Opinion
No. 154.
May 30, 1917. Rehearing Denied June 13, 1917.
Appeal from District Court, San Augustine County; A. E. Davis, Judge.
Trespass to try title by J. H. Miller against the Houston Oil Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed.
Parker Kennerly and Fred L. Williams, all of Houston, and H. O. Head, of Sherman, for appellant. Denman Thomas, of Lufkin, and John F. McLaurin, of San Augustine, for appellee.
This is a suit in trespass to try title, brought by appellee, J. H. Miller, against the appellant, Houston Oil Company of Texas, and in which suit, the plaintiff pleaded the three, five, and ten year statutes of limitation, and sued to recover the Green Lane 160-acre pre-emption, located in San Augustine county.
The main question involved in the case is the true location of the Green Lane 160-acre pre-emption, owned by appellee, and the true location of the Gulf, Colorado Santa Fé section No. 1, owned by appellant; the contention of appellant being that an extension of the south boundary line of the Gulf, Colorado Santa Fé section No. 1, east of the Francis Hill west line, is the true south boundary line of the Green Lane 160-acre pre-emption survey, and an extension of the most eastern line of the Gulf, Colorado Santa Fé section No. 1 south forms the true east boundary line of the Green Lane, and that the west boundary line of the Francis Hill survey forms the most eastern boundary line of Gulf, Colorado Santa Fé section No. 1, and the east boundary line of the Green Lane survey. Opposed to this, the appellee contends that the Green Lane 160-acre pre-emption, as originally located on the ground by the surveyor Roberts in 1855, lacks about 300 varas of reaching the Francis Hill survey on the east, and about 300 or 400 varas of reaching the extension of the south boundary line of the Gulf, Colorado Santa Fé section No. 1 on the south. The following plat will assist in showing more clearly the contentions of the parties:
Corners marked "X" mark the location of the Green Lane survey, as claimed by appellee; and corners marked "O" mark the location of the Green Lane survey, as claimed by appellant. It will be noticed that the north line of the Green Lane survey, as claimed by appellant, runs through both fields of appellee, and through his house; there being a little more improvement north of this line than south of it.
The Gulf, Colorado Santa Fé section No. 1 is a 640-acre survey, and was patented on May 16, 1882. This patent calls to begin at the northwest corner of the Francis Hill survey, and then calls to run south, 1,420 varas to the northeast corner of a survey of 160 acres made for Green Lane, and at this point calls for a stake, and a red oak, marked X, bearing south 10 degrees east 9 varas; thence west with said Lane's north boundary line 950 varas to his northwest corner on two pines, both marked X; thence south with some 950 varas to his southwest corner on A. D. Bateman's north boundary line, a post oak marked X bears east 3 varas.
From this much of the description in this patent to the Gulf, Colorado Santa Fé section No. 1 it is plain that at the time of its issuance it was believed and understood that the Gulf, Colorado Santa Fé section No. 1 and the Green Lane 160-acre pre-emption joined the Francis Hill survey on the west and the Bateman survey on the south.
From a careful examination of the record, however, we find that the evidence clearly shows that there are three lines running north and south, east of the Gulf, Colorado Santa Fé section No. 1, the most westerly of these three lines being, as shown by a preponderance of the testimony, the east boundary line of the Gulf, Colorado Santa Fé section No. 1, as actually run on the ground by the surveyor, though the surveyor, mistaking this line for the west line of the Francis Hill survey, erroneously called the beginning corner of the Gulf, Colorado Santa Fé section No. 1 the northwest corner of the Francis Hill.
Since 1892, when the Green Lane survey was patented, the state issued a patent to C. C. Goodwin to the strip of land lying east of the Gulf, Colorado Santa Fé section No. 1, and the Green Lane survey, between these surveys and the Francis Hill survey, and that strip of land lying south of the Green Lane survey between the Green Lane survey and the Bateman survey.
We also think, and the jury so found, that the true location of the Green Lane survey is where appellee claims that it is. The evidence on this question is of some length, a recital of which we do not think necessary for a proper disposal of this case.
It is well established by the evidence that the Green Lane survey was originally made and located on the ground, where appellee contends that it is, and where Whitton, the surveyor who ran out and made a resurvey of the Green Lane survey on June 9, 1890, locates it, and made the field notes contained in the patent issued on February 13, 1892. Whitton recites in these field notes that the resurvey, as made by him, of the Green Lane survey, is "the same as surveyed June 11, 1855." While this statement in the field notes made by the surveyor Whitton may not have been admissible, we do not think appellant is in a position to complain; as appellant read in evidence the field notes of the Green Lane survey as made by Whitton, which field notes contained the very statement now complained of by appellant as being inadmissible, and which field notes were read in evidence by appellant without exception, objection, or reservation. Appellee also introduced in evidence the patent to the Green Lane survey, which contained this statement, and no objection was made to the admissibility of this statement by appellant at that time.
The evidence abundantly supports the finding of the jury to the effect that the Green Lane pre-emption is located as contended by appellee, and that the Roberts survey or location of the Green Lane survey in 1855 and the Whitton resurvey of the Green Lane survey in 1890 are identical, and the Green Lane survey was originally located on the ground as the field notes contained in the patent place it, by both of said surveyors, and that the Gulf, Colorado Santa Fé section No. 1 is fixed and determined by this location on the ground of the Green Lane survey.
This holding dispenses with the necessity of discussing the questions of limitation presented.
The evidence shows clearly that a short time after the Green Lane survey was run out by the surveyor Roberts in 1855 Green Lane went upon his survey at the point disclosed in the plat, and that he and those claiming through or under him for all these years have lived upon the land and claimed same to the boundaries now claimed by appellee down to the trial.
There being no reversible error pointed out, we are of the opinion that the case should be affirmed; and it is so ordered.
Affirmed.