Citations
- 264 S.W.2d 743
Full opinion text
McDONALD, Chief Justice.
This is a Trespass to Try Title suit covering an alleged vacant strip of 108 acres, purportedly lying between the South line of the William Stephenson League and the North line of the William Allen Survey in Orange County.
The issue is whether the original survey- or of the Wm. Allen Survey placed its N.E. corner in the South line of the Wm. Stephenson League (in which event there is no vacancy and the 108 acres belong to appel-lees) ; or whether he placed the N.E. corner of the Wm. Allen Survey at a point generally South of the South line of the Wm. Stephenson League (in which event there is a vacancy, and as such belongs to appellant State of Texas).
It is believed the schematic diagram below will aid in understanding the contentions of the parties.
The original field notes of the Wm. Allen Survey as made and certified by O. H. Delano call to begin at the Southwest corner of a survey made for John Stephenson (Point A on diagram) and ran N. 44 deg. 40 min. West 4020 varas ”a stake in mound” for the Northeast line and the N.E. corner of the Allen Survey.
The SW comer of the John Stephenson Survey is well known and is an agreed point. Commencing at this point and pursuing a course 44 deg. 40 min. West for 4020 varas will bring us to Point B on diagram, which is the point that appellant claims to be the N.E. corner of the Wm. Allen Survey, as originally set by Delano, when he surveyed the tract in 1838.
Appellees contend that Point C (diagram) is the N.E. corner of the Wm. Allen Survey as set by Delano when he surveyed the tract in 1838, although Point C is a distance of some 4500 varas from Point A along the prescribed course.
Trial was to a jury, which found that the original surveyor of the William Allen Survey placed its N.E. corner in the South line of the William Stephenson League (Point C), which finding eliminated the claimed vacancy.
Judgment was entered for appellees, and the State of Texas appeals to this court on 7 Points, the first 6 of which contend that there was no evidence or insufficient evidence to sustain the finding of the jury.
The question for determination therefore is whether or not there was sufficient competent evidence to sustain the jury’s finding that the 'N.E. corner of the Wm., Allen Survey was located by the original surveyor in the S. line of Wm. Stephenson League.
A review of the record is necessary.
Both appellant and appellees presented a surveyor witness, who had made surveys in an attempt to correctly locate the N.E. corner of the Wm. Allen Survey. Surveyor Foyle testified for appellant and locates the N.E. corner at Point B on the diagram 4020 varas from the point of beginning (Point A). Surveyor Compton testified for the appellees and locates'the N.E. corner at Point C.
The original field notes of the Wm. Allen Survey call to “begin at the SW corner of a Survey made for John Stephenson.” (A common corner between the Wm. Allen and the John Stephenson Surveys and recognized by all surveyors in the vicinity.) “Thence N 44 deg. 41 min. W at 1000 varas a marsh 200 varas wide at 1900 varas Gum Pond 120 vmas wide at 2320 varas Gum Slew 50 varas wide at 2450 varas open prairie at 4020 varas stake in mound.’’
While the original field notes of the Wm. Allen Survey called for it to commence at the S.W. comer of the John Stephenson Survey — the original field notes of the John Stephenson Survey called for that survey to commence at the N.E. corner of the Wm. Allen Survey at a post in mound “Thence S. 44 E. with said Survey 4415 varas to the SE comer of this survey.”
The Allen Survey was shown to have been surveyed in 1838 and the John Stephenson Survey field notes are dated in 1844, with no recital as to the time the survey was actually made. However, since the Stephenson field notes called to commence at the N.E. corner of the Allen, it is obvious (and appellant’s witness surveyor Foyle so testified) that it is doubtful that the' Stephenson was a junior survey.
Delano, who originally surveyed the Wm. Allen in 1838, in 1840 surveyed a division of the John Stephenson Survey having to do with partitioning his estate upon his death, in Tract 4, makes its 2nd call: “for the W corner of the original John Stephenson Survey w