Winder v. Williams , 23 Tex. 601 ( 1859 )

Wheeled, C. J.

The original petition was, manifestly, insufficient. It showed no title or right in the plaintiff to sue. It did not aver ownership of the certificates in the plaintiff; nor did it give any description or designation of the plaintiff’s entries, or show in what locality the land is situated. The entry should have sufficient certainty to apprize the surveyor what particular land he is required to survey. And to entitle the plaintiff to a mandamus against the surveyor, it devolved on him to show that he had made such an entry, and that there was no impediment to the making of the survey. This his petition failed to show.

Nor was his petition, as amended, sufficient. The entry, as amended, gave no specific directions as to the form of making the survey. The land could not be surveyed in a square, as the law, in the absence of instructions, would have directed the surveyor, without conflicting with other surveys. The entry or location, as indicated by the party, whatever construction be placed upon it, could not be pursued in making the survey; nor could the land be surveyed in a square, and include the land which the plaintiff claims, as shown by the survey made under his directions. It cannot be pretended, that the entry embodied an instruction to the surveyor, to survey for the plaintiff, the land embraced by this survey; and the complaint is, that this was not done. The entry ought so certainly to designate the land to be appropriated by the survey, that the surveyor shall have no excuse, and will be in default by failing to survey. He cannot be required to correct the mistakes, or construe the ambiguous or contradictory calls of an entry. This may require legal knowledge, which he does not possess. To authorize the awarding of a mandamus against the surveyor, in such a case, it must appear that his duty was clear and unmistakable. It does not so appear in the present case. The survey, moreover, as made, shows a conflict with other persons, not before the court. These persons must have been made parties, and the conflicting rights settled, before the plaintiff would be entitled to a mandamus against the surveyor. But the plaintiff was not entitled to a mandamus, by reason of the uncertainty of his entry.

The petition was not framed, with the view of maintaining an action against the other defendants, otherwise than as necessary parties to the proceeding against the surveyor; nor is it insisted, that it is sufficient to maintain the action as against them only. The plaintiff, having failed to maintain his right to have the land surveyed, as claimed by him, there was no error in sustaining the demurrer, and the judgment is affirmed.

Judgment affirmed.