Sanborn v. Gunter Munson , 84 Tex. 273 ( 1891 )

Not being able to concur with the majority in some of the rulings made in this case, I deem it proper to state some of the grounds of my nonconcurrence.

I do not understand the holding to be, that the field notes returned into the General Land Office for the Houston Texas Central Railway Company were void because not based on an actual survey of each of the four lines of every section embraced in the block. If such were the holding, it would be useless to refer to decisions made under laws in force prior to the adoption of the Revised Statutes for the purpose of showing that the rulings of this court have in all preceding cases been to the contrary. These decisions are well known to the profession, and to establish a different rule now would be attended with consequences so disastrous to the public welfare, peace of society, and private rights, that no court would be authorized to do so, even if originally such a rule might have been more in harmony with the statutes.

The District Court held, "that the northeast corner of section No. 1 being the only point called for in the railway company's original location that can be identified on the ground, this block of surveys must be located by running west from this point and tying each succeeding survey to the one preceding it; and that the only way to do this is to cross the river at 109 and locate the succeeding sections from three to five miles north of the river, and as thus located no part of the land in controversy would be included. I conclude that if it were possible to locate on the ground any point called for in the field notes of 109 so as to give it the river for its north line, it would be necessary so to locate it from such point; but it being impossible to do this, as shown by the findings of fact, the remainder of this tract must be located as above set forth."

I understand the ruling in this court to be, not that any of the surveys are void either for uncertainty of description or illegality, but that their true locations must be fixed as were they in the District Court — that the call for front on the river must be disregarded and the several surveys located in accordance with their calls for connections with each other. My mind does not assent to this proposition, nor to the proposition that it is impossible "to locate on the ground any point called for in the field notes of 109 so as to give it the river for its north line."

The question then becomes one of locality; and it is freely conceded, that if the field notes under which appellants claim do not place the land claimed by them on the south bank of the Canadian River, when construed as the law requires them to be, then appellants have no rights in any of the lands claimed by appellees.

That the question involved may be fully understood, a sketch is here given, showing by the blue line the Canadian River with its meanders as they were supposed to be, and with reference to which the field notes of every section from No. 1 to No. 158 inclusive were made for the railway company. The red line shows the river with its meanders as they are shown actually to be by a subsequent survey. This sketch is correct in all respects in so far as it shows the supposed and true general course and meanders of the river, and the relation of the several surveys to it, if they be placed on its south bank.

I also attach another sketch, which will show on a larger scale that part of the river on which it is claimed the break was made between surveys 108 and 109, the surveys as they were represented on the river by field notes and map under the original surveys, and the line of the river as it was then understood to run. The latter is marked in blue. This sketch also represents, with the red line, the river with its meanders as determined by subsequent survey, and the several surveys thereon from 90 to 114, as they were established by accurate resurvey.

The point at which survey No. 1 began is established on the ground, and was at the time the field notes were made out; but no corner of any succeeding survey was actually established. Each succeeding survey as they extended westward and up the river called for the survey just below it, and to front 950 varas "on the south bank of the Canadian River." The side lines of each survey called to run north and south, and the back lines east and west. Each survey was for a section of land, the alternates being for the school fund, and the front given on the river was as required by the statute.

It is not denied that the field notes of the several surveys from No. 1 to 108 are in all material respects correct, and this will be seen to be true from inspection of the sketch already given; but it is claimed that the last named survey according to its calls will cross the river, and that all following it westward must preserve their connections with it, and thus follow to the north side of the river.

The land in controversy begins at survey No. 120, as shown on the sketch, and extends up the river and westward; and from this it will be seen that the true position of survey No. 109 only becomes important to determine the true position of the surveys above it. If that survey is on the north side of the Canadian River, the same facts which place it there will place all the block of surveys west of it on the same side of the river; and in that event the judgment is right. It seems to be conceded, that if that survey is on the south bank of the Canadian River, the surveys for the railway company west of it can and must be located on that bank, and follow each other in the order of their numbers. In the latter event the judgment is erroneous.

