Giraud v. Huffman (46 S.W.2d 367, 1931)

GRAVES, J.

This much of the statement made in the brief of plaintiffs in error, slightly changed for greater accuracy, is adopted as correctly outlining the general nature and result of the suit below:

“Plaintiffs in error filed this suit to recover the title to and possession of the A. B. Langerman 434-acre survey lying partly in Brazoria and partly in Fort Bend counties, 109.65 acres of it being claimed to be situated west of and adjoining Sections 58 and 68, H. T. & B. R. R. Co. Survey, owned by defendant in error. Plaintiffs in error introduced in evidence a patent from the State of Texas to F. M. Giraud, assignee of the A. B. Langer-man, and by proper evidence connected themselves with the title to the land from'the sovereignty.

“Defendant in error, after disclaiming all the land sued for except such 109.65 acres, sought to defeat plaintiffs in error’s alleged title to that by attempting to show that there was no vacancy west of Sections 58 and 68 and east of the William Hall and William Pettus surveys, and that therefore the patent issued to F. M. Giraud was void.

“The patent to F. M. Giraud was issued on the 20th day of December, 1890.

“Defendant in error deraigns title to Section 58 through mesne conveyances from a patent issued on June 11, 1897, and deraigns title to Section 68 through mesne conveyances from a patent dated October 15, 1894, both junior to Langerman patent.

“Sections 58 and 68 both have their full quantity of land, as likewise have the William Pettus and William Hall, or river surveys, all of which is undisputed. The defendant in error is claiming that the north line and the south' line of Sections 58 and 68 should go to these river surveys, basing his claim upon a lot of old surveying.

“Defendant in error also introduces-a lot of old plats from the Land Office, which plaintiffs in error contend show no connection whatever with the present title to the Sections- 58 and 68, or with the Langerman survey.

“Plaintiffs in error properly objected to the introduction of all such matters, surveys, field notes, plats, etc., which were made prior to the time of issuance of patents to said Sections 58 and 68 and to the Langerman survey.

“The court overruled plaintiffs in error’s said objections, admitted the testimony, and rendered judgment for defendant in error for so much of the Langerman survey as lies west of said Sections 58 and 68; to all of which plaintiffs in error duly excepted, and gave notice of appeal to this honorable court.”

The learned trial court filed these material findings of fact and law:

“Findings of Fact.

“I. I find from the evidence adduced in this case as a fact that the tier of Section surveys along the east end of the older river leagues, being Sections Nos. 67, 68, 68, and 69, H. T. & B. R. R. Oo. Surveys and contiguous sections in the same block of surveys, to have been originally located, surveyed and blocked by Will Powers, as District Surveyor, Brazoria District, in April, 1862; all of which surveying was a part of the same surveying, done at the same time, or approximately the same time, the field notes of which call to adjoin said old river leagues, as well as for corners and east line same, and call for, tie and blocked with each other, as disclosed in the original field notes -of said surveys as certified by the said Will Powers, as District Surveyor, as same appear of record in the original survey- or’s records of Brazoria County, Texas, to- . gether with certified blue print copy of original map by Will Powers, dated July 4, 1862, marked Defendant’s Exhibit No. S, from the archives and records of the General Land Office of the State of Texas, and the certified blue print copy of original map by Will Powers, dated Feb. 4, 1862, marked’ Defendant’s Exhibit No. 2, from files of the General Land .Office of the State of Texas, together with certified copy of vellum map dated in the year 1873, marked Defendant’s Exhibit No. 2, from the files of the General Land Office of the State of Texas, together with illustrative map, marked Defendant’s Exhibit No. 19, all of which was introduced in evidence by defendant, and are hei'e referred to, adopted and made a part of this finding; together with the Patents issued by the State of Texas, covering said Sections Nos. 67, 58, 68 and 69, as introduced in evidence by the plaintiff.

“II. I further find as a fact from the original field notes introduced in evidence as made and certified by the locating surveyor, Will Powers, in April, 1862, that Section No. 57 calls ‘to. begin at a Cedar Stake at the S. E. Corner of the Pettus League, and to run North along the East line of that league to a Cedar Stake marked with ⅜-- on the east line of said league,’ giving the other three calls the same length and calling for'the N. W. and S. W. corner of Section 56 on the East side; and that Section '58, which lies immediately North of Se’Ction No. 57, ‘begins at the N. W. corner of 57 on the East line of the Wm. Pet-tus League at a stake marked-’ calling for the same stake as in the foregoing filed notes of No. 57; runs thence N. 950 varas calling to pass the N. E. comer of the Pettus League at 450 varas; thence E. 1900 varas to a stake crossing a slough at 750 varas; thence S. and W. 1900 varas on each call, for the corner of Nos. 56 and 57, this survey bearing same date as the other. The surveyor, Will Powers, while not specifically calling for the east line of the Wm. Hall, begins by saying: ‘Said survey No. 68 is situated in Brazoria County, on the headwaters of Chocolate Bayou west of Section 67. and east of the survey of one league for William Hall.’

“Beginning at the S. W. corner of 67 at a live oak stake marked TC; thence W. 1900 varas crossing a prairie slough at 1150 varas to a stake on east line of Wm. Sail, thence north 1900 varas to a hole and mound passing Hall’s N. B. cor. at 1020 va/ras where stands a cedar post 6 in. in