Swisher v. Grumbles ( 1856 )

Wheeler, J.

It is agreed on all hands, that the decision of this case depends on the true construction of the deed of the 11th of July, 1839, from Decker, the original grantee of the league of land, of which the land in controversy is a part, to Browning, for the upper half of the league. The deed purports to convey “ all the upper half of a league of land,” “ the headright league of the said Decker, lying on the west side of Colorado river,” “ hereinafter designated more particularly, excepting two hundred acres on the back end of said half from the river.” It then gives the field notes of the survey of the league, with a more particular description of the grant, and concludes by describing the half of it which it was intended to, convey, thus : “ The said upper half of said league to include half of the front of said league, on the river, and back for quantity ; the lower line of said upper half running back from the river parallel to the upper line of said league ; so as to include the whole upper half, except two hundred acres to be taken off the back end of said upper half.”

What was in the mind of the grantor in using: this language ? What were the leading objects he had in view ? These, if they can be discerned, are the true criterion by which to interpret the grant. First, it was, to convey half the league ; and second, it was to be the upper half. These were the primary objects ; and then, as to the manner of making the division between himself and Ms grantee, it was to be so made as to give them an equal river front, and an equal quantity of land, These are the leading objects, manifest upon the face of the deed. Proceeding to the manner of dividing the land, it is said, “ the said upper half of the league is to include half of the front of said league, on the river, and back for quantity ; the lower line of said upper half running back from the river parallel to the upper line of said league the particular objects called for being, the river front of the league, and the line running back, parallel with the upper line of the league. These are to be the boundaries of the half league conveyed ; and both are to be observed and maintained, if it be possible ’ to give effect to both, consistently with the primary object of the grantor, to convey to the grantee the upper half of the league of land. For, “ it is an acknowledged rule, in construing a grant, that all of its parts must be taken together, and supported, if it can be done. (Urquhart v. Burleson, 6 Tex. R. 511.)

It is to be observed, that, in this deed for the division and conveyance of half of the league, there is a constant reference to the boundaries of the league, thus to be divided ; and in these there were four leading objects. These were an upper line, a lower line, a back line and a front or river boundary. These four leading objects appear to have been constantly in the mind of the grantor. They were constantly present to his mind, as the boundaries of the league which he proposed to divide between himself and his grantee. Spring creek does not appear ever to have occurred to his mind, as a distinct object of boundary. It is in fact, no part of the upper line, but is a part of the boundary of the front of the league, viewed in reference to its general configuration and boandaries, and as spoken of in contradistinction to the back line, and as distinguished from the upper and lower lines of the league ; as it is apparent its boundaries were present in the mind of the grantor. We cannot suppose—there is nothing in the deed to warrant the supposition,—that the mouth of Spring creek was to be taken to be the terminus of the front boundary of the league. The contrary is apparent from several considerations, some of which are so prominent that it is impossible to disregard them. And first, in speaking of boundaries of the league, reference is constantly made to the leading objects before indicated, e. g. the land is described as lying on the west side of and upon the Colorado river ; and in reference to the river, as having its front upon it; and an upper, a lower, and a back line. These, and none other, are the objects of boundary referred to by the grantor, outside of the field notes of the survey.— The front of the league, and the river, are constantly referred to as one and the same boundary. Thus, in the reservation out of the grant, of two hundred acres, it is said to be “ on the back end of said half from the river,” and the “ back end of said upper half,” which is said to front “ on the river ;” and the conveyance is of “ the upper half of said league, to include half of the front of said league, on the river,” constantly speaking of the league as an area having four sides, and the river as its front, in contradistinction to its back “ end” line, or side. But for the expression “ on the river,” in its connexion, in the clause last above referred to, there never could have been any difficulty or doubt, as to what was meant by the front of the league, or that it included, as well that part of it which is upon Spring creek, as upon the river proper. But the expression is evidently used there, as in other parts of the deed, merely as descriptive of one of the sides, or four principal boundaries of the league. Again, in the original survey, Spring creek is no part of any line of the league, though it is a boundary. The line from the mouth of Spring creek “ South 50 deg. W. with Spring creek 500 varas” to the point where the upper line of the league intersects Spring creek, is indicative merely of the general course of the creek, but the creek, and not this line, is the boundary. It is to be borne in mind that where the upper line of the league approaches the creek, and thence down to the bank of the river, the creek is of such width that the line could not cross it ; being deemed by the law, a navigable stream. Had it been á narrow stream, the upper line of the survey would have been continued across it in a right line to the river. Another evidence that it was considered, in making the survey, as a part of the river front, is, that the lower line of the survey is a right line from the south-east corner of the league, to the river ; making the width of the league on the river proper, less than it might otherwise have been. Moreover, it is evident that a dividing line, as required by the deed, “ running back from the river parallel to the upper line of said league,” cannot be parallel to Spring creek. So that any other construction than that which we have adopted would render this, which is the most definite, explicit and certain call in describing what shall be adopted as boundary in dividing the league, impossible, without wholly disregarding the other leading objects of the grant. And, accordingly, this call was disregarded in the decree of the Court. The dividing line adopted by the decree would change the form and configuration of the several moieties, from that of the league of which they are constituent parts ; whereas, it is evident, the intention was that those should be preserved, in making the division. It departs, moreover, from the first principle in the construction of grants and contracts, to which we have adverted, that all the parts must be taken together and supported if it can be done. The construction we have adopted ; that is, of considering Spring creek a part of the river front, or front boundary of the league, will give effect to all the calls of the deed ; and cause them more nearly to harmonize, than any other which can be adopted ; and we cannot doubt that it more nearly accords with, and effectuates the real intention of the grantor, than any other. All the calls will harmonize perfectly in every respect, except that the upper half will have more land than the grantor undertook to convey. But that must be deemed a subordinate consideration, unless there had been such a disproportion as to repel the supposition that the grantor could have intended or would have assented to it. There is no such disproportion, adopting the line run by the surveyor, Upshur, in establishing the dividing line, at the instance of the other parties in interest, holding under the grantor and grantee in the deed of 1839. We think he adopted the true method of making the division. It gives effect to every part of the deed ; renders all the calls consistent; and is the only method which can be adopted, looking to the intention of the grantor; which, when it can be ascertained from the grant itself, must govern.

