Kirby Lumber Co. v. Adams , 62 S.W.2d 366 ( 1932 )

LAWHON, Justice.

This is the second appeal in this case. The opinion of this court on the former appeal is found in 291 S. W. 279.

On the 24th day of May, 1836, David G. Burnett executed a power of attorney to Thos. Tobey of New Orleans, La., appointing him as agent of the Republic of Texas, to sell public lands of Texas for the purpose of raising money for the government. Thos. Tobey, under this power of attorney, issued scrip for certain lands, and in 1839 B. F. Mott, deputy surveyor of Jefferson county, surveyed for holders of this scrip a number of sections of land lying immediately north and south of the boundary line between Jasper and Orange counties. These surveys are known as “the Tobey scrip surveys.” There are two tiers of these surveys south and adjoining the county line in Orange county, and three tiers immediately north of the county line in Jasper county. The George Uhler survey of tlie Tobey scrip surveys is the southwest section in Jasper county. The Wm. F. Harrison lies immediately north of the George Uhler, and the Samuel Hentzelman survey lies immediately north of the Wm. F. Harrison. Practically all of the sections in the Tobey scrip surveys are 1,900.8 varas or one mile square.

This suit involves the title to what is known as the W. J. B. Adams survey of 644.5 acres in Jasper county, and also involves the value of certain timber claimed to have been removed from this land. It is the contention of the appellees that the Adams survey lies between the George Uhler, the Wm'. F. Harrison, and Sam Hentzelman surveys, on the east, and Texas & New Orleans sections 81 and 82 on the west. The appellants contend that the Adams survey is located upon the Uhler, Harrison, and Hentzelman surveys, and, they being prior grants, the Adams patent was void. They further contend that if it should be held that there was a vacancy between the Hentzelman, Harrison, and Uhler surveys and Texas & New Orleans sections 81 and 82, that most of this land was appropriated under a location of a land certificate issued to Eva Lancaster and transferred to W. H. Smith. The court submitted to the jury only one issue, and that was the true location of the west line of the George Uhler survey. This issue necessarily determined the west line of the Wm. F. Harrison and the Samuel Hentzel-man, as these surveys were immediately north. A jury found in favor of appellees’ contention as to the location of this line. The land in controversy is 785 varas in width, and according to the contention of appellees it is this distance between the Tobey scrip surveys and Texas & New Orleans sections 81 and 82. Judgment was entered in behalf of appellees on the verdict of the jury as to boundary, and in behalf of appellants as to any timber cut and removed from such land.

Appellants very vigorously assert that there was no issue for the jury as to the location of the west line of the Uhler, and necessarily the west line of the Harrison and Hentzelman surveys, and that a verdict should have been instructed in behalf of appellants. The Edward Hurst survey appears to have been the first of the Tobey scrip surveys located. This is the extreme west survey in Orange county, and according to the field notes, it lies eight miles east of the Neches river; its north line being the county line. Two pine bearing trees are called for at each corner, and, as before stated, this is a section one mile, or 1,900.8 varas, square. This survey was made on July 14, 1839. On November 19, 1839, the G.eorge Uhler section in Jasper county was surveyed by B. F. Mott, the same surveyor, and the field notes of this section calls for the same bearing trees on the county line for Uhler’s southwest and southeast corners as are called for in the Edward Hurst field notes for its northwest and northeast comers. The George Uhler field notes also call for two pine bearing trees at its northwest and northeast corners. In most, if not all, of the Tobey scrip surveys, bearing trees are called for at all comers. The field notes of the Edward Hurst survey calls for its location as eight miles east of the Neches Ever, while the patent of the George Uhler calls for its location as 13,325 varas east of the Neches river. All the maps introduced by both parties show the George Uhler to be located immediately north of the Edward Hurst. In April, 1876, Texas & New Orleans sections 81 and 82 were surveyed by James Ingalls, deputy surveyor for Jasper county. L. R. Scarborough was district surveyor. According to the field notes, Texas & New Orleans sections 81 and 82 lie immediately west of the Tobey scrip surveys, as these field notes call for the east line of Texas & New Orleans section 81 as being the west line of the Harrison and Hentzelman surveys, Texas & New Orleans section 82 calls to start, at the southwest corner of Texas & New Orleans section 81 on the west line of the Harrison survey, and runs south 405 varas, to the southwest comer of the Harris on, and thence south 2,726 varas to a stake on the west line of the Edward Hurst survey, with bearing trees definitely called for. The original field notes and the original maps of the land office and, of Jasper county show no vacancy between the Tobey scrip surveys and Texas & New Orleans sections 81 and 82. It is conceded that the southwest corner of Texas & New Orleans section 82 is definitely located. Roi Blake, a witness for appellees, being a surveyor and attorney, testified that the admitted southeast comer of Texas & New Orleans section 82 was in the west line of the Edward Hurst survey. All witnesses testified that there were evidences of old corners, in accordance with the contention of appellants, at all corners of the George Uhler sifrvey, and the south comers' of the Uhler were identical with the north comers of the Edward Hurst. The J. R. Thomas tract was a triangular piece of land out of the north part of the James Ryan tract, one of the Tobey scrip surveys. This tract was on the boundary line between Orange and Jasper counties, and the west corner of the Thomas, according to the contention of the appellants, is the southeast comer of the George W. Duncan, an adjoining survey on the east, to the George Uhler. There are evidences of an old corner at this place that supports the contention of appellants. There are other evidences of old lines, and from pieces taken out of trees, they indicate these lines , were made in 1839 when the Tobey scrip surveys were.made. We shall not attempt to go into the details of the evidence as to the proper location of these surveys.

