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on a line parallel with its north line, 1,900 | escaped my observation. I certainly did not varas, to place of beginning, and then by con- take notice of the fact that the S. P. R. R. structing the remaining sections of said block Co. survey lines deflected five degrees from 3, from section 2 to 80, inclusive, in harmony the north, south, east, and west course, be with foregoing described courses—that is all cause that fact was not known to me.” Corwest lines N. 5° E., all north lines S. 85° E., win testified he was a land surveyor and all east lines 5° W., and all south lines N. civil gineer; that he began practical sur85° W.—then the lines and boundaries of veying in 1854, was elected district surveyor sections 68 and 71 of said block 3 will be lo- of Travis land district in 1859, and resigned cated as claimed by the defendants, and, if in 1861 to enter the army, was afterwards so located, plaintiff will not be entitled to re- deputy district surveyor of Young, Milam, cover any of the lands described in her peti- Bexar, Palo Pinto, and Jack land districts. tion, except the 56 acres disclaimed by de- A certified copy from the General Land Office fendants.
of the field notes of survey No. 1 in said "Third. It is further agreed that if in con- block 3 was introduced in evidence; the structing section 1, of block 3, T. W. N. G. calls contained therein being as follows: Ry. Co. lands, it is begun at the said south- “Beginning at the S. E. cor. of Sur. No. 71, east corner of section No. 71, S. P. Ry, Co. in name of S. P. R. R. Co. Thence N. 1900 lands, and thence run its first or west line vrs. along line of said Sur. to stake. Thence north, allowing a variation of the needle of E. 1900 vrs. to stk. for cor. Thence S. 9° 15' from magnetic north 1,900 varas, then 1900 vrs. to stk. for cor. Thence W. 1900 run its north boundary line east, at right vrs. to beginning." To this copy of field angles with its west line, 1,900 varas, and notes is attached a copy of a plat of said then south, 1,900 varas, and then west 1,900 block 3, with an arrow thereon indicating varas to place of beginning, allowing at all the meridian, and while the same is upon times the same variation of the needle, and, the scale of only a half inch to the mile, yet using the same variation of the needle, con- it is clearly apparent therefrom that the struct the remaining sections of block 3, from lines of said block as shown on said plat section 2 to 80, inclusive, and tying same to run north and south and east and west, and said section 1, and running their lines north, and south lines of the surveys of S. P. R. R.
do not correspond in course with the north east, south, and west, respectively, then sections 68 and 71, of said block 3, will be locat. Co. block shown on said sketch, which vary ed as claimed by plaintiff, and if so located The east line of survey 71 S. P. R. R. Co. is
five degrees from an east and west course. by the evidence, plaintiff is entitled to recover the land described in her petition, unless depicted as corresponding to the extent of defeated by limitation.
its length with the west line of survey No. 1, “Fourth. It is further agreed that the block 3, and plainly does not run at right variation of the compass needle of 9° 15' on
angles with the north and south lines of which the lands in controversy were actually east lines of all the S. P. R. R. Co. surveys
said survey 71 S. P. R. R. Co. In fact, the located on the ground by recent surveys, and
on this sketch appear to run north and south. used in locating said lands according to both Survey No. 72 S. P. Ry. Co. is depicted as theories or plans hereinbefore outlined, was south of survey No. 71, and as not extending the true and correct variation of the needle.
so far east as No. 71, while in fact the field “Fifth. It is agreed that either party may notes place it north of No. 71, and extending offer any other admissible evidence, to be 67 varas further east than No. 71. The considered upon any and all issues between same error occurs in the sketch with referthe parties."
