Cockrell v. Work , 94 S.W.2d 784 ( 1936 )

On Appellant's Second Motion for Rehearing. We have carefully considered this motion and all of the written arguments filed in its support, and adhere to the conclusion reached by us in passing upon and refusing appellant's first motion for rehearing. The docket entry dismissing the first motion was inadvertently made by the writer. The motion was fully considered, and corrections in the statement of facts made in our first opinion pointed out in the motion were made, and the motion refused.

The second motion for rehearing presents questions not raised in the first motion, but it seems to us that none of these questions can be properly decided in appellant's favor.

Appellant's theory of the case on the trial, and in the first motion for rehearing, was based on the contention that the calls for the three crossings of Cedar bayou as set out in the English field notes filed by the original surveyor Hughes, some six months after the grant was issued by the Mexican government, as a matter of law fix the location of the north line of the Bloodgood survey. As they appear in the original grant, these calls do not give the course of the bayou at the three crossings called for in the grant. A translation of the original Hughes field notes filed in the General Land Office, as before stated, after designating the northwest corner of the grant at a stake with the marked bearing trees set out in the grant, contains the following calls: "Thence N. 80 1/2 E. 400 vs. crossed Cedar Bayou bearing S.E. 600 vs. the same, bearing N.E. 1200 vs. the same bearing S.E. 2500 vs. prairie; 5000 vs. the beginning."

We do not think the authorities cited by appellant sustain his contention that the calls for the course of Cedar bayou at the three crossings mentioned in the Hughes' translation of his original field notes conclusively fix the location of the north line of the survey. On the contrary, the well-established rule of decision in this state is that such calls for natural objects in a grant are only conclusive when there is no ambiguity in the description of the survey. This is the express holding in the case of Wilkins v. Clawson, 37 Tex. Civ. App. 162,83 S.W. 732, 734. All that was held in that case was that the English translation of the field notes filed by the surveyor who made the survey should be considered as a part of the grant in determining the true location of the survey. The judgment in the case reversed the judgment of the trial court, holding that the calls in the grant controlled the location of the survey. In discussing this question the opinion says: "But we must not look alone to these field notes in determining the sufficiency of the description. The original English field notes and the plat or map prepared by the surveyor who located the survey are a part of the original title, and must be considered together with the field notes embodied in the grant for the purpose of identifying and fixing the location of the survey. Welder v. Carroll, 29 Tex. [317], 331; Cook v. Dennis, 61 Tex. 246, 248; Irvin v. Bevil, 80 Tex. [332], 338, 16 S.W. 21."

This decision seems to us to be in entire accord with the long-settled rule that where there is ambiguity in the calls of a survey, a locative call either in the original grant or in the English field notes filed by the original surveyor is not conclusive. The rule is thus clearly stated in the case of Jones v. Andrews, 72 Tex. 5, 9 S.W. 170, 173: "That while natural objects and artificial boundaries will generally prevail over course and distance, yet the former will often, from the nature of the case, be compelled to yield to the most inferior call. Everything being equal, the call for natural objects would have precedence, because most endurable, and less liable to change, and are supposed to be selected as land-marks because of their immutability. This is only true when they are selected as locative calls, and are not then always absolute. When they are noted in the field-notes as mere incidental calls in passing, their reliability is weakened, and sometimes rendered wholly worthless."

It would have been manifestly erroneous for the trial court to have instructed the jury in this case to fix the true location of the north line of the Bloodgood survey as shown by the calls for the three crossings of Cedar bayou in the English field notes filed in the Land Office by Hughes. If the locative nature of these calls is conclusive on the question of the true location of this line, such a charge should have been given. That such a charge should not have been given is forcibly illustrated by the opinion of our Supreme Court in the case of Huff v. Crawford, 89 Tex. 214, 34 S.W. 606, 610, in which the court, speaking through the late Justice Brown, says: "If upon another trial the evidence should show that the true location of any of the Scott or other surrounding surveys is material to the issue presented, then the court should not give a charge stating simply the law which defines the dignity of the different calls in a patent or other instrument, — as, for instance, natural and artificial objects, course and distance, as did the charge given in this case, — for the reason that in case of conflict between such calls this would be a charge upon the weight of the evidence. The charge upon this question should, in addition to stating the rule as laid down, also in appropriate language to apply to the particular facts of the case give the qualification of the rule `that the true and correct location of the land is ascertained by the application of all or any of these rules to the particular case, and, when they lead to contrary results or confusion, that rule must be adopted which is most consistent with the intention of the parties apparent upon the face of the patent, read in the light of the surrounding facts and circumstances.' Stafford v. King, 30 Tex. [257], 271 [94 Am.Dec. 304]."

