Opinion
No. 4180.
May 28, 1932. Rehearing Denied June 23, 1932.
Appeal from District Court, Rusk County; R. T. Brown, Judge.
Suit by J. N. Peterson against T. H. Gill, and others. From the judgment, plaintiff appeals.
Judgment reformed and rendered for plaintiff.
The suit was by appellant, J. N. Peterson, as plaintiff against appellees T. H. Gill and his wife, M. A. Gill, A. F. Cameron, W. D. Tucker, G. P. Birdwell, and W. A. Martin, Jr., as defendants. As made by the appellant's petition it was to try the title to a part of the R. W. Smith survey in Rusk county described in said petition as follows:
"Beginning at a stake in the old road, the N.W. corner of the original Gill 131-acre tract, said corner being also the N.W. corner of the Robert W. Smith 640-acre survey; thence S. with the W. boundary line of said Gill tract and the E. boundary line of the W. H. Flourey tract and also the W. boundary line of said Robert W. Smith Survey 1,498.5 feet to the original corner of said Gill 131-acre tract, a stake for corner; thence 5.84 deg. 51' E. with the S. boundary line of said original Gill 131-acre tract 729.8 feet to the right of way line of Missouri Pacific R. R. 100 feet from the center line of said right of way, a stake for corner; thence N. 59 deg. 16' E. with the said right of way line 459.45 feet to a stake for corner; thence N. 1,308.7 feet to a stake for corner on the N. boundary line of the original Gill 131-acre tract and the N. boundary line of said Robert W. Smith Survey, said corner being in the old road; thence N. 88 deg. 57' W. 1,122 feet to the place of beginning, containing 38 acres of land, being the same land conveyed by T. H. Gill and wife M. A. Gill to C. R. Flourey by deed recorded among the public records of Rusk County, Texas, in deed book 115 at page 114, and conveyed by said Flourey and wife, Ida Flourey, to J. N. Peterson by deed recorded among the public records of Rusk County, Texas, in Book 115 at page 115."
In their answer appellees disclaimed any claim of title in them to the part of the land sued for described by metes and bounds as follows: "Beginning at a stake, the N.W. corner of the Robert W. Smith Survey, Rusk County, Texas; thence S. 41' W. 1,519 feet to corner on the W. B. L of the said Robert W. Smith Survey; thence S. 84 deg. 40 E. 713 feet to Missouri-Pacific right of way; thence N. 20' E. 1,446 feet to corner in old road; thence N. 88 deg. 40' W. 899 feet to the place of beginning"; and as to the remainder thereof interposed a plea of "not guilty," and pleas setting up the four, five, and ten-years statutes of limitation. The effect of the disclaimer was to eliminate from the controversy between the parties all but 229.3 feet east and west by 1,308.7 feet north and south (7.3 acres) off the east part of the tract sued for. It appeared without dispute in the evidence that in January, 1922, appellee Gill owned a tract of about 131 acres of the R. W. Smith survey in Rusk county, and was indebted to the state for taxes due on the land, to the holder of notes covering purchase money thereof, and to other persons for merchandise they had sold to him; that C. R. Flourey offered to buy enough of the land at a specified price per acre "to," quoting from testimony of Flourey in the statement of facts, "clean up everything he (Gill) owed;" that Gill accepted the proposition; that it was agreed that it would require 38 acres at the price specified to pay the indebtedness; and that it was agreed, further, that the 38 acres should be taken off the west part of the tract "north of the railroad." It appeared, further, that the parties arranged with a surveyor (one Choice) to go on the ground and make a survey of the 38 acres; and that the surveyor made such a survey and field notes thereof. It appeared, further, that by a deed dated January 13, 1922, Gill conveyed to said C. R. Flourey what purported to be the 38 acres, describing same by said field notes, which, as copied in the deed, were as follows:
"Beginning at the N.W. corner of the Gill home witness gum; thence S. 23 chains (1,518 feet) to corner witness pin oak E. 3 ft.; thence S. 85 El. 14 chains 43 links (952.4 feet) to right of way of I G N Railroad; thence witness gum N. 85 W. 6 ft; thence N. 57 E. with said right of way 3 chains 50 links (231 feet) to stake witness water oak S. 57 W. 6 yards; thence N. 21 chains 50 links (1,419 feet) to corner in road; thence with road 17 chains (1,122 feet) to place of beginning, containing 38 acres."