ence to surveys 69 and 70, 63 and 64, and The N. E. and S. E. corners of survey No. 77 and 78. 71 S. P. R R Co., according to the field The plat of the 50 S. P. R. R. Co. surveys notes, are evidenced by a stake and mound made by H. R. Biberstein shows Bull Head only, and to locate the same and the east creek crossing the S. E. corner of survey 63, line of the survey it is necessary to run the while the sketch places it about a half mile lines as stated in the above agreement. All further south, and the sketch also places of the 80 surveys in block 3 T. W. N. G. Ry. Cedar creek about a mile further north Co. are office surveys, made January 8, 1876, than it appears on Biberstein's plat. The by Dennis Corwin, deputy surveyor of Bexar Corwin sketch contains only that portion district, who up to the time he testified in of the S. P. R. R. co. block located by Biberthis case had never been on the ground stein which lies east of the east prong of where these surveys are located, and who the Nueces, and when so taken alone such did not survey the east boundary line of surveys do not show as plainly the deflection survey No. 71 S. P. R. R. Co., and who, in of five degrees as is shown on the Biberstein explanation of his work and in answer to a plat, on which he has the meridian running question calling his attention to the fact through the portion of the block situated on that the east line of said survey 71 S. P. R. the middle prong of the Nueces, in which R. Co. ran north 5° east, testified as follows: portion most of the surveys are located on a “The deflection of five degrees from the due east and west course. The difference cardinal points, or from the north and south, between the east and west lines of the sur
veys located on the middle prong and those , but the further you got away from your on the east prong is very marked; but, the beginning point the greater the difference. lines running north and south being short, Upon cross-examination he was shown anoththe difference is hardly noticeable. Survey er map, but the record does not disclose No. 2, block 3, begins at the N. E corner of what map, and it is difficult to arrive at No. 1, running east 1,900 varas, then south, what he did testify concerning same. west, and north, each call being for 1,900 Five degrees difference in course will
Surveys 3 to 80 same block in their make a difference of 165 varas in a mile. consecutive order tied to the preceding sur- Survey No. 1, in block 3, is the N. W. corner vey, with all lines 1,900 varas, the courses of the block,, which runs east 10 miles and east, south, west, and north, with no calls south 8 miles, and on the "Corwin sketch" for any object, natural or artificial, on the is depicted as a square with the exception ground, except the first call in the field notes of survey No. 80, which falls below the 8of No. 80, which reads: "Beginning at S. E. mile tier of surveys because the sixth tier corner Sur. 79; thence S. cross creek 1900 contains only 9 surveys, one being omitted vrs. to stk." This circumstance is given no on the west evidently for fear of a conflict, weight by either party, and probably OC- as an S. P. R. R. Co. survey is shown on curred because the sketch places survey 80 such sketch to extend east so as to conflict on Cedar creek as it is erroneously indicated with block 3 if the sixth tier was filled out. on said sketch.
On the map used in the Land Office prior The Biberstein plat of the 50 S. P. R. R. to 1883, block 3 is given the same shape as Co. surveys was filed in the General Land in the Corwin sketch. On the map dated Office August 3, 1874. Survey 71 S. P. R. R. March 1883, survey No. 21 in the third tier, Co. was patented February 7, 1881. Sections instead of being south of No. 20, is south of 1 and 71, block 3, were patented April 8, No. 19, and from then on the block extends 1876. Section 68, block 3, was patented July a mile further east than in the Corwin 5, 1888. The locative calls contained in the sketch; but the section at the west end of patents correspond with those of the field the sixth tier is left vacant as in the Corwin notes hereinbefore stated.
sketch, dropping survey 60 to the next tier A copy of the map of Edwards county of surveys. It follows that upon the Land used in the General Land Office prior to Office map of 1883 surveys 68 and 71, the 1883 is in evidence, which indicates clearly location of which is involved in this suit, that the east and west lines of block 3 are are located a mile east of their location as not considered to be upon the same course indicated by the "Corwin sketch." No exas the east and west lines of the S. P. R. R. planation of this is made, nor are the field Co. block, and indicates that said block 3 notes of the block given in detail, but merely was laid off so as to have its lines run north, the statement that each survey ties onto east, south, and west. It, however, does not its preceding one. We assume from the show where block 3 ties onto the S. P. R. R. agreement that the field notes locate the Co. block, there being an apparent vacancy surveys as shown by the Land Office map between survey No. 1, block 3, and surveys of 1883. 72 and 77 S. P. R. R. Co., and the S. W. Considerable evidence was adduced by corner of survey 1, block 3, being opposite which appellees sought to show limitation, the S. E. corner of survey No. 72 S. P. R. R. but the court held the same insufficient to Co., and approximately 950 varas north of raise the issue, and, no question being raised the S. E. corner of survey No. 71 S. P. R. R. involving the correctness of such ruling, we Co.
will not make any findings in regard to A copy of the map used in the General such testimony. Land Office, dated March, 1883, is also in evidence, which indicates by dotted lines a
Opinion. slight conflict between survey No. 1, block Appellant contends that the question of 3, and surveys 71 and 72 S. P. R. R. Co., the location of the surveys in question, under and shows clearly that the lines of block 3 the agreement and the evidence, was one are not considered as running on the same for the court and not for the jury, and this course as those of the S. P. R. R. Co. block, view is also entertained by appellees as but as running according to the calls of the shown by their subcounter proposition to field notes.
