Opinion
No. 3383.
June 11, 1936. Rehearing Denied July 30, 1936.
Appeal from District Court, Pecos County; Chas. L. Klapproth, Judge.
Trepass to try title by the State against the Stanolind Oil Gas Company and others. From a judgment for defendants, plaintiff appeals.
Reversed and remanded, with directions.
This is an action of trespass to try title and to recover damages brought February 18, 1935, by the state of Texas seeking to recover a tract of land containing about 260 acres in the Yates oil field, Pecos county, and the value of oil taken from the land by the defendants. Upon an instructed verdict judgment was rendered for defendants. The issue is a boundary one. The state claims the lana as unsold public free school land. The defendants claim the land is a part of T. C. Ry. Co. surveys 101, 102, 103, and 104. In the alternative some of the defendants assert that if the area in controversy is not a part of said surveys, then it is embraced within the I. G. Yates survey 34 1/2, mentioned in Holmes v. Yates, 122 Tex. 428, 61 S.W.2d 771, and Miller v. Yates, 122 Tex. 435, 61 S.W.2d 767.
For a better understanding of the location of the land in dispute and surrounding surveys, we refer to maps appearing in the opinions rendered in Turner v. Smith, 122 Tex. 338, at pages 355, 356, 357, 61 S.W.2d 792, at pages 797, 798, 799. These maps do not indicate any vacancy between the T. C. Ry. Co. and Yates surveys.
See also map in Pandem Oil Corporation v. Goodrich (Tex.Civ.App.) 29 S.W.2d 877, at page 879.
The land sued for is described in the petition as follows:
"All of that certain area comprising about 300 acres of land, bounded on the North by the South lines of Surveys 101, 102, 103 and 104, T. C. Ry Co Surveys, Block 194; and bounded on the East by a southward projection of the East line of Survey 104 to its intersection with the North line of Survey 34 1/2; and bounded on the South by the most southerly North line of Survey 34 1/2 (I. G. Yates), Block 194; and bounded on the West by a southward extension of the West line of said Survey 101, T C Ry Co Surveys, extending southward from its South West corner to intersect with the said most southerly North line of said Survey 34 1/2; said area being further described by metes and hounds as follows:
"Beginning at a point on the ground, which is ascertained in the following manner: Begin at the S.E. corner of Survey 70, Block 1, I G N R R Co., an old mound of stone (in which a leaf from a car spring has recently been driven) on the West bank of the Pecos River, between two falls, or ripples, about 40 varas North Westerly from a bend in said bank, where two branches enter, one from the West and one from the South, the East edge of ledge of rock bears South 47 deg. East about 600 varas, a stone marked `N.W. 69,' in a mound of stone bears South, 1 1/2 deg. East 408 varas, a pipe set in mound of stone bears 88 deg. West 12.6 varas; thence West 4112 varas to a point; thence South 6121 varas to the beginning point of this tract, being the area herein sued for, same being the true S.W. corner of survey 101, Block 194, T C Ry Co., as patented.
"Thence East with the South lines of Surveys 101, 102, 103 and 104, T C Ry Co Surveys 7600 varas to the South East comer of Survey 104, for the North East corner of this tract; Thence South to a point in the North line of Survey 34 1/2, which point is 215 varas south and about 250 varas West of a stone mound on a flat rock marked `SE 104 DOD Oct. 15, 1918'; thence West with the most southerly North line of said Survey 34 1/2 for the South line of this area, to a point where the West line of said Survey 101 projected southward intersects with said North line of Survey 34 1/2; thence north to the place of beginning."
During the course of the trial plaintiff filed a trial amendment alleging: "In the alternative that if it be held that the southeast corner of Survey 70, Block 1, I G N R R Co be located on the ground at a point about 12 varas west from the old mound of stone in which a car spring has recently been driven, or at a point which is 50 varas west and 47.3 varas north from said old mound of stone in which a car spring has recently been driven, then the beginning point or northwest corner of the land here sued for should and may be ascertained by locating said beginning point at a point on the ground 4112 varas west and 6121 varas south from the point so held to be the southeast corner of said Survey 70. The description of the land sued for being otherwise identical with that set out in plaintiff's Fourth Amended Original Petition."
The mound of stone in which a car spring has recently been driven is hereinafter referred to as the car spring corner.
The N.E. corner of survey 69 in block 1, I. G. N. R. R. and the S.E. corner of survey 70 in said block is a common corner. The field notes of survey 69 describe it as "a stone mound on W. bank of Pecos River between two falls made for the upper cor. of this Sur. from which a forked Hackberry brs. West 9 vrs." It is the beginning corner of survey 70 and is described in the same way. The field notes of 70 place its S.W. corner 4,112 varas west of its S.E. corner. Block 1, I G. N. R. R., was surveyed in the latter part of 1876 by Jacob Kuechler. The surveys in this block are on the west bank of the Pecos river and are herein referred to as the River surveys. All were located under certificates issued to said railroad company except survey 545, which was located under a senior certificate issued to Torres Irrigation Manufacturing Company. It was inserted in the block in lieu of survey 66. Kuechler ran a traverse along the west bank of the Pecos river monumenting and identifying the corners on the river by bearing calls for natural objects. He platted in by protraction the north, west, and south lines of the surveys so as to give each survey 640 acres. The west lines uniformly call for 950 varas each. The field notes call for stake and mound at the west corners. The surveys are in the form of a stairway based upon the river. Kuechler's field notes were filed in the land office March 24, 1877. Corrected field notes for 545 by Thos. C. Nelson were filed in the land office February 24, 1882. Max Lungkwitz was the instrument man in Kuechler's surveying party and directed the actual work upon the ground. At the same time Kuechler surveyed another block for the I. G. N. R. R. on the east bank of the river directly opposite block 1. Field notes thereof were returned to the land office with plat showing the two blocks on the west and east banks of the river.