The first inquiry arising is, Do the field notes made for the railway company, each one successively calling for the one below it as they proceed westward, furnish data from which the true location of survey No. 109 as well as every other one of the surveys may be fixed with certainty on the south bank of the Canadian River? With a view to this inquiry, it will be assumed for the present that the call of every one of the 158 surveys to front "on the south bank of the Canadian River" can not be entirely disregarded. The original course of the Canadian River, as will be seen from the sketch, is northeasterly. All the side lines of the surveys call to run north and south and the back lines east and west. The sum of the westings from the lower corner of the survey No. 1 to the upper line of survey No. 158 will give the length of the line run due west from the lower corner of survey No. 1 on the river, from the western terminus of which line a line run due south to the south bank of the Canadian River will give with mathematical certainty the upper corner on that river of survey No. 158. A repetition of this process at every 950 varas westward from the lower corner of survey No. 1 will give a common corner of two surveys until the upper corner of survey No. 158 is reached. This is illustrated on the preceding sketch, from which it will be seen that a line due south from a point 102,600 varas west from the lower corner on the river of survey No. 1, where it touches the south bank of the Canadian River, will fix the lower corner of survey 109. Thus will be established the upper corner, on the south bank of the river, of survey No. 158. The westings to upper corner of No. 158 from lower corner of No. 1 must be 950x158=150,100 varas; to upper corner of No. 109 must be 950x 109=102,600 varas. To controvert these propositions is to deny a mathematical truth.

It will then be assumed, that from the field notes it can be ascertained at what point on the south bank of the Canadian River the corners of any one of the 158 surveys are to be placed, if it be lawful to place the upper corners of each survey on that bank of the river under the facts found in the record.

Do the facts require the upper corners of all the tracts for which field notes were made for the railway company to be placed on the south bank of the Canadian River? The field notes say so; but it is held that they must be disregarded in this respect, while effect is given to them in others. The findings of fact by the court below necessary now to be considered consist to some extent of conclusions of law; but so far as they deal with fact, do they justify the legal conclusion reached? The finding was, that "the surveys from 1 to 108 inclusive can be located without any great variation from the field notes returned by Maddox as above, although in no case except section No. 1 would such field notes be strictly correct, and in a great number of surveys the meanders of the river and length of east and west lines would have to be radically changed; but when 109 is reached, owing to a sudden bend in the river to the south, and in some cases a little southeast of south, it is impossible to connect this section with section No. 108 without placing it in and on the opposite side of the river, and it is impossible to locate 109 so as to make the river its north line without dropping from two and one-half to three miles south of the south line of 108, where the river again turns west, and there make a new beginning with nothing to locate it by, and all surveys west of this would be dependent upon this new beginning point. The land in controversy in this suit commences at 120 as it would be thus located and runs west with the surveys as they would be located by the Maddox field notes calling for 108, as above set forth."

I fully concur with the proposition that it is impossible to connect section 109 with section 108 without placing section 109 on the north side of the Canadian River; and go further, conceding that it can not be legally connected with that section at all, for the simple reason that section 108 can not cross the Canadian River, that being a navigable stream within the meaning of the law. But it does not follow because such a connection can not be made that section 109 and all other sections west of it may not, under the facts, be made to front on the south bank of the Canadian River, just as the field notes declare they do. I further concede, that it is impossible to locate section 109 so as to make the river its north boundary without dropping from two and a half to three miles south of the south line of 108 to a point where the river again turns west, if we wish to get 640 acres in the survey, and to surrender the land above the point where the river again turns abruptly to the west, looking toward its source; but I do not see that this affects the question to be decided, unless it be the law, as held by the court below and by this court, that the location of the surveys must depend on their successive connections and on their back lines, disregarding the calls to front on the river. The proposition, however, that what in the finding is said would be a new beginning corner, if section 109 be made to front on the south bank of the river, would have nothing on which to base its location at that place, is not conceded; for, as we have before seen, it can be so located with absolute certainty unless facts hereafter to be referred to forbid this.