The trial was to the court without a jury, and he made and filed findings of fact as follows:
"1. On January 13, 1922, T. H. Gill and wife, were the owners of a tract supposed to contain 131 acres, situated on the R. W. Smith survey in Rusk County, Texas, upon which they resided and used as their homestead. At that time they were indebted to C. R. Flourey on an account for merchandise, and they were also indebted to him for an unpaid balance on the vendor's lien notes given by Gill and wife, for the land, which notes Flourey had acquired from the vendor of Gill and wife. The parties agreed to settle the entire indebtedness by conveying to Flourey a part of the land. Flourey employed John Choice, a surveyor, who surveyed the tract Gill and wife were to convey to Flourey, marking the lines and corners thereof, and Flourey had the deed prepared using the field notes furnished by the surveyor. Gill and wife executed this deed on January 13, 1922, which was immediately after the survey, and in this deed the property conveyed is described as follows: `All that certain lot or parcel of land in Rusk County, Texas, a part of the R. W. Smith H.R. Survey about 16 miles N.W. from Henderson. Beginning at the N.W. corner of the Gill home, witness gum; Thence S. 23 chains to corner witness pin oak E. 3 ft. Thence S. 85 E. 14 chains, 43 links to right of way of I G N Railroad; Thence witness Gum N. 85 W. 6 feet; Thence N. 57 E. with said right of way 3 chains 50 links to stake witness water oak S. 57 W. 6 yards; Thence N. 21 chains 50 links to corner in road; Thence with road 17 chains to place of beginning, containing 38 acres.' 2. Flourey and Gill were present and accompanied Choice while he was making the survey. Choice commenced at the North West corner of the Gill tract, which is the North West corner of the R. W. Smith Survey, and from that point ran S. 41' W. along the W. B. L. of the Smith survey or along what he supposed to be the W. B. L. of the survey, a distance of 1,519 feet and there marked a pin oak tree 3 feet E. of the corner as the bearing tree to designate the corner. This tree is not standing, though there is a pin oak stump at that location. From this corner Choice then ran S. 84 Deg. 40' E. 713 feet to a point on the right of way of what was then the I G N Railroad and is now the Missouri Pacific bearing tree was established to designate this corner, but the land over which this line was run has since been cleared and neither line trees nor the bearing trees can be found measuring the distance of this line Choice made a mistake because had he followed the distance in the field notes, that is, 14 chains and 43 links, he would have passed the North margin of the right of way, crossed the railroad track, which was then in use and over which trains were run daily, and gone to a point near the Southwest margin of the right of way, a distance of 239.38 feet beyond the corner he actually established. From the corner in the North margin of the right of way Choice then ran North 59 deg. 11' E. 231 feet and there established the S.E. corner by marking a water oak that was located South 57 West 6 yards from the corner. The land over which this line was run has since been cleared, and neither the line trees nor the bearing trees are standing though there is a water oak stump about where the bearing tree is placed in the field notes. From this point Choice then ran North 20' East 1,446 feet to a corner in an old road and marked a Sweet Gum tree near the end of this line as the corner tree. This tree is still standing. Quite a number of the line trees are still standing and are marked with three hacks, the hacks sloping downward towards the South, which would indicate that the hacks were made by a surveyor running in a Northerly direction. The actual course and distance from the last corner to the beginning corner is N. 88 deg. 40' W. 899 feet. The surveyor did not run this line or measure the distance but calculated the length by the lengths and courses of the other lines. 3. Gill and Flourey agreed upon this line as the dividing line between their lands, and from the time the survey was made until a short time prior to the institution of this suit, Flourey and his vendee, the plaintiff, have recognized this line, and neither claimed nor held possession of any part of the land lying East thereof. The defendants Gill and wife have claimed and held possession of all of the land lying East of this line and have recognized the line as being their West Boundary Line, Gill and wife executed no writing to either Flourey or Peterson except the deed heretofore referred to. 4. On February 1, 1922, Flourey and wife, by deed of that date conveyed to plaintiff the tract of land Gill had conveyed to Flourey, describing it by the same field notes used in Flourey's deed. The plaintiff immediately went into possession of the land, and he and Gill agreed upon the line run by Choice as the dividing line between their lands, and a fence was built along this line, Gill furnishing the posts and Peterson the other material. 5. This line was run for the first time by the surveyor, Choice, and no other line was ever run in that vicinity until after this controversy arose. The parties to this suit, for the purpose of obtaining data to be used in evidence at the trial, had their respective surveyors make a survey of the premises. The land lying East of this line for a distance of 300 feet is heavily timbered, and there is no evidence of a line having at any time been run at the location the plaintiff claims to be the location of his East line, except the line run after the controversy arose, by the surveyors of the respective parties to secure data for this trial. I find that the line run by Choice, that is, from the Southeast corner as established by him in the North margin of the right of way of the Missouri Pacific to a corner in the old road lying S. 88 deg. 40' E. 899 feet from the North West corner of the survey to be the true boundary line between the lands of plaintiff and defendants and that the plaintiff is the owner of so much of the land in controversy as lies West of this line but that he owns no part of the land lying East thereof. 6. I find that the defendants, G. P. Birdwell and W. A. Martin, Jr., are the owners of an oil and gas lease executed by T. H. Gill and wife, covering so much of the land in controversy as lies East of the boundary line as heretofore found, and the defendants, D. F. Cameron, W. D. Tucker are the owners through a conveyance from Gill and wife of an undivided interest in the minerals under the tract covered by the lease held by Birdwell and Martin and in the rents and royalties payable under the lease. Gill and wife are the owners of all the land in controversy lying East of the boundary line as run by Choice, subject to the rights acquired by the other defendants as stated herein."