The plat shows a series of 1,280-acre rectangles bisected by the Pecos river. For the S.E. of survey 60 the field notes call for, "A stone mound marked IR on West bank of Pecos for the upper cor. Survey 59 THIS BLOCK." Northeast corner calls for "a stone mound marked IR on the West bank of Pecos River." For S.E. corner of survey 61 the field notes call for "stone mound marked IR on the west bank of Pecos River made for the upper cor. Sur. 60." And at its N.E. corner they call for "stone mound on West bank of Pecos, made for the upper corner of this survey, from which road on mesa bears North 19 1/2 West."
Kuechler ran his traverse from the north to the south, but in preparing the field notes of the surveys in block 1 he built one survey on the other northward making common corners of the northeast and southeast corners on the river.
According to the testimony of the defendants, Surveyors George and Zant, the original Kuechler S.E. corner of 70 is 47.3 varas north and 50.8 west of the car spring corner.
There is also some evidence tending to show that the original Kuechler S.E. corner of 70 is 12 varas west of the car spring corner.
Max Lungkwitz, the instrument man for Kuechler, and who actually ran the Kuechler line along the west bank of the river, testified they merely ran along the river bank, and Kuechler did the computations on the other lines; the south, west, and north lines being unmarked lines, never surveyed on the ground; that the stake and mound calls for the southwest and northwest corners of these surveys were fictitious or office calls; that they never marked any rocks with an "I.R."; that he personally checked the chains; the chainmen and the measurements were accurately taken and recorded.
Runnels County School Land survey No. 3 (hereinafter called survey No. 3) was located by office survey made by L. W. Durrell, deputy county surveyor of Pecos county. His original notes were made February 7, 1881, reciting the survey to contain 25,000,000 square varas. These field notes read:
"Beginning at the South West Corner of survey No. 70 made for the International Gt. Northern Railroad Co. on Pecos River in said County. Thence East 2494 varas to the North West Corner of Survey No. 69 made for the same Company.
"Thence South 950 varas to the South West Corner of said Survey 69. Thence East 1102 varas to the North West Corner of survey No. 68 for same Company. Thence South 950 varas to the South West Corner of said Survey No. 68. Thence East 658 varas to the North West Corner of Survey No. 67 for same Company. Thence South 950 varas to the South West Corner of said survey No. 67. Thence East 1910 varas to the North West Corner of survey No. 66 for said Company. Thence South 950 varas in the South West Corner of said survey No. 56 for a corner of this survey. Thence East 2177 varas to the North East Corner of survey No. 65 for same company for a corner of this survey. Thence South 950 varas to the South West corner of said survey No. 65 for a corner of this survey. Thence East 298 varas to the North West Corner of survey No. 64 for said Company. Thence South 290 varas to a pile of w. ch. in the East Line of survey No. 64 for South East Corner of this survey. Thence West 8637 varas to a rock mound for the South West Corner of this survey. Thence North 5040 varas to the place of beginning."
They were filed in the land office March 19, 1881, but were not approved. They bear the land office indorsement, "Cancelled by corrected field notes — contains 26105580 sq. vs. Mch. 28/81."
On June 8, 1882, Durrell made corrected field notes for the survey. They were filed in the land office April 19, 1883, upon which patent issued February 25, 1887. The corrected field notes read:
"Beginning at a stake and mound at the S.W. corner of Survey No. 70 made in name of the International and Great Northern Railway Co. for the North West corner of this survey;
"Thence East 2494 varas to stake and mound N.W. corner Survey No. 69. I and G. N. Ry. Co.;
"Thence South 950 varas to stake and mound S.W. corner said survey No. 69; Thence East 1102 varas to N.W. corner Survey No. 68 I. and G. N. Ry. Co.;
"Thence South 950 varas to a stake and mound S.W. corner said survey No. 68;
"Thence East 656 varas to stake and mound N.W. corner Survey No. 67 I. G. N. Ry. Co.;
"Thence South 950 varas to stake and mound S.W. corner said Survey No. 67;
"Thence East 1910 varas to stake and mound N.W. corner survey No. 66 I. G. N. Ry. Co.;
"Thence South 950 varas to stake and mound S.W. corner said survey No. 66;
"Thence East 2177 varas to stake and mound N.W. corner Survey No. 65, I. and G. N. Ry. Co.;
"Thence South 950 varas to stake and mound S.W. corner said survey No. 65;
"Thence East 298 varas to stake and mound;
"Thence South 162 varas to stake and mound for South East corner of this Survey;
"Thence West 8637 varas to a stake and mound for the South West corner of this survey;
"Thence North 4912 varas to the place of beginning."