Appellees introduced evidence showing some old lines and some old corners, which tended to support their contention. We also refer to the former opinion in this ease.

This court, in the former opinion, held that there was evidence to go to a jury and support a finding in favor of appellees. The writer was not a member of this court at the time of that decision. The majority of the court is of the opinion that the evidence on this issue was substantially the same as now before us on this appeal, and are of the opinion that there was a question for the jury as to a vacancy bétween the surveys above referred to. The writer is of the opinion that the overwhelming weight and preponderance of the evidence is in favor of the contentions of tha appellants, and that the trial court should have instructed a verdict in their favor. Bluffer v. State (Tex. Civ. App.) 31 S.W.(2d) 172. In deference to the former opinion, the court holds that there was an issue for the jury on this question.

On November 21, 1887, W. W. Blake, county surveyor of Jasper county, made a survey . of the 840 acres of land for W. H. Smith, as assignee, of a land certificate issued to Mrs. Eva Lancaster. The field notes of this survey makes the beginning corner start on the west line of the Samuel Hentzelman survey, at a stake 156 varas from the northwest corner, and runs south to a stake in the west line of the Uhler, 373 varas north of its southwest corner. This survey then runs west 785 varas to a stake in the east line of Texas & New Orleans section 82, this point being 373 varas north of the line between Jasper and Orange counties, and 994 varas north of the southeast corner of Texas & New Orleans section 82, and from this point runs north 5,171 varas and thence east 785 varas to the place of beginning. These field notes were duly filed and recorded in the county surveyor’s office of Jasper county, and also in the office of the land commissioner of the state of Texas. These field notes cover all of the land in controversy except a tract 373 varas by 785 varas immediately north of the county line, between the George Uhler survey .and Texas & New Orleans section 82, accoi’ding to theory of appellees. The evidence discloses that there was an attempt to float the Eva Lancaster certificate from this location to Ox'ange county, and that it was located in Orange county and a patent issued. The record of the land office and the maps there showed that the Eva Lancaster was in conflict with the Uhler, Harrison, and Hentzelman sui--veys. The appellants contend if there was a vacancy, the certificate in favor of Eva Lancaster, by l-eason of the survey and the filing of the field notes, was merged tato the land and it could not thereafter be legally floated. . Appellants own whatever rights were acquired under the Eva Lancaster certificate and location.

In Chaison v. Stark (Tex. Civ. App.) 29 S.W.(2d) 500, on page 504, Judge Walker, now Chief Justice of this court, said: “Under the law in force when the land in controversy was surveyed under Certificate No. 147, the only cause for which a certificate, when once filed on land, could be floated and located elsewhere, was upon a showing that the location was in conflict with an older title, and then only to the extent of such conflict. New York & T. Land Co. v. Thomson [83 Tex. 169, 17 S. W. 920], supra. Under these authoi’ities it is clear that any subsequent floating of this certificate, after a valid location, was illegal. So appellants’ proposition rests upon the legality of their survey.” While the Supreme Court reversed this court in the Ohaison Case, it did not disturb the statement of law above quoted.

Adams v. Railway Co., 70 Tex. 252, 7 S. W. 729; New York & T. Land Co. v. Thomson, 83 Tex. 169, 17 S. W. 920; and other cases ai’e in point and support the conclusion reached by this court in the Chaison v. Stark Case. Appellees’ say that these eases are not in point, as they arose under a prior statute,' and that an act of the Legislature approved on July 5, 1879, applies. This statute is found in Gammers Laws of Texas, volume 9, p. 52. We are of the opinion that this statute in no way changed the law with reference to floating land certificates after they had been located upon unappropriated public .domain.

Appellees further contend that even if this 1879 statute did not give them the right to float the certificate, the presumption would be that it was floated with legal authority, by reason of the long lapse of time. This court cannot indulge in presumptions that are contrary to the facts. The appellees, in the trial of this case, admitted in open court that at the time of survey of the Eva Lancaster, the land involved “was public domain subject to location within the meaning of the law, at the time the same was surveyed, by the field notes of the survey thei’eof.”

It is the opinion of all member’s of this court that the location under the Eva Lancaster survey appropriated all land tavolved in this suit in conflict with the W. J. B. Adams. The Adams survey was located and patented subsequent to the smwey of the Eva Lancaster. The Adams survey begins at the southwest comer of the’Uhler and runs noi’th 5,204 varás, taking in all vacant land, if there was a vacancy. This strip was 785 varas wide. •

It is our opinion that the judgment of the trial court should be revei’sed and rendered as to all the land in controversy except a tract at the south end of the W. J. B. Adams survey, 373 varas by 785 varas, not in conflict with the Eva Lancaster tract, and it is so ordered. It is further ordered that as to the last-mentioned tract, the judgment of the trial court is affirmed.

Affirmed in part, and reversed and rendered in part.