the proposition submitted by appellant under Appellees' witness Gray, a surveyor, be the first assignment of error. Under the ing shown the sketch attached to field notes agreement and the evidence, we are of the of survey No. 1, block 3 (called the Corwin opinion that the location of the surveys in sketch), testified it was on the scale of question became one for the court, and will about one-half inch to the mile; that on therefore consider the question whether a such a scale the difference between lines verdict should have been instructed for aprunning astronomically north and those run- pellant. ning 5 degrees east of north would not be  There is nothing ambiguous on the much to the ordinary eye; he thought it face of the field notes of survey No. 1, block could not be detected; that it would not 3, but when it is sought to apply the calls to that is, they conflict with each other, and sider the sketch attached to the field notes it becomes necessary to disregard either the of survey No. 1, as well as the field notes north course or the east line of survey No. of the entire block of which survey No. 1, 71 S. P. R. R. Co. In such cases in order both by description and by the sketch, conto determine the conflict and show what land stitutes a portion. We have here a block was actually intended to be embraced in the of 80 surveys platted upon the sketch which survey extrinsic evidence may be resorted beyond a doubt indicates the lines as runto. Sloan v. King, 33 Tex. Civ. App. 537, ning in accordance with the cardinal points 77 S. W. 48; Hamilton v. Blackburn, 43 of the compass, the field notes of said block Tex. Civ. App. 153, 95 S. W. 1097.
containing 320 calls, all of which are either  When the S. E. corner and the east for north, east, south, or west. This block line of No. 71 S. P. R. R. Co. are located runs east 10 miles, and it is in evidence that by running course and distance from its s. a divergence of five degrees between two W. corner, and we then begin at such S. E. lines makes a difference of 165 varas be corner to apply the field notes of survey No. tween the two lines for each mile traversed, 1 to the ground, we find that it is impossible so that in laying out this block, if all courses to run with the east line of said survey No. were changed to read 5 degrees variant 71, and at the same time to run north, be from the cardinal points, the S. E. corner cause such east line runs N. 5° E. and the of the tenth section would be 1,650 varas divergence between the two lines at the end distant from where it would be located if of 1,900 varas is 165 varas. As the two calls the line is run east. Certainly no surveyor lead to different results, one or the other was of 22 years' experience could intend to approinserted by mistake, and the one inserted by priate and have patented land not described mistake should be disregarded. All rules re- by him in his field notes, and to locate lating to the comparative dignity of calls which something would have to be read into are designed to aid in determining which each patent. On the other hand, it is concall or calls of a survey were made by mis- tended that the surveyor intended the west take; but in passing upon an office survey, line of survey No. 1 to run with the east where there are no footsteps of the surveyor line of survey No. 71, as shown by his field to follow, the rules relating to actual sur- notes, and that he did not intend to approveys are frequently not applicable.
priate any land lying west of said line. It In the case of Boon v. Hunter, 62 Tex. is safe to assume that a surveyor never de588, the court said: “It is, however, not liberately or intentionally locates a survey believed that the same rules in regard to so as to conflict with a prior survey unless the lines or corners of other surveys called he believes the former location to be invalid. for in a patent can be applied, when it clear. These conflicts usually occur by mistake or ly appears that no actual survey was ever inadvertence, and in this case it appears made, and in such case it becomes necessary that the surveyor was very careless in using to look to all matters of description contain a defective plat of a portion of the S. P. R. ed in the patent, in order to determine what R. Co. survey as a basis for his work, and particular land was conveyed and intended it further appears reasonable that such plat by the state and the grantee to be conveyed was not made from the field notes as, in by the patent. If, in such a case, from a addition to the mistakes in the numbers of consideration of all these, in connection the surveys, it also has the location of the with the facts surrounding the parties, and two creeks essentially wrong. It is likely the transactions to which the parties looked it was carelessly copied from the Biberstein at the time the patent was issued, the thing plat or some other map. Having such basis, granted can be with certainty identified, showing survey 71 to extend further from then the grant ought not to be held void ; the river than 72, he adopted the S. E. corner but such matters of description as were evi- of No. 71 as his beginning point, oblivious, dently given by mistake should be disregard- doubtless, of the fact that by so doing his ed, and effect given to the calls which are survey would conflict with survey No. 72, certain and are found, which, in connection even if a conflict were avoided with No. 71. with others matters of description contained It appears that he not only had failed to in the grant, will make it conform to the prepare himself with the necessary data evident intention of the parties.”
for accurate work, but that he did not have Again, in the case of Sloan v. King, supra, in mind the fact that the east line of No. the court, citing many cases in support of 71 S. P. R. R. Co. ran N. 5° E., or he would its statement, said: “It follows, therefore, not have called to run his lines north, east, that whenever the evidence is sufficient to south, and west. With careless or hasty induce the belief that the mistake is in the work it was much easier to overlook the call for the natural or artificial objects and course of such east line than to make a misnot in the call for course and distance, the take of five degrees in the courses of 320 latter will prevail, and the former will be lines. We think the evidence conclusively disregarded.”