Durrell testified that neither he nor anybody under him made any survey or investigation on the ground for the purpose of either set of field notes for survey No. 3; when he made these field notes he did not have acquaintance with or information as to the location on the ground of any of the surveys for which these field notes called; the official field notes of surveys in block 1 were the record information he had before him in drafting his field notes; all of his calls for stakes and mounds or piles of rock were fictitious calls; the calls in his field notes east and south from S.W. 65 were mere calculations to make survey No. 3 embrace only one league and no more, and the reason why the 290-vara call at the S.E. corner of his original field notes was reduced to 162 varas in the corrected field notes was to reduce the quantity of land to one league; he had no information that the west lines of the river surveys might be any longer than 950 varas each; when he made his original and corrected field notes, he thought each of the west lines of the river surveys was 950 varas long, because that was what Kuechler's notes called for; a plat returned by the witness to the land office in 1884, in connection with his survey of block 194, shows all he knew about the position of surveys in block 1 at the time he made the field notes for R. C. S. L. No. 3, as well as at the time he made the field notes of block 194. This plat, as well as the little sketch in the upper right-hand corner of Durrell's corrected field notes, pictures the east line of Runnels county school land in coincidence with the west lines of the river surveys.
The T. C. Ry. Co. surveys mentioned were located as one system of surveys by O. W. Williams, county surveyor, on February 16, 1887. The field notes for 101 call for it to begin "at a stake the S.W. corner of survey 3, R. C. S. L., for N.W. corner of this survey"; thence running east, south, west, and north 1,900 varas each way, without other adjoinder call.
The field notes for surveys 102, 103, and 104 call to begin at the N.E. corner of the preceding survey, running thence east, south, west, and north 1,900 varas each way without other adjoinder call. The field notes were not approved by the land office, and on September 16, 1892, Williams prepared corrected field notes which were filed in the land office March 3, 1893, and approved. Upon same 101 and 103 were patented April 14, 1894, and 104 August 7, 1929. Survey 102 has not been patented. The only difference in the two sets of field notes is that the lines running north and south were 1,209 varas instead of 1,900 varas, thus reducing the acreage of each survey from 640 to 407 acres. It was agreed Williams did not actually survey any of the lines of the four surveys, mark or monument them on the ground. This agreement, however, was without prejudice to any claim the plaintiff might make as to the relation of the surveys to any traverse run by Williams. This without prejudice limitation refers to survey in the field within block 1 made by Williams in September and November, 1892, in which he ran certain connecting lines on the ground reporting his traverse and findings to the land office April 7, 1894.
Beginning in the spring of 1917 and continuing through 1920, R. S. Dod, state surveyor, did a great deal of surveying in this vicinity. We refer to the opinions of this court and of the majority of the Supreme Court in Turner v. Smith, supra, as showing in part the scope of Dod's work and reports made by him to the land commissioner.
Dod was unable to identify any of the original Kuechler corners of the River survey between the S.E. corner of 70 and the S.E. corner of 61, marked by an I. R. rock which had been previously found by O. W. Williams. Between the corners mentioned Dod found an excess of 387 varas. According to the testimony of appellees' witnesses, Dod located the S.E. corner of 70 at the point 50 varas west and 47.3 varas north from the car spring corner. Under the instructions of the land commissioner, Dod gave to each of the nine sections between said corners an excess of 43 varas north and south and established and monumented the west corners of the River surveys in accordance with that plan. Under the instructions of the commissioner, he also gave the same proportionate distance excess to the east and west boundary lines of survey 3 conforming the east line of 3 to its adjoinder calls for the west corners of the River surveys. This excess plus the other distance calls gave the east and west lines of survey 3 a north and south distance of 5,127 varas. On January 17, 1920, Dod returned to the land office corrected field notes for 3 as so constructed.
On November 8, 1920, Dod returned corrected field notes of the I. G. Yates survey 34 1/2. This survey is located by Dod in harmony with his previous location of the south line of survey 3, and the four T. C. Ry. Co. surveys immediately south of survey 3. The corrected field notes of 34 1/2 upon which patent issued April 30, 1927, read:
"Beginning at a rock mound set for the N.W. corner of survey 62 Blk 1, in the name of the I G N Ry Co. on a ridge on the east side of a draw, one rock marked `N.W. 62',
"Thence East 500 varas to the S.W. corner of Sur 63 Blk 1;
"Thence North 993 varas to a rock mound in a draw set for the N.W. cor. sd. sur. 63, from which X on a rock bears S 40° 15' W. 82 varas;
"Thence East 511 varas to a rock mound on the east side of a rocky hill set for the S.W. cor. sur. 64 Blk. 1, from which Cap rock bears N. 80° 35' E, and a windmill bears N. 66° E.
