Hughes v. State of Texas , 57 Tex. Civ. App. 306 ( 1909 )

This action was instituted by the State of Texas, together with A. P. Hope, Oscar Hope and W. F. English, against Wm. E. Hughes and Annie S. Kennedy, for the purpose of fixing and defining on the ground the lines of the James Adams survey. The issues presented by the pleadings of the parties make this strictly a boundary suit. The Adams survey was made in 1838 and patent issued in 1842. It was located upon a peninsula formed by a bend in Cypress Bayou, which on the east side broadens into what is called Caddo Lake. The following diagram will show its location and the lines in dispute:

[EDITORS' NOTE: THIS MAP IS ELECTRONICALLY NON-TRANSFERRABLE.]

The field notes of the survey as made by the locating surveyor are as follows:

"Beginning at the N.E. corner of a survey made for Obadiah Hendrick, which survey included Taylor's Bluff on Soda Lake, or Ferry Lake, a stake from which a pine 22 in. dia. brs. N. 35 E. 2 vrs. dist. and a pine 20 in. dia. brs. S. 45 E. 3 vrs. dist., both marked J. A.; thence running with the waters of the lake (1) N. 63 E. 840 vrs.; (2) N. 16 E. 950 vrs.; (3) N. 24 E. 750 vrs.; (4) N. 17 W. 900 vrs.; (5) N. 23 1/2 E. 1,380 vrs.; (6) N. 35 E. 1,130 vrs.; (7) East 880 vrs.; (8) S. 25 E. 950 vrs.; (9) S. 31 E. 982 vrs.; (10) S. 36 W. 400 vrs.; (11) S. 47 W. 415 vrs.; (12) S. 41 E. 2,135 vrs.; (13) N. 74 W. 960 vrs.; (14) N. 23 W. 920 vrs.; (15) S. 9°/27' W. 516 vrs.; (16) S. 33 W. 1,210 vrs.; (17) S. 23 W. 1,160 vrs.; (18) S. 58 E. 410 vrs.; (19) S. 60 E. 920 vrs. Leaves the lake, a stake from which a sweet gum 12 in. dia. brs. E. 10 1/2 vrs. off and a sweet gum 12 in. dia. brs. N. 73 E. 11 vrs. off; thence S. 55 W. on a conditional line with Martin at 586 vrs. Martin's conditional corner at 836 vrs. a stake from which a black jack 8 in. dia. brs. N. 75 E. 5 vrs. off; thence (21) N. 65 W. 3,790 vrs. to the beginning corner."

The lines indicated on the diagram are run according to the calls for course and distance. The facts show that both the beginning corner and the corner at the end of the nineteenth call are some distance from the water line of the lake or bayou. It is also shown that the calls for course and distance do not conform to the configuration of the banks of the lake or the water line. The appellees contend that the true boundary should be the lines made by course and distance; while the appellants claim that the water line of the lake should govern from the beginning corner at the southwest to the corner at the end of the nineteenth call at the southeast, and thence along the south line.

The case was submitted in the court below upon special issues, and upon the answers returned the court entered judgment in favor of the plaintiffs in the suit. There are numerous assignments of error accompanied by a voluminous record, and we have given the case much careful consideration. The principal issues of fact, the location of the lines run upon the ground by the surveyor, having been found by the jury in favor of the contention of the appellees, we think the court correctly entered a judgment in their favor. When the footsteps of the surveyor can be found and identified on the ground this will determine the true boundary, and in conflicting calls that line will be adopted which follows his course. (Fulton v. Fandolig, 63 Tex. 331; Hamilton v. Blackburn, 43 Texas Civ. App. 153[43 Tex. Civ. App. 153]; Oliver v. Mahoney, 61 Tex. 612 [61 Tex. 612]; Booth v. Strippleman, 26 Tex. 440 [26 Tex. 440]; Maddox v. Fenner, 79 Tex. 292.)

Some of the assignments point out rulings which we think were erroneous, but not such as would justify a reversal of the case.

The testimony shows that by the judgment rendered the claimants under the Adams patent got the full quantum of land they were entitled to under the certificate by virtue of which the survey was made. Only a portion of the lands called for in the original Adams certificate was located upon the tract in question. The lines run according to course and distance, as shown on the diagram, embrace an area fully equal to what the locating surveyor's estimate showed he intended to locate at that place. The jury found that the land contained within the calls for course and distance amounted to 2,678 acres. This was practically the same as that found in the estimate of the surveyor. If the water line or banks of the lake and bayou be taken as the boundary, as contended for by the appellants, there would be an excess in this survey of about 1,700 acres. This, it would seem, would furnish strong evidence to support the judgment rendered. The number of acres included within the lines run according to course and distance, added to that which was subsequently located elsewhere, equal the number called for in the certificate.

No useful purpose could be subserved by an extended discussion of the questions presented in the briefs of the appellants. The judgment of the court is affirmed.

Affirmed.

Application for writ of error dismissed for want of jurisdiction.