shows, even without his testimony to that  In passing upon the question of which effect, that at the time he did this work he call in this case was made by mistake or in- did not know that the east line of No. 71 S. advertence, it is, of course, proper to con- | P. R. R. Co. ran N. 5° E. While he had opportunity to know such fact and should jected to that such was our meaning, but have known it, yet he undoubtedly did not make this statement because appellees proknow it, or he would not have made his field fess a fear that we assumed from the agreenotes read as they do, nor made his sketch ment the survey lines should be run accordas he did. No surveyor would regard a ing to the cardinal points of the compass indifference of five degrees in course as too in- stead of with a deflection of five degrees consequent to mention. In fact, the course from such cardinal points. is of necessity accurately stated, or else the Appellees also infer, from our describing, whole science of surveying would fall and in our findings of fact, the Land Office maps interminable confusion result.
introduced in evidence, that we gave great We cannot agree that the law permits this weight to such maps in determining the isblock of 80 surveys to be reconstructed upon sues in this case. The Supreme Court held a different course than that called for in the these maps admissible in this case "for whatfield notes merely because a call was made ever they might be worth as throwing light for the first line to run with an unmarked on or as corroborative of the location of the line of which it is plain the surveyor did not land in suit as originally fixed and placed.” even know the course, but assumed it was The opinions upon the former appeal do north. For appellees to win, it becomes nec- not disclose that the question was raised essary to change each call in the 80 surveys; whether block 3 should be laid out according but if we change the first call by striking to the cardinal points of the compass or by out the words "along line of said survey,” lines variant five degrees from such points ; the entire block can be laid out according in fact, it appears that the only question was to the calls of the field notes and patents whether the evidence was sufficient to show for course and distance, leaving a slight the location of survey No. 71, and it was conflict between survey No.1 and No. 71 S. P. held that it was not sufficient because the R. R. Co., and increasing the conflict between field notes connecting it with the beginning said survey No. 1 and survey No. 72 S. P. point of the block were not introduced, but R. R. Co., which would exist under the other merely the maps. Such maps being held adtheory. This conflict amounts to very little missible by Supreme Court and being adwhen considered in connection with the total mitted in evidence, we described the same in acreage laid out, and, while there is no evi- our findings of fact, though of the opinion dence of conflicts caused if the block be laid that as the case is made by the agreement out according to appellees' theory, it is safe filed herein they have no probative value to assume that when such block is depicted "as throwing light on or as corroborative of on the maps in use in the General Land of the location of the land in suit as originally fice as laid out north and south and east and fixed and placed.” west, a change as material as the one pro- Counsel for appellees have much to say posed would result in conflicts.
concerning the question whether "north"  We are of the opinion that the court means according to the true meridian or acshould have instructed a verdict for appel.cording to the magnetic meridian, and say lant, and the judgment of the trial court is we assume that it means according to the reversed, and judgment here rendered that true meridian. They have signed an agreeplaintiff recover the land sued for by her. ment filed in this case, by which it is proJudgment reversed and rendered.
vided that the lines of survey 71 S. P. Ry.
Co. are correctly located by running upon a On Motion for Rehearing.