"Thence North 993 varas to a stake set for the N.W. corner of sur. 64, from which the east point of Cap rock bears S 49° 30' E, a windmill bears N 80° 30' E;
"Thence West 57 varas to a point in the east line of sur. 3, Runnels County School Land;
"Thence South 162 varas to the S.E. corner sd. sur. 3,
"Thence West with the South line of sd. sur. 3, 1037 varas to the N.E. cor sur. 104, in the south line of sd. sur 3,
"Thence South with the east line of sd. sur. 104, 994 varas to a rock mound set on a flat rock marked by mistake `S.E. 104', on south 215 varas, 1209 varas in all to a point for the S.E. cor. sd. sur. 104;
"Thence West with the South line of surveys 104, 103, 102, 101, T. C. Ry. Co. 7600 varas to the S.W., cor. sd. sur 101, set 1209 varas south from the S.W. cor. sd. Runnels County sur. No. 3, for the N.W. corner of this survey;
"Thence South 604 varas to a point in the north line of sur. 37, Block 194, for the S.W. corner of this survey;
"Thence East with the north line of surveys 37, 36, 35, 34, Block 194, 7519 varas to the N.E. cor. sd. sur. 34, from which a rock mound bears west 358 varas, and a smaller rock mound bears west 407 varas, from which latter rock mound west edge of rim rock bears N. 21° 50' W, East edge rim rock bears N. 25° 30' E,
"Thence South 1004 varas with the east line of sd. sur 34 to a point in the north line of sur 61 Blk 1;
"Thence East 164 varas to a rock mound set on a ridge, from which west side of a gap bears S. 30° 30' W. Square block on rocky point bears N. 75° 57' W;
"Thence North 993 varas to the place of beginning."
In January, 1929, Guy R. Holcomb filed suit in the district court of Pecos county seeking mandamus to compel the county surveyor to make a survey pursuant to article 5323, R.S. The defendant in this case, I. G. Yates, was a party defendant in that suit. The effort of Holcomb was to pull apart River surveys 60 and 61 and establish an intervening vacancy. Holcomb's theory was that there was a distance excess between River surveys 61 and 43. This excess he sought to insert between 60 and 61 as unsold land. The state by its Attorney General intervened in the suit denying the existence of the vacancy. The interest of the state in the controversy was as follows: If the vacancy was established it would locate River survey 60 south of where it was located according to the Dod survey, and it would be in conflict with the I. G. Yates survey S. F. No. 12341, referred to in Turner v. Smith, supra. The Yates being the junior survey would, to the extent of the conflict, yield to 60. Oil well 30A, then producing 175,000 barrels of oil a day, was located a short distance south of the south line of survey 60 as said survey was located by Dod's survey above mentioned. Such well was within the boundaries of the Yates survey. But the well would be in senior survey 60 if 60 is located as Holcomb sought to do. In the River surveys the state had no mineral interest, whereas it did have such an interest in the Yates survey. So if Holcomb prevailed in his suit the state would lose its interest in oil well 30A. In that case the state alleged:
"That Block 1, I. G. N. Railroad Company Survey was put in as one system of surveys by Jacob Kuechler in 1876. Both the field notes and the patents for Sections 60 and 61, call for adjoinder and for an I. R. Rock on the bank of the Pecos River. * * *
"That the I. R. Rock called for at the Northeast corner of Section 60, Block 1, and the Southeast corner of Section 61 is still in place and is identifiable as one of the original corners of these two surveys at a point at which they are called to adjoin. That the field notes and patent for section 61 call for the same rock and describe it as being the northeast corner of section 60. That plaintiff himself recognized this I. R. rock as the Southeast corner of Section 61. That intervener does not believe that under the settled law of this state, under the circumstances involved in this case, that Sections 60 and 61, Block 1, I G N R. R. Company Survey can be split apart in such a manner as to place a vacancy in between these two sections as is attempted to be done by the plaintiff in his second amended original petition.
"III. That between the northeast corner of Section 43, Block 1, I G N R. R. Company Survey, which northeast corner of said Section 43 is known as the Galbes Bluff corner, proceeding north from this point along the succeeding sections in this survey that no corner of the succeeding surveys is identifiable on the ground, unless it be the corner commonly referred to as the Dry Creek Corner between Sections 55 and 543, until the common call contained in the field notes and patent for the northeast corner of Section 60 and the Southeast corner of Section 61, for an I. R. rock which is identifiable on the ground and is commonly known and referred to as the Red Barn corner. That the intervening surveys laid in between these two identifiable corners by the original surveyor was one piece of work, each of which surveys fronting on the river with one original corner found in the northern portion of said surveys and one in the southern portion of said surveys, with none of the intervening corners to be found; that an excess in distance exists between the fixed corners, and under the facts and circumstances herein that the state has a right to recover said excess between the fixed corners, and that the excess to which the state has a right to recover should be apportioned among the several intervening surveys. Intervener says that if any vacancy exists between Section 43 Block 1, I. G. N. R. R. Company Survey or the intervening sections up to and including Section 61, Block 1, I G N R. R. Company Survey that said vacancy does not exist between Sections 60 and 61 as alleged by the plaintiff herein. Intervener alleges, however, that a large excess exists between Sections 43 and 61, Block 1, I G N R R Company Survey and that such excess should be apportioned among the several intervening surveys. * * *"
The case was tried in November, 1933, and a jury found that the I. R. rock at S.E. 61 was a common corner fixed by Jacob Kuechler in 1876, for the S.E. corner of 61 and N.E. 60. Judgment was rendered that Holcomb take nothing and that there was no vacant, unsurveyed public free school land in block 1 I. G. N. R. R. surveys between the south line of 44 and the south line of 61, and that all the area in said block between the said lines of said surveys is a part of the said surveys lying between said lines as aforesaid and included therein.
