Griffin v. Roe , 2 Posey 511 ( 1881 )

Opinion.— To better understand the case we will give field-notes of the land'and adjoining surveys.

In the patent for the Freeman survey no marked corners are given. Its calls begin at Bank’s S. W. corner and the Haught FT. W. corner; thence S. to Haught’s S. W. corner; thence west to John Denton’s 8. E. corner; thence FT. to William Rowe’s 8. W. corner, and thence to beginning.

The Rowe patent describes his boundaries as beginning at Haught’s H. W. corner and Bank’s S. W. corner; thence FT.' with Bank’s west line 1,900 varas to a stake, from which a hackberry bears 8. 79 W. 31-6-10; thence W. 1,900 varas to a stake on Valentine’s east line, from which an elm bears H. 36 deg. E. 6¿ varas; thence 8. 1,900 varas to a stake 90 varas north of Valentine’s east corner; thence east to the place of beginning.

This Valentine’s east corner is “a stake in Duck Creek bottom; from said stake a red haw, 6 inches in diameter, bears 8. 26 deg. W. 3-J- varas, and a hackberry bears FT. 25 deg. E. 3-J- varas, and from thence north Duck Creek at 400 varas, 8 varas wide.”

The Haught survey, the FT. W. corner of which is the beginning corner of both the Freeman and Rowe surveys, has corners indicated by stakes and bearing trees. The FT. W. corner is a stake in the prairie. From said stake an elm, 5 inches in diameter, bears FT. 5-j¡ deg. E. 56 varas.

How the thing to be determined being the proper location of the lower line of the Rowe survey, in these field-notes there are objects from which, if they still can be found, it can be fixed with accuracy. It is a direct line running west from the southwest corner of the Bank’s survey, and east from a point ninety varas north of Valentine’s corner. Obviously it can be- ascertained with accuracy running one way as well as the other. It is as legal and certain a rule by which to fix it to run from the western end to the eastern end of the line, as the reverse method. The beginning corner in the field-notes is of no higher dignity or importance than any other corner of the survey. The order in which the surveyor gives the lines and corners in his certificate of the survey is of no importance to find the true position of the survey. Reversing the course is as lawful and persuasive as following the order of the certificate. Phillips v. Ayers, 45 Tex., 607. If at the eastern end of the line, the corner called for in the patent had been obliterated by time, and that at the western end remained and could be found, the true position of the line and of the eastern corner could be determined by running the line the proper course and distance from that point.

It was error, therefore, to charge the jury as the court did, “to determine from the evidence where the corner of the Haught survey is, and run from that corner; ” and again, “ if the beginning point of both surveys is the same and can be ascertained in connection with the' ancient landmarks surrounding, made by the original surveyor, it will control.” The effect of this instruction, taken in connection with other portions of the charge, was evidently to mislead the jury. The verdict is manifestly against the evidence.

Reversed and remanded.