variation of go 15' E. and that the lines of Appellees complain of the assumption in block 3 are to be run upon the same variaour findings of fact that surveys Nos. 68 tion, so far as locating surveys 68 and 71 is and 71 are located as shown by the Land concerned. We are not informed whether by Office map of 1883, which assumption was using the variation agreed upon they sought based upon the written agreement filed in to locate the lines according to the true methe case, and related solely to the question ridian, or whether they estimated that such whether these surveys are located by the a variation was required in order to locate field notes in the ninth or tenth tier of sur. the surveys where a survey according to the veys east of the beginning point of the block. magnetic meridian, if made in 1876, would If located in the tenth tier, a change of five have placed the surveys. However, as apdegrees in the course would throw the sur- pellees in their motion for rebearing repeatveys further south than if in the ninth tier, edly assume that the east line of survey No. and from the clause in the agreement which 71 S. P. Ry. Co. is a line running five deshows the relative positions survey No. 71 grees east of the sidereal north, we infer would occupy under the two theories we con- that the variation was agreed upon for the cluded the field notes must have placed the purpose of running the lines on the basis two surveys in the tenth tier, and therefore of the true meridian, either in accordance as depicted on the map of 1883, instead of with the cardinal points of the compass or as on the previous map and the Corwin variant five degrees therefrom. The discussketch. We think it obvious from the con- sion in regard to whether survey lines should
magnetic meridian is foreign to the issue in, as all of his training forbade such course. this case. The issue as made by the agree He is bound to have known that a difference ment is whether the lines of block 3 (using of five degrees in the course would make a a variation of go 15' E.) shall be run accord-difference of 165 varas in a mile. He calls ing to the cardinal points of the compass or for the west line of survey No. 1, block 3, to by courses varying five degrees from such run north with the east line of survey No. points. Appellees' real contention is that 71 S. P. Ry. Co., which line was not lo “north" does not necessarily mean north, but cated on the ground, but was to be located may mean about north, or in a northerly on a course running N. 5° E from the S. E. direction, and that in this case in the call corner, which was also not located on the for the beginning line of survey No. 1, block ground, but to be located by running course 3, it means N. 5° E., and that each other and distance from the S. W. corner of sur. course called for in the field notes of the vey No. 71. He had never been on the block must be construed to be five degrees ground, but the field notes and a sketch of variant from the course actually mentioned. the S. P. Ry. Co. block were on file in the Land Several cases are referred to in support of Office. The fact that he failed to call for this theory, but all are very different from the west line, survey No. 1, to run N. 5° E., this case.
The case of Grace v. Walker, 95 in itself indicates that he overlooked the Tex. 39, 64 S. W. 930, 65 S. W. 482, which fact that the line of survey 71 was to be 10appellees contend is virtually overruled by cated by that course; but his sketch and us, was one involving the construction of an his other calls in the field notes of the so agreement to donate land for a road. Cer- surveys make it very clear that he overtain landowners made a proposal for a looked, or did not know, that the east line of change of road which was accepted by the survey 71 S. P. Ry. Co. was to be located by city council by the adoption of an ordinance running N. 5° E. Appellees infer, from the making the change and describing the road. fact that we lay little stress upon the tesThe owners agreed to donate a strip of land timony of Corwin to the effect that he did 40 feet wide along the lines of their lands. not know of such deflection in the east line The call construed by the Supreme Court of survey No. 71 S. P. Ry. Co., that we con. read as follows: “Hence north along Ken- sidered such testimony inadmissible. nedy's and C. D. Grace's west line to J. I.  We think the knowledge of the person Chenowith's S. E. corner.” Said line was making the calls in a deed or in field notes, not a true north line, and it was contended with respect to facts having connection with that the description in the ordinance could his survey, is admissible as a circumstance not be applied because a north course would to be considered with the other evidence in pass through Grace's land instead of along determining what he meant by language his line. The court held that the call for used by him, and do not agree with appelnorth gave only the course which was con- lees that such testimony constitutes a state trolled by the calls for Grace's west line and ment of what he intended to do, or of what Chenowith's southeast corner.
he did not intend to do. However, we think The written descriptions in a deed are to the evidence, aside from his testimony, plainbe construed in the light of the facts known ly showed that at the time he made the ofto and in the minds of the parties at the fice survey he either had not examined the time, and with reference to any facts or field notes of survey 71 S. P. Ry. Co., or monuments on the ground, which are re- that he had not noticed or remembered the ferred to in the deed. It was apparent in deflection in the course of the east line. said case that all the parties knew exactly The words “north,” "east," "south," and where the lines were, and intended the road "west” mean due north, east, south, and to run with such lines at a width of 40 feet, west, and when applied to courses of lines and that the word "north" used by the city cannot be discarded or given a different council did not express the meaning of the meaning unless used in connection with calls parties, but was used mistakenly for the pur- for specific objects or lines, which, in view pose of expressing the idea of a general of all the facts, more certainly locate the northwardly direction. The calls for the lines in accordance with the true intent of lines expressed the true intent of the parties the party using the language than the calls and controlled the call for a north course for course. which was used mistakenly.
The survey of the 80 surveys constituting In this case we find the words "north," block 3 being considered as one survey, it is “east," "south," and "west," each used 80 apparent that, by letting the courses given times by a practical surveyor of long ex- for all lines control the call for a portion of perience, who was preparing field notes of 80 an unlocated line of another survey, the sections of land, upon which field notes pat- true intent of the surveyor will be arrived ents should issue containing as a means of at, and that is the object to be attained. identifying the land the field notes so pre- We will also say that had the east line of pared by him. It is safe to say he would S. P. Ry. survey No. 1 been located on the not lightly use the words "north," "east," ground and known to the surveyor, and call“south," and "west," in any inexact sense, ed for by its correct course, and yet all