From this judgment no appeal was taken.
The I. R. rock at S.E. corner of 61 referred to in the state's pleading in that case is the I. R. rock which the appellees in this case contend marks the original Kuechler S.E. corner of 61.
Mark McMahon, Gillis Johnson, and Warren Scarborough, all of Fort Worth, Hart Johnson, of Fort Stockton, William McCraw, Atty. Gen., H. Grady Chandler and Russell Rentfro, Asst. Attys. Gen., and Robt. L. Ball and Charles W. Trueheart, both of San Antonio, for the State.
R. E. Seagler and Lee M. Sharrar, both of Houston, Thompson, Mitchell, Thompson Young and Truman Post Young, all of St. Louis, Mo., Geo. T. Wilson and Robt. T. Neill, both of San Angelo, J. B. Dibrell, Jr., of Coleman, John Sayles, of Abilene, R. C. Gwilliam, of Tulsa, Okla., John Perkins, of Midland, Phillips, Trammell, Chizum, Estes Edwards and Hiner Pannill, all of Fort Worth, Thompson, Knight, Baker Harris, of Dallas, Vinson, Elkins, Sweeton Weems and C. E. Bryson, all of Houston, Walter L. Kimmel, of Tulsa, Okla., Turner, Rodgers Winn, of Dallas, Clay Tallman and Donald Campbell, both of Tulsa, Okla., and Smith Smith and Myron A. Smith, all of Fort Worth, of counsel, for appellees.
Gibbs Williams, of San Angelo, for Douglas Oil Co. on rehearing.
Wagstaff, Harwell, Wagstaff Douhit, of Abilene, for Geo. Theisen, amicus curiae, on rehearing.
Briefly stated, the theory of the state primarily is that the car spring corner is the original S.E. corner of River survey 70 as located by Kuechler; the S.W. corner of 70, which is the beginning corner of survey 3, is 4,112 varas west of the S.E. corner of 70. From this S.W. corner of 70, survey No. 3 is to be located according to the course and distance calls of its corrected field notes disregarding the calls for the N.W. and S.W. corners of River surveys 69, 68, 67, 545, and 65. Then the T. C. Ry. Co. surveys are to be connected with the south line of 3 and located according to the course and distance calls of their corrected field notes. This would place the south line of the T. C. Ry. Co. surveys 215 varas north of Yates 34 1/2 leaving intervening the land sued for. Wherefore the state was entitled to a peremptory charge in its favor.
Briefly stated, the theory of the defendants primarily is as follows: The calls in the field notes of 3 for said corners of said River surveys control the distance calls; the surveys in block 1 are a connected system of surveys made by the same surveyor; none of Kuechler's original corners upon the river can be identified except the common S.E. corner of 70 and N.E. corner of 69 on the north and on the south the N.E. corner of 60 and S.E. corner of 61, marked by an I. R. Rock, identified and established as the common corner of 60 and 61 in the Holcomb suit above mentioned. Between these two established corners there is an excess of 387 varas over the field note calls, which excess is to be prorated between the intervening surveys, which would give to the west lines of 69, 68, 67, 545, and 65, each an excess of 43 varas, thus placing the south lines of 3 and the T. C. Ry. Co. surveys 215 varas south of their location according to the state's theory; and embracing in the T. C. Ry. Co. surveys the alleged vacancy because the south line of the T. C. Ry. Co. surveys would then be coincident with the most southern north line of Yates 34 1/2. This theory assumes that Dod correctly located and marked the original N.W. and S.W. corners and west lines of surveys 61 to 69, inclusive.
An alternative theory of some of the defendants, as heretofore stated, is that if the area in controversy is not in the T. C. Ry. surveys, then it is in Yates survey 34 1/2.
For the disposition of the first two theories we assume as correct the appellant's contention that the car spring corner correctly marks the original S.E. corner of survey 70. For the same purpose we accept as correct the appellees' insistence that the original corners on the river between said corner of 70 and the S.E. corner of 61 and N.E. corner of 60 cannot be now identified upon the ground.
We also unconditionally hold the I. R. rock referred to in the evidence and the record in the Holcomb case marks the original common corner of surveys 61 and 60. The undisputed evidence so shows, and the judgment in the Holcomb case so adjudicated. The state was a party to that suit and is bound by its pleading in that case and the judgment which it sought and obtained so adjudicating such issue.
The undisputed evidence also shows that between the car spring corner and said I. R. rock there is an excess in distance over Kuechler's distance calls.
From the brief of one of the appellees we quote showing the surveyor, the year of his survey, and the excesses found:
"Surveyor: Year: Excess: O. W. Williams 1892 302 R. S. Dod 1917 190 R. S. Dod 1919 387 H. L. George 1934 330.7 J. B. Zant 1934 330.7 J. J. Goodfellow 1934 326 J. J. Goodfellow 1934 324.1"
We also unconditionally hold that block 1 is a system of connected surveys made by the same surveyor at the same time; the surveys being built one upon the other from the south to the north. In such situations the courts have adopted the rule of prorating the excess between the several intervening surveys. Turner v. Smith, supra, and cases there cited.