On the facts found by him as shown above, the court concluded as follows:
"That the boundary line as run by Choice and agreed upon and acquiesced in by the defendants, Gill and wife, and the plaintiff J. N. Peterson and C. R. Flourey, his predecessor in title, is the true boundary line between the land of the plaintiff and the defendants; that is, the line commencing at a point in the North margin of the Missouri Pacific right of way at the South East corner as established by J. E. Choice, and from that point running N. 20' E. 1,446 feet to a corner in the old road, the last corner mentioned being S. 88 Deg. 40' E. 899 feet from the North West corner of the R. W. Smith survey. The plaintiff is entitled to recover so much of the land in controversy as lies West of this line but is entitled to recover no part of the land lying East of this line."
The appeal is from a judgment in appellant's favor for only that part of the land he sued for to which appellees' disclaimer applied.
Smith, West Gladney, of Henderson, for appellant.
Abney Bath, of Henderson, and Ben B. Hunt, of Mexia, for appellees.
Appellant insists it appeared from uncontradicted evidence (1) that it was the intention of Gill to sell and convey to Flourey and of the latter to buy of the former the west 38 acres of the 131 acres of the R. W. Smith survey owned by Gill, and (2) the intention of Flourey to sell and convey to appellant and of appellant to buy the same 38 acres of Flourey; and that, if that intention was not effected by the deed from Gill to Flourey and the deed from Flourey to appellant, it was because of mistakes made by the surveyor, carried into his field notes and into the deeds by using such field notes to describe the land. We agree it so appeared that the intention of the parties named was as stated.
That mistakes were made by the surveyor was demonstrated when an effort was made to apply the field notes to the situation as it was found to be on the ground. For instance, it will be noted that the second call in said field notes was S. 85 E. 952.4 feet to the right of way of the International Great Northern Railroad, whereas it appeared in the evidence that the distance on the ground to said right of way was only 729.8 feet. Again it will be noted that the third call in said field notes was N. 57 E. 231 feet with said right of way; that the fourth call was north 1,419 feet to a corner in a road; and that the fifth, which was the last call, was to run "with road 17 chains (1,122 feet) to the place of beginning," whereas it appeared in the evidence that, if those calls were applied to the ground in the order they appeared in the field notes, the survey would not close. There was evidence, however, also uncontradicted, that by reversing calls in said field notes and making inappreciable changes in courses and distances called for, the survey could be made to close on the ground, and that same, when so closed, would contain the 38 acres the grantors in the deeds mentioned intended to sell and convey and the grantees intended to buy. Reversing calls in the field notes to make the survey close was permissible, and without specifically pleading same appellant had a right to have the mistakes shown to exist in the field notes corrected. Moore v. Loggins (Tex.Civ.App.) 114 S.W. 183.
The theory, on which the trial court held that the intention of the parties to convey the 38 acres should not be given effect, was based, it is assumed, on undisputed evidence showing that as actually made on the ground by the surveyor and recognized by the parties, the northeast corner and east line of the survey was 229.3 feet further west than distances called for in the field notes placed same. We do not think the recognition by the parties of the work done by the surveyor as correct was entitled to any weight in view of the fact that it conclusively appeared such recognition was due to mistakes of the surveyor referred to and in reliance on the verity of calls made in his field notes.
It is unquestionably true as a general rule that, in locating land when a survey thereof is shown to have been made on the ground, the footsteps of the surveyor making such survey should be followed so far as they can be identified by objects called for in his field notes and found on the ground. Dalby v. Booth, 16 Tex. 563; Bolton v. Lann, 16 Tex. 96. But the purpose of the rule, as of all other rules for construing deeds and ascertaining boundaries of land described in them, is to aid in determining the intention of the parties, and it should not be allowed to so operate as to prevent the correction of obvious mistakes of a surveyor not to defeat such intention. "When this intention [of the parties] is once made manifest," said the Supreme Court in Woods v. Robinson, 58 Tex. 655, "all else must yield to and be governed by it."
As we view the record, the judgment should have been in appellant's instead of appellees' favor for the land in controversy. It will be reformed, and judgment will be here rendered awarding appellant a recovery of all the land he sued for.
On Motion of Appellees for a Rehearing and Request of Appellant for Additional Findings of Fact.
We think a proper disposition of the appeal was made when the record was first before us, and therefore overrule appellees' motion for a rehearing.
We agree with appellant in his contention that the finding of the trial court as to an agreed boundary line between Gill and Flourey and between Gill and Peterson was not warranted by the evidence, and find accordingly, as we did, in effect, when we set aside the judgment in appellees' favor. We are not satisfied that such a finding as that requested by appellant with respect to objects called for in the field notes made by surveyor Choice should be made, and therefore decline the request to make it.