It seems to be conceded, if any survey made for the railway company above the point where the river, looking downward, makes the abrupt bend to the north, can be fixed on the south bank of the river, that then the surveys west of that, or up the river, must be constructed on the survey so fixed, and will appropriate the land in controversy. All the surveys above survey 109, as has been before seen, are placed on the south bank of the river by the same facts that place any one of them there; and it would perhaps avoid all questions if we do not give so much weight to the true position of survey 109 as seems to have been given to it in the court below, for it may be that section 108 and section 109 under their field notes could not be given the quantity of land called for. Section 108, before reaching the width called for in its field notes, was cut off to the west by the river, which it could not cross, and it was cut off to the south by the river touching the western boundary of section 107, while section 109 would have its full front on the south bank of the river in a bend which would extend eastward more than the width of the survey before reaching the abrupt bend to the west, looking up the river. These matters, however, could not affect the true position of section 110, nor of any section west of that.

It is said that no actual surveys were ever made, and that must be conceded to be true, if the word be used in its ordinary sense; and it is further said, that no description of the lands, either accurate or inaccurate, can be found in the surveys. We must look to the field notes to ascertain whether they give any or an accurate description of the several tracts of land, and when in succession one calls for another we may and must look to all preceding surveys to fix the locality of the last, unless this is otherwise fixed. We must also look to them to determine what the intention of the surveyor was, for his intention operative in law must be ascertained from the field notes which he made out to describe the land in each of the tracts, aided by such extrinsic evidence as may be admissible for the correct application of the field notes to the land; and no mere secret intention on the part of the surveyor can have any effect.

The field notes after those for section No. 1, which it is conceded is fully identified and properly described, in succession as they extend up the river westward, call for the northwestern corner of the preceding survey. In form the field notes of the several surveys do not differ, except that the meanders of the river fronts and length of the side lines to conform to this differ in length, and as a sample the field notes of survey 108 will be given. They are as follows, so far as necessary to be given: "Situated in the Panhandle, in Jack District, about 41 1/2 miles above Bent's Fort, on the south bank of Canadian River, and known as survey No. 108, in block No. 46, beginning at a mound the northwest corner of survey No. 107; thence with river south 70 degrees west 600 varas, south 351 degrees west 672 varas to mound on river; thence south 3303 varas to mound; thence east 950 varas to mound; thence north 4059 varas to beginning."

Each survey is 950 varas wide, and each contains the declaration that the land is situated "on the south bank of the Canadian River." That the surveyor intended it should be is conclusively shown by the field notes he made, and that any one of the field notes fails to describe the tract of land to which it applies certainly does not appear upon the face of the field notes of any particular survey or upon the face of all of them considered together. Surveys 108 and 109 may not entitle their owner to take as much land as they call for, simply because they can not be extended across a navigable stream; but this does not affect other surveys or make their localities in any respect uncertain, for we know the westing it was intended these two surveys should cover.

That it was the intent of the surveyor to make the surveys join by calling in each succeeding one for that which preceded it ought not to be denied; but does it follow from this that the calls for each survey to front on the south bank of the river should be disregarded, when it appears clearly that the call for surveys 108 and 109 to join for the distance of 803 varas was by mistake, based on want of correct information as to the length of an abrupt bend in the river? Upon this question rests the decision of the branch of the case now under consideration.