The facts render such rule applicable to this case.
It was in conformity with this rule that Dod, under the instructions of the land commissioner, established and monumented the N.W. and S.W. corners of the River surveys by apportioning to each survey an excess of 43 varas north and south in the length of their east and west boundary lines and returned corrected field notes. The excess apportionment was based upon his traverse made in 1919.
If appellees' theory is to be sustained, it must be held that the field note calls of survey 3 for stakes and mounds at said corners of surveys 65 to 69, inclusive, as a matter of law, prevail over and control the several 950 varas distance calls so as to extend the east and west lines of survey 3, 215 varas south of their distance calls.
Under the undisputed facts this should not be done, but the distance calls should prevail.
In Thatcher v. Matthews, 101 Tex. 122, 105 S.W. 317, a survey line was called to run from a marked corner a certain course and distance to a corner "on stake in prairie." The stake had disappeared. However, there was evidence tending to show where the stake was originally placed. Chief Justice Gaines held the stake was an artificial object; its mention could not be disregarded, and if the place where it was originally located could be established, it fixed the corner with the same certainty as if it had been marked by a permanent object and the variant distance call should yield to it. The ruling in that case does not apply here, for the stakes and mounds referred to in the Kuechler field notes of the River surveys as marking the N.W. and S.W. corners were fictitious calls. There were no such stakes and mounds so placed. Those corners were imaginary points. The testimony of Lungkwitz so shows, and it is so recognized by all parties. And, as later shown, the locations of those corners are uncertain.
Maddox v. Fenner, 79 Tex. 279, 15 S.W. 237, 239, is the leading case in this state upon the question of whether course and distance shall yield to a call for an unmarked line of another survey. Justice Henry said: "When unmarked lines of adjacent surveys are called for, and when, from the other calls of such adjacent surveys, the position of such unmarked lines can be ascertained with accuracy, and when, in the absence of all evidence as to how the survey was actually made, there arises a controversy as to whether course and distance or the unmarked line of another survey shall prevail, we see no good reason why the survey line should not be given the dignity of an `artificial object,' and prevail over course and distance." He also said, "Probably no general rule on the subject can be safely announced."
That case accords to an unmarked line the dignity of an "artificial object" entitling it to prevail over course and distance when it can be ascertained with accuracy. The subsequent authorities have recognized such limitation upon the dignity and controlling effect of an unmarked line.
In Braumiller v. Burke, 112 Tex. 387, 247 S.W. 501, 502, Judge German, answering certified question, said: "The rule that a call for an unmarked line of an adjacent survey is superior to call for course and distance is not a rule of absolute application, and a call for the line of an adjoining survey should not prevail over a call for distance, unless such line can be located with reasonable certainty and accuracy. Hermann v. Thomas (Tex.Civ.App.) 168 S.W. 1037; Polk County v. Stevens (Tex.Civ.App.) 143 S.W. 204; Crosby v. Stevenson (Tex.Civ.App.) 156 S.W. 1110."
This opinion was adopted by the Supreme Court.
In Hermann v. Thomas (Tex.Civ.App.) 168 S.W. 1037, 1048, this court held:
"It has been held that a call for course and distance should not be subordinated to a call for an unmarked line which could not, of itself, be ascertained, except by running course and distance from an established point. Gerald v. Freeman, 68 Tex. 201, 4 S.W. 256; Johnson v. Archibald, 78 Tex. 96, 14 S.W. 266, 22 Am.St.Rep. 27; Robertson v. Mooney, 1 Tex. Civ. App. 379, 21 S.W. 143.
"The leading case of Gerald v. Freeman, announcing this rule, however, has been subsequently explained, and the general rule thus announced somewhat limited, and it now seems to be the settled law that when the unmarked line of an adjacent survey is called for, and when from the other calls of such adjacent survey the position of such unmarked line can be ascertained with accuracy, and there is an absence of evidence as to how the survey was actually made, and there arises a controversy as to whether course and distance or the unmarked line of another survey shall prevail, there is no reason why the survey line should not be given the dignity of an artificial object and prevail over course and distance. Maddox v. Fenner, 79 Tex. 279, 15 S.W. 237; Wood v. Cahill, 21 Tex. Civ. App. 38, 50 S.W. 1071; Goodson v. Fitzgerald (Tex.Civ.App.) 135 S.W. 696; State v. Russell, 38 Tex. Civ. App. 13, 85 S.W. 288; Steusoff v. Jackson, 40 Tex. Civ. App. 328, 89 S.W. 445; Davis v. Baylor (Tex.Sup.) 19 S.W. 523; Langermann v. Nichols (Tex.Civ.App.) 32 S.W. 124; Coleman County v. Stewart (Tex.Civ.App.) 65 S.W. 383; Shindler v. Lutcher Moore Lumber Co. (Tex.Civ.App.) 107 S.W. 941; Baker v. Light, 80 Tex. 627, 16 S.W. 330. This doctrine was applied in the case of Thatcher v. Matthews, 101 Tex. 122, 105 S.W. 317, where there was a call for 13,400 varas to stake in prairie. The stake had disappeared. It was held to be an artificial object, and, if the place where it was originally located could be established, the call for distance should yield to it; and it was held proper to extend the line an additional 1,200 varas to reach the point where the stake has been originally located. To the same effect is Wm. M. Rice Institute v. Gieseke (Tex.Civ.App.) 154 S.W. 612.