The same rule is stated in the case of Linney v. Wood, 66 Tex. 22, 29,17 S.W. 244, 246, in which it is said: "There is no rule of law which makes a call for a natural object under all circumstances the controlling call, so as to preclude the consideration of other evidence as to the true locality of the land."

The marked bearing trees found on the ground being of the identical kind of trees called for in the field notes, and their course and distance from each other being identical with the calls in the grant, such trees are not artificial, but have the dignity of natural objects. Phillips v. Ayres, 45 Tex. 601, 608.

In addition to the facts set out by Justice LANE in the main opinion, against which this second motion for rehearing is directed, the evidence shows that a line run from this old marked tree corner, the course and distance called for, will reach the long established and recognized northeast corner of the Bloodgood survey, and that such line will cross Cedar bayou three times; that for the first half of the distance this line runs through timbered land, and that there are old marked trees on both sides of the line; that the line as fixed by the crossing of Cedar bayou as called for in Hughes English field notes does not run through timber, and with the exception of one old tree there is no indication that at the time the original survey was made there were any trees within one-fourth of a mile of the corner fixed by giving conclusive effect to the crossing calls of Cedar bayou in the English field notes. In addition to this, the evidence shows that if the north line of the Bloodgood is run at the course called for in the field notes as set out in the grant and in the Hughes English field notes, it will cross Cedar bayou five times, and that in order to limit the crossings to the three at which the course of the bayou is found to correspond with that given in the Hughes English field notes the course of the line must be changed from N. 80 1/2 E. to N. 79.19 E.

Upon this state of the record it is clear to us that the case was one for the jury to decide, and that the finding of the jury is supported by the great weight and preponderance of the evidence.

The attack made in the motion on the charge of the court, on the ground that the charge was upon the weight of the evidence, cannot be considered. No such objection to the charge was made in the trial court, nor in the brief of appellant filed in this court. The only objection to the charge made on the trial or presented in appellant's brief complains of the charge on the ground that the undisputed evidence conclusively fixes the location of the north line of the Bloodgood survey as claimed by appellant, and that appellant was entitled to an instructed verdict so locating the line. Article 2185, R. S. 1925; Davenport v. Ry. Co. (Tex. Civ. App.) 72 S.W.2d 933-935; Waterman Lumber Co. v. Beatty, 110 Tex. 225,218 S.W. 363; Isbell v. Lennox, 111 Tex. 522, 295 S.W. 920; Boatner v. Ins. Co. (Tex.Com.App.) 241 S.W. 136; A. L. Wolff Co. v. Ry. Co. (Tex.Com.App.) 289 S.W. 1000.

The charge complained of in the motion for rehearing as being upon the weight of the evidence is special issue No. 1, which reads as follows: "Do you find from a preponderance of the evidence that the original northwest corner, as called for in the original league grant to William Bloodgood, and identified therein by the two witness trees, one an oak and the other an elm, both marked `W. B.,' is located on the ground at the point claimed by the plaintiff Cockrell, and identified, `B M I F,' on the map presented by the plaintiff's witness Faber?"

We do not think the objection to the charge should be considered when made for the first time on motion for rehearing. If this conclusion is unsound, appellant should not be heard to complain of the charge, because if the charge gives undue prominence to the testimony of any witness in the case it is that of plaintiff's witness, Faber.

This charge is further objected to on the ground that it does not submit the issue in such manner as to require the jury to find the true location of the line. We think this objection to the charge comes too late. But we cannot agree with appellant that the charge is subject to the criticism made in the motion. There is no evidence which tends to show that the marked trees called for in the field notes were located elsewhere than at the point claimed by appellees.

The appellant alleged in his petition that the location of the land claimed by him to be vacant land was primarily dependent on the location of the north line of the Bloodgood survey. The burden was upon him to show the location of the claimed vacancy, which he contended was conclusively fixed by the calls in the field notes for the crossings on Cedar bayou. When the jury found against him on this issue, the court was authorized, if not required, to render the judgment as it did in favor of the defendants, that plaintiff take nothing against any of them and that defendants recover of plaintiff their costs of suit.

Our attention is called by appellees to the statement on page 789 of our main opinion, that other witnesses (in addition to those whose testimony is set out in the opinion) "testified that the northwest corner and north line" (of the Bloodgood survey) "was generally understood by those in the vicinity to be where Faber's map shows them to be." We have examined the voluminous statement of facts, and fail to find such testimony, and withdraw this erroneous statement from our main opinion.

The other questions presented by the motion, we think, were correctly disposed of in our main opinion and need not be further discussed.

It follows from the conclusions hereinbefore expressed that the motion for rehearing should be overruled and it has been so ordered.

Overruled.