It is held by the majority, that the difficulty arises from a mistake on the part of the surveyor, and that is readily conceded; but the inquiry arises, whether this mistake was as to the existence of the river and its general course or as to its course at a particular point; and as to this it seems there ought to be no controversy. If the mistake was as to the matters first named, there might be some plausibility in holding that the surveys should be located in accordance with the calls for contiguity, although the evidence clearly shows that the side and back lines were never surveyed; but that mistake in either of these respects existed can not be held in the light of the evidence contained in the record. That the existence and general course of the river was known is placed beyond question. The surveys began on its bank; it had been imperfectly meandered before the field notes were made out, and that this was substantially correct at all places save one for a distance of seventy-eight miles is manifested by the sketch before referred to, which shows the meanders of the river as they were supposed to be when the field notes were made out, and as since found to be upon an accurate survey. At the time the field notes were made out its course was so well known that the surveys from 1 to 108, and from 110 to 158, were so accurately described on their fronts that the court below and this court evidently would have held them all-sufficient but for the supposed break in contiguity between numbers 108 and 109.

When it is evident that a survey or block of surveys is in some respect erroneous in calls, and that this results from mistake as to a particular fact, ought not effect to be given to what clearly appears to have been the leading intention, rather than to defeat that because of an inaccuracy brought about evidently by mistake as to some particular fact not bearing on the mere specific intent manifested? Was it the intent of the surveyor to embrace within the 158 surveys the entire front on the south side of the river, from the lower corner of survey No. 1 to the upper corner of survey No. 158, or was it the intent to have the surveys contiguous although they might not reach to the river or might cross it and lie several miles to the north of it, where the same surveyor for the same owner had made other surveys by virtue of other certificates? The field notes settle that question, for together they call for the entire south front on the river for seventy-eight miles. The plat of the block sent to the Land Office showed the surveys to front on the south bank of the river, and so they appeared on the maps of the General Land Office as well as on those of the land district.

The law settles that question, for in determining the locality of a survey, in the absence of evidence showing that the call was made through mistake, it recognizes the propriety of giving more weight to such a call as evidence of intention than does it to some call for a point determined or to be determined only by course and distance. The surveys were each given the front on the river which the law permitted them to have when fronted on a navigable stream, which made them long and narrow; and it may be asked whether this was done because it was intended each survey should front on the river, or because it was possible some river might be found in the distance called for from the back line of each survey on course called for.

No case other than this can be found in which it was held that a line never in fact established, and susceptible of establishment only by course and distance, should control a call for a river, unless it was shown that some other stream was mistaken for the river called for, and especially so when the river is made the starting point from which course and distance must run to fix the back line. Nor can a case be found where failure in whole or in part of a call or calls for lateral contiguity of two or more surveys, all calling to front on the same river, has been deemed sufficient to justify a court in disregarding the call for a river because otherwise the contiguity called for can not be given.

All the surveys are the same width, but the lines running north and south of the same surveys and of different surveys are of different lengths very frequently; and this results from no other fact than that regard was had to the meanders of the river as they were understood to be; and in view of this fact it can not consistently be held that the river was called for as the front of every survey, in connection with the other calls in any one survey or in all the surveys, because the true position of the river was unknown, or thought to be unknown. The river was called for because its position was believed to be known, and was known with reasonable certainty at all places but one, and the difference in the lengths of lines running north and south was made because of that belief and knowledge, in order to include in each survey 640 acres of land, which made it necessary to calculate the quantity of land in the bends of the river in front of each survey. The river was called for as the northern boundary of every survey, not because it was erroneously believed that under other calls each survey would reach the south bank of the river, but because it was intended the river should be the northern boundary of each survey, and to disregard it and build the surveys on lines never established and that can be established only by measurement from the river on a course due north, is, in effect, to sacrifice the real and known to that which can become real by its ascertained relation to the thing disregarded.

It is true, that the calls for the river or the calls for connection of the surveys on each other at one place must give way, and which under the facts of this case should yield ought not to be deemed a debatable question on reason or authority. Phillips v. Ayres, 45 Tex. 601; Jones v. Andrews, 62 Tex. 652 [62 Tex. 652]; Booth v. Upshur, 26 Tex. 64; Boon v. Hunter, 62 Tex. 582; Railway v. Thompson, 65 Tex. 186. In some of these cases calls for older surveys as contiguous were disregarded, because shown by the other evidence to have been made by mistake.

