marking the southeast corner of the Farias survey. He stated that he reached a prairie where a long pole was set for a boundary land mark, fonning a cross on top of it, and he gave it the name of “Nuestra Senpra del Refugio,” and ordered the party to set a stone monument “as it was a locality where a wooden one might perish.” Said survey was made in. 1805. In 1831 Canales located the Rincon del Oso grant, under which defendant claims. The principle announced in the charge was applied in the case of Gerald v. Freeman, 68 Tex. 201, 4 S. W. 256, and other cases, in which the facts called for it, but it has since become well established that it cannot be laid down as an absolute rule, and limitations thereof have been found necessary. See Maddox Bros. v. Fenner, 79 Tex. 279, 15 S. W. 237; Ware v. McQuinn, 7 Tex. Civ. App. 107, 26 S. W. 126; Hermann v. Thomas, 168 S. W. 1048, and cases cited therein. In fact, it is merely a rule of evidence which in some cases is viewed as the best guide in determining what was actually included in the survey. Of course, if at the time the second survey is made there are no marks to be found by which the line marked for the older survey can be identified, the rule might be as applicable as if the line of the older survey had never been marked. If the marks existed at the time the second survey is made, but do not exist when the controversy arose, but the location of the old line can be identified, the same rule would be applied as if the marks still existed at the time of the controversy. Goodson v. Fitzgerald, 40 Tex. Civ. App. 619, 90 S. W. 898. The charge was inapplicable to the facts of this case, and upon the weight of the evidence in several particulars. Clawson v. Wilkins, 93 S. W. 1086; Holland v. Thompson, 12 Tex. Civ. App. 471, 35 S. W. 19. The assignment is sustained.

There is no merit in the twenty-eighth assignment. Whenever the defendant pleads not guilty, he puts in controversy plaintiff’s title to all land sued for, and a judgment that plaintiff take nothing by his suit has the same effect in trespass to try title as a judgment that defendant recover the land. The verdict and judgment are not subject to objection on the grounds urged. Articles 7741, 7758, R. S. 1911.

The twenty-ninth assignment is also overruled. There was no necessity for the verdict fixing the boundary for the Villareal grant. This case could not settle other persons’ rights even if the jury had fixed the boundary, and the only issue between plaintiff and defendant was whether the land sued for is within the Villareal grant. If none of it is within the grant, a verdict and judgment for plaintiff for the land sued for is proper; if part of it be found to be within the older i grant, it would, of course, be necessary to describe the portion awarded plaintiff so that it could be identified. Article 7755, R. S. 1911. We are not confronted with a case in which the description of the line or land by the jury is uncertain, and the authorities relied on are not applicable. l

The thirtieth assignment questions the sufficiency of the evidence to sustain the judgment. We have read the testimony carefully, and conclude that the location of the west line of the Rincon del Oso grant is a question for the jury.

Defendant contends that Canales’ survey appropriated all land lying east of the Farias survey, but, as we understand the evidence, ¡ there is nothing in the Farias grant to in-1 dicate that its northeast corner was called the “Refugio,” which is the name given by Canales to the northwest comer of the Rin-con del Oso survey. The southeast comer of the Farias grant is named in the Farias grant “Nuestra Señora del Refugio,” while Canales called his southwest corner “the one on the prairie.” Canales made no mention of the boundary point called “San- Antonio.” The specific calls therefore cannot be said to make the east line of the Farias survey the west line of the Rincon del Oso. It is attempted to show by other portions of the description that said lines are identical. Canales said his'survey was bounded on the west by the Barranca Blanco pasture land, and that the boundary of the “Refugio” was also the division from, the Barranco Blanco lands. The grants to the Herreras and- Farias do not state that the lands therein mentioned are known as the Barranca Blanco lands, but the survey thereof calls for Barranco Blanco, meaning “white bluffs,” and white bluffs are found on the Nueces on one of the Herrera tracts, but not on the Farias tract. It therefore became a question of fact as to what was meant by Barranco Blanco pasture lands. Ordinarily it would be said that a surveyor would, of course, call for lands granted, and that Canales must have meant the land on the west which had been granted by the sovereignty, and therefore went to the Farias survey. But it appears that he also surveyed the large survey known as Corpus Christi lands south of the Cayo del Oso, and called for the Barranco Blanco pasture lands to adjoin it on the west, when in fact said Herrera and Farias grants lie much further west than the west line of the Corpus Christi land. It also appears that Canales in describing the Rincon del Oso survey said it was bounded on the south by the Cayo del Oso “forming division from Corpus Christi lands,” and on the other sides (except the west) by the lagoons and the Nueces river, and also said that the land had an irregular shape because the Laguna Madre and the Cayo del Oso contract it upon all sides except the west. The | ¡ l evidence shows conclusively that the survey either does not go to the Farias east line, or else it is not contracted on all sides by the Cayo del Oso and the other waters named. Defendant’s theory is that the Cayo del Oso is only a part of the southern boundary, and that the remainder is constituted by a line run east from the southeast corner of the Farias survey until it strikes the Cayo del Oso, and that this line is called for by the words, “the one on the prairie and the one on the cayo” from west to east, on the southern side, while plaintiff contends that the “one on the prairie” does not mean the comer known as Nuestra ■ Señora del Refugio, but is a corner on the edge of the prairie upon the i Oso, because it is so placed upon Canales’ | map accompanying his description of the survey, and that the “one on the cayo” means a call at the mouth of the cayo. The map is very inaccurate in many particulars, and the descriptive calls conflict, for, if Canales ran his west line along the east line of the Farias grant, portions of his description will have to give way, while, if he ran it where plaintiff contends it should be established, the calls for Barranco Blanco pasture lands is a mistake, if thereby he meant to call for the east line of the Farias survey. It appears from the two surveys in evidence made by Canales that accuracy in the general expressions descriptive of the location of his surveys was not deemed necessary, and this would be true enough if his calls for boundary points were sufficiently specific. The problem is further complicated by the fact that there is a conflict as.to what is meant by cayo, upon which meaning" is dependent the location of the place where Oso Creek ends and the cayo begins. This point is material on the issue whether a grant of the size described by Canales can be made by adopting a west line running north from any part of the Cayo del Oso. The above will 'disclose same of the difficulties in locating the west line of the Rincon del Oso. We believe the question to be decided is one for the jury, and therefore overrule the thirtieth assignment, as well as the nineteenth assignment, which complains of the refusal of a peremptory instruction.

What we have said is not intended as a discussion of the relative weight and importance of the calls or of the circumstances relied upon, many of which have not been stated. Our purpose was to point out the conflicting calls and other elements of uncertainty, so as to show the basis for overruling appellant’s earnest contention that we should render judgment for him upon the evidence. The facts of this case cannot well be compared to the facts of any other case; still the reasons relied upon for holding the issue to be one for the jury find support in expressions in other boundary suits. See Booth v. Upshur, 26 Tex. 64; Titterington v. Kirby, 47 Tex. Civ. App. 595, 106 S. W. 899; Jacoby v. Norton, 40 Tex. Civ. App. 313, 90 S. W. 524.

The judgment is reversed, and the cause remanded.