Kendrick v. Johnson , 173 S.W. 914 ( 1914 )

I am unable to agree with the majority in granting the motion for rehearing and reversing and rendering judgment in favor of appellant for the part of the land in controversy shown in the opinion of the majority on the motion for rehearing. I adhere to the conclusion reached by this court upon the original hearing that the judgment of the trial court should be affirmed for the reasons stated in the original opinion. The evidence shows without controversy that all the surveys in the 2900 block, consisting of about 40 sections, were located by the same surveyor, Baker, at the same time, all of which surveys were made subsequent to the surveys in the 700 block, and, were intended to be tied to said older surveys. The evidence further shows that some nine of the corners fixed by Baker of the sections in the 2900 block are now found upon the ground as indicated by natural and artificial objects, and there is no controversy as to the true location of these corners. These corners are the northwest corner of 2912, the southeast corner of 2917, the northeast corner of 2944, the northwest corner of 2936, the northwest corner of 2941, the northwest corner of 2938, the northwest corner of 2940, the northeast corner of 2950, and to the number so given may be added the southeast corner of 2914, which the majority agree is the original corner fixed by the surveyor who located that survey. All the calls for course and distance contained in the field notes of all the surveys in the 2900 block harmonize with those fixed and certain corners. As stated in the original opinion in this case:

"It is quite evident that Baker, in surveying the 2900 block, supposed the 700 block of surveys to be 317 varas farther north than they are actually found to be on the ground, thus causing a conflict."

From that conclusion it follows irresistibly that Baker, in surveying the 2900 block, did not find any corners of any surveys in the 700 block as located on the ground, and that in calling for the northeast corner of survey 737, which is also the southeast corner of 736, he did not go to such corner as fixed upon the ground, if it was then fixed upon the ground, by witness trees in the field notes of those surveys, but that he supposed it to be due west of the southeast corner of 2914, and called for the south boundary line of 2914 to run due west of its southeast corner without actually running it upon the ground, but intending that it should run due west for the distance given. Thus it clearly appears to the writer that Baker intended that the south boundary line of 2914 should run due west from its southeast corner to the point where he supposed the corner of 737 was located, which he never, in fact, found, and never tried to find, but which he supposed was located due west of where he located the southeast corner of 2914.

It is well settled that the rule which makes a call for course and distance inferior to those for natural and artificial objects is not an inflexible rule, but that the primary and controlling rule is that which will best enable the courts to ascertain the intention of the parties. To hold otherwise would be to give greater importance to the rule itself than to the reason of the rule, as was held in Robinson v. Doss,53 Tex. 496, and other authorities. In Baker v. Light, 80 Tex. 627,16 S.W. 330, it is said:

"When it can be ascertained which is the mistaken call, it will be rejected, and the other adopted as that expressive of the true intention of the parties."

This controlling rule applies with special force when it appears that no actual survey upon the ground was made. Numerous authorities might be cited in support of the propositions announced above, such as Luckett v. Scruggs, 73 Tex. 519, 11 S.W. 529; Sellman v. Sellman, 73 S.W. 48; Boon v. Hunter, 62 Tex. 582; Goodson v. Fitzgerald, 40 Tex. Civ. App. 619,90 S.W. 898; Jones v. Andrews, 62 Tex. 652; Jones v. Burgett, 46 Tex. 284; Linney v. Wood, 66 Tex. 22, 17 S.W. 244.

For the reasons indicated, the writer is of the opinion that the motion for rehearing should be overruled.