The rules laid down in Robinson v. Doss, 53 Tex. 508, have always been recognized in this State; but when applied in this case, can it be said that there is any more certain and reliable evidence of the true locality of the northern boundary of each of the surveys than the call for the south bank of the river made in the field notes, which must evidence what the intention was? In the case referred to it seems to have been contended, that the intention of the surveyor could not be looked to in a case in which an actual survey was not made; but in reply to that this court said: "Appellees assert that an office survey — a survey not actually made — can not be made to conform to the intention of the surveyor;" citing Chinoweth v. Haskell, 3 Peters, 92. That case does not establish the rule that the intention of the surveyor is to be disregarded as to the location of lines not actually run. It announces and enforces a rule applicable to all cases, that 'the intentention of a surveyor can be of no avail, since he has not indicated this intention on his survey.' On the other hand the authorities show, that although the survey was not actually made, we are still to seek for the intention of the surveyor. Says Judge Marshall, speaking for the Supreme Court of Kentucky: 'This is not a question of tracing an actual boundary or of discussing a lost one, or one which may be presumed to have been completed; but of constructing a survey by adding two lines which were never actually run; and the cardinal object is, to ascertain what the surveyor would have done if he had gone on to complete the work. Citing 2 Bibb, 493. This is to be ascertained not byvague conjecture, but by rational deductions from his report,as compared with existing facts.' Ralston v. McClurg, 9 Dana, 339; see, also, Phillips v. Ayres, 45 Tex. 607; Booth v. Strippleman, 26 Tex. 441; Booth v. Upshur, Id., 72, 73."

In the case of Allen v. Koepsel, 77 Tex. 507, it was shown, that a title called for the Guadalupe River for the eastern boundary; but there was evidence tending to show that the surveyor who made the survey on which the title issued mistook a slough or old channel of the river for the river, and meandered and described that in his field notes. Under such a state of facts it was held, that it was proper the jury should determine whether the slough or the river was the original line established by the surveyor.

In Land Company v. Thompson, 83 Tex. 169, it appeared that a surveyor in making out field notes, where no actual surveys were made, called for Devil's River for such of them as he supposed crossed that river (a navigable stream), but he in fact mistook a canyon for Devil's River, and from his calculations placed the surveys so as to make that sustain the relation to them which the supposed Devil's River would. Under that state of facts it was held, that the call for Devil's River would not control the calls for course and distance from established points.

These cases but hold, that a mistake in a call for a river may be shown as may be a mistake in reference to any other call for boundary; but there can be no just claim in the case under consideration that the surveyor was ignorant of or mistaken as to the existence of the Canadian River or as to its general locality; and his constant assertion, made in reference to every survey, that it began and fronted on the south bank of that river, ought, in the absence of some evidence tending to show mistake as to these matters, to be held conclusive of that fact, and all inferior calls be made to yield.

Believing as I do that in law and fact all the surveys made for the railway company fronted on the south bank of the Canadian River, the question whether the resurveys that were made after the mistake in the length of the bend in the river was discovered should be treated as corrections or relocations, ought to depend on whether they embraced land not embraced in the first field notes. As the surveys were not based on files, the railway company could not take under them lands not embraced in them. If, as bounded by the field notes, any survey, on account of mistake as to the meanders of the river on its front, did not contain 640 acres of land, this was the misfortune of the company, and it could not extend the boundaries so as to embrace the area intended; and especially so as against a person who had acquired right to land that would be brought in by the new survey. If, however, on account of mistake in the meanders of the river, or by miscalculation, the field notes first made out embraced more than 640 acres in a survey, I see no reason why the field notes might not be so corrected as to exclude all in excess of that which could be lawfully appropriated under a particular certificate. This would be essentially a correction, and not a relocation. The cases of Adams v. Railway, 70 Tex. 265, and Railway v. Thompson,65 Tex. 186, assert no contrary rule. The fact that a surveyor might embrace by mistake, however brought about, more land in a survey than the certificate by virtue of which it was made called for, would not invalidate the survey and leave all the land subject to appropriation by another person; but in such case it would be manifestly just to the State, as well as the owner of the land claim, to permit the survey to be so corrected as to embrace only the proper quantity of land.