"But we apprehend this rule does not apply, and a call for the line of an adjoining survey should not be permitted to prevail over a call for distance, unless such line itself can be located with reasonable accuracy and certainty. If the line of the adjoining survey so called for cannot be so located, it should be disregarded, and the terminus fixed according to the call for distance. Polk County v. Stevens (Tex.Civ.App.) 143 S.W. 204; Bigham v. McDowell, 69 Tex. 100, 7 S.W. 315. To do otherwise would be to accord to uncertainty precedence over that which is certain."
See, also, Polk County v. Stevens (Tex.Civ.App.) 143 S.W. 204; Stein v. Roberts (Tex.Civ.App.) 217 S.W. 166, and Taylor v. Higgins O. F. Co. (Tex.Civ.App.) 2 S.W.2d 288.
The ruling of this court in Turner v. Smith, giving controlling effect to adjoinder calls, was based upon Turner's assumption that the true location of the corners and lines called for could "be accurately and certainly determined." See Smith v. Turner (Tex.Civ.App.) 13 S.W.2d 152, at page 167.
In the case at bar the west lines of the River surveys were not actually run and the west corners established upon the ground by Kuechler. The undisputed evidence shows an excess in distance between the car spring corner and S.E. 61. But no two surveyors reach the same result except George and Zant, who surveyed together. The yariances are not great, but due to the westward trend of the river and some of its sharp meanderings these slight variances may affect very materially the location of the west corners and lines. The evidence in fact also leaves uncertain the exact original location of S.E. 70. The proration rule adopted by Dod and insisted upon by appellees as correctly locating the original corners on the west of the River surveys is based upon a rule of law. The rule is founded upon presumption. It is a rule of necessity when by no other means can lost corners and lines in a system of surveys be found. It cannot be said the rule in fact accurately and certainly located the lost corners on the west ends of the River surveys. It is impossible to determine where or how Kuechler's error in his distance calls occurred. He ran his traverse from north to south. He may have made no error in his calls from S.E. 70 to S.E. 65. His error may have occurred between S.E. 65 and the I. R. rock at S.E. 61. In that event the original corners on the west of 69, 68, 67, 545, and 65, are where Kuechler's distance calls place them, and not where the proration rule and Dod's survey places them. In order for the original corners on the west of the surveys last mentioned to have been located by Kuechler where the proration rule and Dod's survey places them, Kuechler must have made a uniform error of 43 varas north and south in the measurement of the east line of each survey between 70 and 60. It is unreasonable to assume such a uniform error. Or it must be assumed Kuechler deliberately gave each of the intervening surveys an excess north and south of 43 varas. Such presumption will not be indulged, and it is refuted by Lungkwitz's testimony that he checked the chains and the chainmen and the measurements were accurately taken and recorded.
We hold there is not that certainty in the true location of the west corners and lines of the River surveys which give them the dignity of artificial objects entitling the adjoinder calls in the field notes of survey 3 to prevail over the distance calls.
In this connection there is this further situation with respect to which the majority opinion in Turner v. Smith is controlling: In constructing the field notes of survey 3, Durrell did not actually know the ground location of the west corners and lines of the River surveys. He assumed they were located where Kuechler's field notes placed them. It was Durrell's purpose to locate survey 3 so as to embrace one league (25,000,000 square varas) of land and no more. The S.W. corner of 69, and N.W. and S.W. corners of 68, 67, 545, and 65, as located by Dod, are not in the positions Durrell supposed those corners to be. The S.W. corner of 65, for example, is 215 varas south of and some distance east of where Durrell supposed it to be. Such distance variances also places the positions of the west lines of 68, 67, 545, and 65 at positions different from where they were supposed to be by Durrell.
In this situation the ruling of the majority of the Supreme Court in Turner v. Smith, supra, which this court must follow, controls. We refer to those portions of Justice Pierson's opinion where he said:
"From the sketch which Durrell returned with his field notes in January, 1884, it is obvious that he was mistaken as to the true position of the Pecos river and of the river surveys. His sketch shows a distant break in the river between survey 540, block 12, and survey 72, block 1, indicating that he called for the river surveys without knowledge of their true positions. It is an elementary principle of boundary law that a supposititious call, made upon an erroneous belief as to the location of an object, will not prevail over a call for course and distance, whether the survey was actually made upon the ground or was an office survey. 7 Tex.Jurisprudence, pp. 171, 172; New York T. Land Co. v. Thomson, 83 Tex. 169, 17 S.W. 920; Findlay v. State (Tex.Civ.App.) 238 S.W. 956; Holdsworth v. Gates, 50 Tex. Civ. App. 347, 110 S.W. 537.
"As to the surveys in block 178 for which Durrell called to adjoin on the south, his own testimony in this case, as well as his sketch and field notes, demonstrate that he did not know their true positions, but called for them merely by conjecture. As before stated, the rule is well established that a call for adjoinder with an unmarked line made upon misapprehension, mistake, or conjecture will be disregarded, and the junior survey located according to course and distance from the nearest established corners, and this is true, regardless of whether the entire junior survey was actually run out on the ground, or was wholly or in part an office survey. (See authorities cited, supra.)"
