Forbes v. Withers , 71 Tex. 302 ( 1888 )

Walker, Associate Justice.

This is a controversy as to the ownership of a strip of land of two hundred varas width, claimed by the appellants, who were plaintiffs below, to be included in the Boyce survey and on its east side. The defendant claims that it is included in the survey under which he holds, made and patented to the Johnson county school land, and on its west side. There was no controversy as to the title, and the only question was as to the division line or Common line of these two surveys. The surveys were made by the same man, and within a few days of each other.

The contest here is mainly upon the effect of the flies made by the certificate owners previous to the survey as affecting the priority of right in the land.

The file number ten made for the Johnson county school land is very indefinite. It is, however, called for in the file number fifty-eight under the Boyce certificate. And it is manifest that had the Boyce file been strictly followed in the survey, that the land in controversy would have been included in it.

The file, which is the initiatory" step provided by the statutes then in force for the acquisition of public land by a holder of a land certificate, is merged in the survey. Ho defect in the file will attach to the survey. The field notes of the survey, after being recorded in the surveyor’s office, are returned to the land office. The patent should include the field notes so returned for description of the land granted by it to the owner of the certificate. The laws afforded a means for enforcing the rights of the holder of the certificate to have the survey made in accordance with the file. If, however, the survey is acquiesced in by others adversely interested by reason of priority of location, and is received by the owner conceding rights which might have been enforced, such concession is final. The action of the surveyor is presumed to be proper, and the presumption can not be disputed after the surveys have matured into patents. Hence the inquiry as to what lands are granted by the patent is directed to the survey as made, and not as it should have been made by the surveyor. The file then becomes immaterial, save as it may throw light upon the actual survey. (26 Texas, 68.)

The action of the court in its charge given and the refusal of instructions asked upon the legal effect of the files was immaterial, and ás it was not calculated to injure the plaintiffs they can not complain.

The testimony showed that the Tyron survey was identified— its northeast corner, its east and north sides' were known. The southwest corner of the Johnson school land survey, which is common with the southeast corner of the Boyce, seems to have been identified, the identification perhaps aided by the Tyron survey. It is not disputed but that the southwest and northwest comers of the Boyce survey are well marked and known. There is also evidence that the north line of the Boyee was run, but there is found no corner at its east extremity. The north and south lines of the Boyce each call for three thousand nine hundred and seventy-eight varas in length. From the common corner, the southeast comer of the Boyce to the known southwest corner is only three thousand seven hundred and seventy-eight varas. Constructing the Boyce by running the east line from the southeast corner by its course gives the land in suit to the defendant.

In the absence of anything to mark the identity of the northeast corner of the Boyce we do not think the verdict was without or against the testimony in giving the land to defendant.

It is insisted that the court should have told the jury that upon finding from the testimony the northeast corner of the Boyce to be three thousand nine hundred and ninety-eight varas from the northwest corner and the length of the south line only three thousand seven hundred and seventy-eight varas they should find the dividing line by connecting these comers, giving plaintiffs all west and defendant all east of the line. This would only have been proper had both these comers been identified. It is not shown in the testimony that the northeast corner was so identified. Besides the corners of the ¡survey are all right angles.

The Johnson county school land survey could he identified without the aid of the Boyce. The Boyce survey was junior in ■date and hence in case of conflict would yield to the older.

The charge of the court as to the legal effect of the different ■calls, monuments, etc., was fair and full; carefully directing the jury to the issue to be determined.

We find no material error in the record and the judgment below is affirmed.

Affirmed^

Opinion delivered June 29, 1888.