Kyle v. Clinkscales , 22 S.W.2d 729 ( 1929 )

In 1915 R. B. Brown and wife subdivided a 200-acre tract of land out of the Deaton survey in Hill county, Tex., into five separate tracts, containing 40 acres each. Said tracts were numbered from 1 to 5, and each corner of the respective tracts was marked with an iron pin. The south line of the three south subdivisions constitute the south line of the Deaton survey. The five subdivisions are shown by the following plat:

[EDITORS' NOTE: MAP IS ELECTRONICALLY NON-TRANSFERRABLE.]

Subdivision 5 was conveyed to Ida Brown Darden. Subdivision 4 was conveyed to Underwood, and by him to appellee, who also purchased subdivision 3. After appellee became the owner of subdivisions 3 and 4, he removed the iron spikes which had been originally placed at the division corners between said subdivisions when the land was subdivided, and continued thereafter to own and cultivate same for about six years. On February 5, 1927, appellee made a contract with appellant, under the terms of which he sold and agreed to convey to appellant the 40 acres of land which had been sold by Underwood to appellee, and at the same time executed a deed to said property, which was put in escrow, to be delivered about January 1, 1928, on the payment by appellant of the consideration therein stated. The contract of sale provides:

"It is hereby expressly agreed that the said A. O. Clinkscales will at his own expense have said land measured and staked at the corners, so that he will deliver to said Kyle under this contract 40 acres of land."

On December 6, 1927, appellee employed J. F. Wright, the county surveyor, to go upon the land and make a survey thereof and establish and mark the corners of the tract of land as provided by the contract. The iron stakes between subdivisions 4 and 5 as originally placed when the entire tract of land was subdivided were in place and were recognized by all parties as the established corners of said subdivisions 4 and 5. Appellant was with appellee and the surveyor at said time, and assisted in running the lines and establishing the corners between subdivisions 3 and 4. The surveyor did establish the corners between said subdivisions 3 and 4, so that subdivision 4, being the tract conveyed to appellant, contained 40 acres of land, and iron pins were driven down at said corners. After the corners were thus established, the deed was thereafter, on December 28, 1927, by appellee delivered to, and accepted by, appellant.

On August 23, 1928, appellant filed this suit in trespass to try title, which, however, is in effect a boundary suit, seeking to establish the line between subdivisions 3 and 4; his contention being that the line between said subdivisions should be about 8 or 10 varas further east than where the iron stakes were placed by the county surveyor, Wright. The deed from appellee to appellant described the property by the same metes and bounds as those contained in the deed from Underwood to appellee, and were as follows:

"Being a part of the Deaton Survey in Hill County, beginning at the southwest corner of a tract of 40 acres conveyed by R. B. Brown and wife to R. F. and W. W. Siddons, which corner stands in the south line of said Deaton Survey, 306 2/3 vrs. S. 60 W. from the southeast corner of said survey; thence N. 30 W. with the west line of the said Siddons tract 732.6 vrs. to its northwest corner; thence S. 60 W. 306 2/3 vrs. to a stake for corner; thence S. 30 E. with the east line of a 40 acre tract conveyed by R. B. Brown and wife to Ida Brown Derden, 732.5 vrs. to a stake in the south line of said Deaton Survey; thence N. 60 E. with the said south line 306 2/3 vrs. to the place of beginning, containing 40 acres of land."

The cause was submitted to a jury on one special issue, and in response thereto the jury found that the parties agreed that the two stakes separating lots 4 and 5 should be the west boundary line of the 40 acres purchased by appellant from appellee. No other issue was requested, except appellant asked for a peremptory instruction.

Appellant's sole contention is that, since the deed recites that the beginning corner of his land was located 306 2/3 varas from the southeast corner of the Deaton survey, regardless of any and all other calls, it should begin at said point, and that neither oral nor written testimony was admissible to show that same was not the true location of the southeast corner of the tract which he purchased from appellee.

Appellee contends that, since the iron stakes which marked the corners of the land between subdivisions 4 and 5 as originally made were on the land, and that since the jury found all parties recognized same as the true corners between said subdivisions 5 and 4, and since the iron pipe which had marked the corners between subdivisions 3 and 4 had been obliterated, the true boundary line between subdivisions 3 and 4 was properly ascertained by beginning at the recognized and accepted corners of the land between subdivisions 4 and 5, and running thence N. 60 E. with the south line of the Deaton survey 306 2/3 varas to the place of beginning, as called for in appellant's deed; appellee's contention being that said last call placed and fixed the beginning place of appellant's land at a point 306 2/3 varas N. 60 E. from the positively identified stake on the west line of subdivision 4 and east line of subdivision 5, known as the Derden tract. Appellee further contends that the line and corners as fixed and marked by the county surveyor between subdivisions 4 and 3 were by all parties at said time accepted as the true boundary line between said subdivisions.