Appellees question the soundness of the majority ruling in Turner v. Smith. That is a question upon which this court cannot sit in judgment. The Supreme Court overruled this court in the case. It is the duty of this court to follow the ruling of the Supreme Court majority. We, therefore, for the reasons stated, hold survey 3 is to be located by its course and distance calls from its beginning corner, disregarding the calls for N.W. and S.W. corners of 69 to 65, inclusive.
We have not undertaken to review and differentiate the numerous boundary cases relied upon by the respective parties. The different conclusions reached in various cases merely demonstrate the soundness of Judge Henry's remark in Maddox v. Fenner, that no general rule upon the subject can safely be announced.
Appellees also assert that if the adjoinder calls, under the ordinary rules of boundary, do not prevail over the distance calls, then by virtue of an act approved and effective March 21, 1883 (9 Gammel's Laws, 334, 335) and carried forward into the codification of 1895 as article 4269, the calls in survey 3 for the corners of surveys 65 to 69, inclusive, are to be given controlling effect.
In this connection and as supporting this theory, see Steward v. Coleman County, 95 Tex. 445, 67 S.W. 1016; Cross v. Wilkinson, 111 Tex. 311, 234 S.W. 68; and Lewright v. Travis County, 54 Tex. Civ. App. 540, 118 S.W. 725.
The act mentioned reads:
"An Act to Validate Certain Surveys, heretofore Informally or Defectively made in Locating the County School Lands of this State.
"That the surveys of all county school lands heretofore made, either actually on the ground or by protraction, and returned into the General Land Office, according to law, and upon which patents have been issued, are hereby declared valid surveys, and the title to the lands included within the lines of said surveys, as returned to the General Land Office, is hereby vested in the counties for which the same were made; and in all such surveys the call for distance shall have precedence and control calls for rivers or natural objects, when the calls for distance will give the quantity of land intended to be included in the survey, and the calls for natural objects or rivers will not; provided, this act shall not divest any vested right."
The act was retrospective in its operation. The language of the caption and the body of the act itself so implies. Survey 3 was not patented until subsequent to the passage of the act for which reason the survey is not within the operation of the original act. This view renders it unnecessary to decide whether the act is invalid because the boundary rules therein declared were not authorized by the caption.
Nor could the re-enactment of the act by its incorporation in the codification of 1895 render it applicable to survey 3, because in the meantime there had intervened and vested the rights of the owners of T. C. Ry. surveys 101 and 103 and the public free schools as the owner of surveys 102 and 104. Those surveys had been located previous to 1895, south of and adjoining survey 3 as the latter had been located under the ordinary rules of boundary. The vested rights of the owners of the T. C. Ry. surveys could not be divested by shifting such surveys southward 215 varas through the reenactment in 1895.
The boundary issue here involved is unaffected by the law in question.
The alternative theory of some of the appellees that if the area in controversy is not in the T. C. survey it is in Yates 34 1/2 must be overruled under the decision of the majority of the Supreme Court in Turner v. Smith, supra. With respect to that theory the facts here present an analogous situation. Under the majority ruling it must be held that the lower north line of 34 1/2 is located by Dod's field notes where the state contends it to be; that the calls in such field notes for surveys 101 to 104 must be construed as calls for said surveys in the position which Dod, under the instructions of the land commissioner, had erroneously assumed them to be; or else such calls must be rejected as mistaken ones.
Appellees submit various other propositions, unrelated to boundary law, in support of the judgment rendered. Such propositions are based upon the law of estoppel in pais and by judgment, stare decisis, ratification, the rights of bona fide purchasers for value, etc. These various propositions have been fully and carefully considered. They are regarded as presenting no ground for affirmance and unnecessary to discuss. Discussion thereof would unnecessarily lengthen this opinion now too long. Suffice it to say the proper disposition of this case is controlled by the law of boundaries. The only fact issue necessary to be determined in the disposition of the boundary issue is the true location of the S.E. corner of survey 70 as it was established by Kuechler. Such location is an issue of fact raised by the evidence.
The judgment is reversed, and the cause remanded, with instructions to hear evidence and determine the location of the S.E. corner of survey 70, as it was located by Kuechler, and render judgment in conformity with such location and this opinion. The court will also hear evidence upon the issue of damages and render judgment accordingly.
The order of dismissal as to Simms Oil Company, entered upon motion of plaintiff, is not disturbed by the judgment of this court.
Upon the submission of the appeal Justice WALTHALL was ill and unable to hear the argument. He, therefore, has not participated in this decision.
Reversed and remanded, with instructions.
On Rehearing.
In the opinion it is said: "According to the testimony of appellees' witnesses Dod located the S.E. corner of 70 at the point 50 varas west and 47.3 varas north from the car spring corner."
This is corrected so as to read: "According to the testimony of appellees' witnesses, Dod located the S.E. corner of 70 at the car spring corner, or at a point about 12 varas west of said car spring corner."
With this correction, all motions upon rehearing are overruled.