Under the view taken by the court of the proper method of locating the original surveys, the last surveys made for the railway company would necessarily be relocations, for they would appropriate lands south of the river, while it is held the original surveys covered lands several miles north of the river.

Without wishing to discuss the question of estoppel, I do not wish to be understood to concur in the legal propositions asserted on that branch of the case. If facts exist which would estop John W. Maddox from asserting title to the land were he in the place of the appellees, then I am of opinion they should be so held; for their obligation to the railway company to cause the lands to be so surveyed and described in field notes returned to the General Land Office, that the company through them should acquire title, was as absolute as though the contract had been made with them directly. They and Maddox were parties under a written contract made before the certificates were received for location; they knew of the contract under which they were received, and, with Maddox, entered upon its performance; and the fact that they were not known to be in partnership with Maddox, that they were not personally trusted, can not make their relation to the railway company less fiduciary than would it have been had the contract been made with them, so far as they are concerned. They undertook the obligation in the contract with Maddox, that "the surveys are to be made in a good, practical manner, and as well marked on the ground and identified in the field notes as is necessary and the nature of the country will admit." It was their duty to comply with this, and I am not willing to hold if Maddox would be estopped that they would not be; when, if their contention be sustained, it appears that they received compensation for making and returning the surveys, and must be held through Maddox to have represented that the field notes were absolutely correct in all material respects. It was their duty to see and to know that Maddox in no way permitted a misrepresentation to be made to the company in regard to the surveys.

In the proposition, that they must have been personally trusted or estoppel could not arise, I do not concur, in view of the relations shown to have existed between them and Maddox. Nor do I concur in the further proposition, that if fiduciary relations between appellees and the railway company were necessary to create an estoppel, that this relation was not in full force at the time appellee sought to acquire title to the land. If, however, estoppel exists against any party to the transaction, it does not necessarily follow that this must be based on any fiduciary relation. It may be rested upon the familiar rule, that one who knowingly makes to another a false representation in reference to a material fact, or causes such a representation to be made, with intent that such representation shall be acted upon, will be estopped, if the person to whom the representation is made is, without fault, ignorant of the falsity of the representation and relying upon its truthfulness acts upon it.

The field notes made out and returned to the General Land Office under the supervision of Maddox and appellees, showed not only perfect surveys fronting on the south bank of the Canadian River, in which the meanders of the river were given, but they had attached to them certificates which declared, "that the foregoing survey was made on the ground according to law, and that the limits, boundaries, and corners, with marks natural and artificial, are truly described in the foregoing plat and field notes." Were these certificates and the field notes false? Appellees base their case on the fact that they were. Did they know that they were false? If false, the evidence of both Maddox and Munson, two of the partners, shows that they knew the certificates were false. Was the representation of one partner the representation of all? Necessarily so, in a business transaction to which the partnership was a party. Was it intended that the railway company should act upon the representations contained in the field notes and certificates? There can be no doubt of that. Did the company act upon these representations in ignorance of their falsity? The evidence would sustain a finding that it did, though there was evidence from which an inference might be drawn that, its agent had reason to believe that the surveys were not actually completed on the ground, though none to induce the belief that the surveyor and Maddox and Munson had not sufficient data to correctly describe the land in each survey.

Under the rulings in this case, what must be the effect of the company's reliance on the representations made? The result of the litigation answers the inquiry.

Having a deep conviction that this case has not been decided in accordance with the settled rules of law or with the rights of the parties, I have deemed it proper thus to present some of the grounds for my nonconcurrence in the disposition made of it.

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