All the various rules of construction which have, from time to time, been adopted and acted upon, are designed for the purpose of arriving at and carrying out the intention of the contracting parties. Where that is manifest, all else must yield to and be governed by it. We think it so in this case ; and in carrying it into effect, there is no departure from any established rule of construction. On the contrary, every rule applicable to the subject is observed.

We are of opinion that the judgment be reversed, and that judgment be here rendered for the appellant in accordance with this Opinion.

DECREE.

This cause came on to be heard on the transcript of the Record from the District Court of Travis county, and was argued by counsel, and in consideration whereof, it is the opinion of this Court, that there was error in the Judgment and Decree of the said District Court. It is ordered adjudged and decreed that the same is hereby reversed ; and this Court proceeding to render such Judgment and Decree herein as the said District Court should have rendered, and it appearing to the Court here that the true line of partition dividing the said headright league of Isaac Decker, according to the calls contained in the deed of said Decker to Browning of the 11th of July, 1839, is a line commencing on the Colorado river at a point equi-distant from the upper and lower lines of said league,^* Spring creek being regarded as a part of the river front, and not a part of the upper and side line of said league, and running back parallel with the upper line of said league to the back line thereof; and it further appearing that the said partition being so established and run, the ferry of said appellant will be upon the land claimed by him in his petition, and not upon the lands claimed by the said appellee. It is therefore ordered, adjudged and decreed by this Court, that the dividing line run as aforesaid, is the true partition line of said league as aforesaid, and that the Injunction originally granted by the Judge of the District Court of Travis county) enjoining and restraining the said appellee from obstructing or interfering with the ferry privileges and enjoyment thereof by said appellant, be re-instated, and -made perpetual, and that said appellant do have and recover his costs in the District and Supreme Courts.

* The decree does not appear to conform to the Opinion. The Opinion would seem to prefer the line K 1 run by Mr. Upshur in 1853, by which the tract was divided into two equal portions ; the decree recognizes the line I m (about 100 varas below) as the true line. Grumbles’ four acres only extended thirty yards from the river ; and either line established Swisher’s title to the land opposite the foot of Congress Avenue.”—Reps.