The universal test in fixing a boundary line is, first, natural objects, such as rivers, trees, and other objects of nature; second, artificial marks that were placed on the ground by the surveyor; and, third, course and distance. Stafford v. King, 30 Tex. 257,94 Am.Dec. 304; Phillips v. Ayres, 45 Tex. 601. Another cardinal rule is that, where there are descriptive or directory calls, same will yield to locative calls where the locative objects are actually found. Hamilton v. Blackburn, 43 Tex. Civ. App. 153, 95 S.W. 1094. Another cardinal rule is that the beginning corner of a survey or plat is of no higher dignity than any other corner of the survey, and the field notes of a tract of land may be constructed from any corner found on the ground, regardless of whether it is the beginning corner as called for in the survey. Cox v. Finks (Tex.Civ.App.) 41 S.W. 95; Crosby v. Stevenson (Tex.Civ.App.)156 S.W. 1110; Phillips v. Ayres, supra; Kennard v. Maxwell (Tex.Civ.App.) 287 S.W. 60; Taft v. Ward, 58 Tex. Civ. App. 259,124 S.W. 437; Ramseaur v. Ball, 59 Tex. Civ. App. 285, 125 S.W. 590. Another cardinal rule in establishing boundary lines is that calls for course and distance always yield to natural or artificial locative calls when same can be definitely and surely found upon the survey. Duren v. Presberry, 25 Tex. 513; Kennard v. Maxwell, supra; Hamilton v. Blackburn, supra. Another cardinal rule is that, where a corner of a survey or tract of land is established, and the location thereof as made by the surveyor is positively identified, same will control and take precedence over course and distance from the corner or lines of other or adjoining surveys, and same must, when conflicts arise between said calls, yield to the established corner as fixed by the surveyor. Stafford v. King, 30 Tex. 257, 94 Am.Dec. 304; Hays v. Clawson (Tex.Civ.App.)286 S.W. 857.

With the foregoing recognized rules for construction, it appears to us that appellant's contention that his corner must begin 306 2/3 varas from the southeast corner of the Deaton survey cannot be sustained. The deed to appellant states that the land being conveyed to him begins at the southwest corner of the Siddons 40 acres, and that said corner is 306 2/3 varas from the southeast corner of the Deaton survey. If said point is accepted as said corner, then the field notes called for in appellant's deed would not reach either of the established corners on the west side of appellant's land. On the other hand, if the southeast corner of appellant's land is located where the county surveyor, Wright, established same, then the field notes called for in appellant's deed will exactly tally with and tie on to subdivision 5 on the west. If the iron pipe at the southwest corner of subdivision 4 and the southeast corner of subdivision 5 is taken as the beginning point of the survey, then unquestionably, from the record, the county surveyor, Mr. Wright, correctly located the southeast corner of appellant's land, and correctly established the boundary line between subdivisions 3 and 4. We think the last call in appellant's deed which places his southeast corner at a point N. 60 E. from the stake in southeast corner of the Derden tract is of as much probative force as the first call in said deed that said corner is S. 60 W. from the Deaton southeast corner. Our courts have from the early decisions held that a call locating the beginning point of a tract of land as being a certain named distance from another survey was a descriptive call, and that said descriptive call must, when in conflict with other known locative calls found on the survey, yield thereto. Under facts very similar to the contention of appellant herein the courts have held against appellant's contention. Duren v. Presberry, 25 Tex. 513; Stafford v. King, 30 Tex. 257, 94 Am.Dec. 304; Phillips v. Ayres,45 Tex. 601; Kennard v. Maxwell (Tex.Civ.App.) 287 S.W. 60. There was no effort made to show where the iron pipes that marked the line between subdivisions 3 and 4 were placed at the time the land was originally subdivided. Neither was it shown that the surveyor began at the southeast corner of the Deaton survey in making said original subdivisions. No effort was made to show the southwest corner of the Siddons tract, except by running the course and distance, 306 2/3 varas S. 60 W. from the southeast corner of the Deaton survey. We think the descriptive calls contained in appellant's deed that his tract would begin at the southwest corner of the Siddons tract, a point 306 2/3 varas from the southeast corner of the Deaton survey must and should yield to the established locative iron pipe recognized as the southwest corner of said subdivision 4 and southeast corner of subdivision 5.

We further agree with appellee's contention that appellant is bound by the agreement found by the jury to have been made by him and appellee just a short time prior to the time he accepted the deed, to the effect that the iron stake as located between subdivisions 4 and 5 was the recognized west boundary line of the land sold by appellee to appellant. The courts hold that, where there is a disputed boundary line, the parties at interest may by agreement establish said line, and same will be binding upon all who were parties to said agreement. Lecomte v. Toudouze, 82 Tex. 208, 17 S.W. 1047,27 Am. St. Rep. 870; Harn v. Smith, 79 Tex. 310, 15 S.W. 240, 241, 23 Am. St. Rep. 340; Hill v. Walker (Tex.Civ.App.) 140 S.W. 1159. The jury found that appellee and appellant agreed at the time the county surveyor, Wright, established the line between subdivisions 3 and 4 in December, 1927, and placed the stakes at the corners between said subdivisions, that they would accept the west line of appellant's tract as beginning at the iron pipes locating the line between subdivisions 4 and 5. If said iron stakes do mark appellant's west line, then, under the undisputed facts, the judgment of the trial court awarded appellant the 40 acres of land which he actually purchased from appellee.

The record shows without dispute that just a short time before appellant accepted the deed to the land he purchased from appellee, and before he paid the purchase price therefor, he, together with appellant and the county surveyor, went upon the land for the sole purpose of establishing the boundary lines and marking the corners thereof, and, after same had been established and the corners marked, with full knowledge of the actual location of the corners as made by the surveyor, appellant then accepted the deed and paid the consideration therefor. Appellant has been awarded 40 acres of land, the amount called for in his deed. We think, under the facts in this case, the east boundary line thereof was correctly established by the county surveyor, Wright. If we are in error in this holding, we think appellant was bound by the agreement which the jury found he and appellee made just prior to the time he received and accepted his deed, which fixed the west boundary of appellant's land at the stake marking the line between subdivisions 4 and 5.

The judgment of the trial court is affirmed.