author: JENKINS, J. KEY, O. J.

text:
    STATE v. POST.
    (No. 5202.)
    (Court of Civil Appeals of Texas. Austin.
    June 18, 1913.
    On Motion for Rehearing, Oct. 22, 1913.
    Rehearing Denied July 1, 1914.)
    On Motion for Rehearing.
    1. Public Lands (§ 175) — Resuevey—Conclusiveness.
    A resurvey of public lands, under Acts 20th Leg. c. 115, authorizing such resurveys, was not conclusive against the state as to the true location of the land owned by plaintiff under a prior grant.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 555-570; Dec. Dig. § 175.]
    2. Public-Lands (§ 175) — Resurvey—Field Notes of Previous Survey — Correction.
    Under Rev. St. 1895, arts. 4130-4141, relative to surveys of public lands, where a resurvey of public land is made under. Acts 20th Leg. e. 115, authorizing resurveys, the surveyor cannot correct the field notes of the previous survey without having the certificate in his hands, unless such survey was in conflict with land previously appropriated, and then only to the extent of such conflict, nor can he include in-the corrected field notes any land not included in the original file or location.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 555-570; Dee. Dig. § 175.]
    3. Public Lands (§ 175) — Resurvey—Field Notes of Previous Survey — Correction— Eeeect.
    Where a state surveyor appointed under Acts 20th Leg. c. 115, surveys patented lands without having the certificate for the same in his hands, the corrected field notes made by him on such resurvey have no force unless the owners of such lands surrender their patents and accept new patents in accordance with the resurvey.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 555-570; Dec. Dig. § 175.]
    4. Public Lands (§ 175) — Resurvey—Patented Lands.
    Where the original surveys of public land left an unappropriated space between two grants, the state surveyor appointed under Acts 20th Leg. c. 115, had no authority to extend the original surveys, so as to include such land, where it did not appear that there were any conflicts or material errors, or attempt to correct conflicts or errors in the original surveys.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 555-570; Dee. Dig. § 175.]
    5. Public Lands (§ 175) — Resurvey—Correction of Field Notes.
    Calls for course and distance in the field notes of a resurvey made of public land by the state surveyor appointed Under Acts 20th Leg. c. 115, may, in a proper case, be extended and varied to fulfill other calls in its field notes, but not to satisfy the calls in a junior survey.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 555-570; Dec. Dig. § 175.]
    6. Public Lands (§ 175) — Resuevey—Field Notes.
    In the absence of natural or artificial marks called for in the field notes, showing error in course or distance, and in the absence of proof as to how surveys were actually made, the lines must on a resurvey by a state survey- or appointed under Acts 20th Leg. c. 115, be run out course and distance from known corners with which they connect by their callings.
    [Ed. Note. — For other cases, see Public Lands. Cent. Dig. §§ 555-570; Dec. Dig. § 175.]
    7. Public Lands (§ 172) — Commissioner — Authority.
    A commissioner of the land office has no authority except that conferred on him by law.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 523-543; Dec. Dig. § 172.]
    8. Public Lands (§ 175) — Resurvey—Commissioner oe Land Oeeice — Authority.
    The power conferred' on the commissioner of the land office by Acts 20th Leg. c. 115, to have lands in which the state is interested resurveyed to correct errors in previous surveys, does not authorize him, by proving erroneous surveys, to change the lines and corners of patented surveys, so as to include therein land not included in the field notes of such patented surveys, as originally run and patented.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 555-570; Dec. Dig. § 175.]
    9. Public Lands (§ 175) — Resurvey—Disposition.
    Since all public lands in-the state were set aside to the school fund by the act of 1900 (Acts 26th Leg. 1st Called Sess. c. 11), a resurvey in 1905 and 1906 of public lands by a state surveyor appointed under Acts 20th Leg. c. 115, so as to include unappropriated lands in á patented survey by extending the lines thereof beyond their original location, constitutes a giving away of such lands in violation of Const, art. 7, § 4, prohibiting the disposition of lands set apart for the public free school fund, except by selling same.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 555-570; Dec. Dig. § 175.]
    10. Constitutional Law (f 48) — Presumptions as to Validity of Statute.
    It will not be presumed that the Legislature intended an act to be so construed as to render it unconstitutional.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 46; Dee. Dig. § 48.]
    11. Evidence (§ 23) — Judicial Notice — Ownership — Public Lands.
    The courts will take judicial notice of the fact that the state was originally the owner of all lands in Texas, not granted by the government of Spain, or Mexico, or the Republic of Texas, prior to the organization of the state.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 29, 30; Dec. Dig. § 23.]
    12. Boundaries (§ 33) — Evidence—Burden of Proof.
    He who claims land by virtue of a grant from the state, when the boundaries are in issue, must prove, not only the grant, but the location of such boundaries, and that the land in controversy is included therein.
    [Ed. Note.- — For other cases, see Boundaries, Cent. Dig. §§ 146-152; Dec. Dig. § 33.]
    Appeal from District Court, Travis County ; Geo. Calhoun, Judge.
    Action by C. W. Post against J. T. Robinson, as Commissioner of the General Land Office, in which the State intervened. From a judgment for plaintiff, the State appeals.
    Reversed and rendered on rehearing. Certified question answered by Supreme Court (169 S. W. 407).
    B. F. Looney, Atty. Gen., and G. B. Smedley, Asst. Atty. Gen., for tbe State. Jno. P. Marrs, of Post City, and Gregory, Batts & Brooks, of Austin, for appellee.

       For other oases see same topic and section NUMBER in Dee. Dig. & Am. Dig.. Key-No. Series & Rep’r Indexes

   JENKINS, J.

The following findings of fact and conclusions of law filed by the trial court herein present a fair statement of the nature and result of tbis suit, and the facts proven:

“This was a suit originally instituted by the plaintiff, C. W. Post, against J. T. Robison, as land commissioner of the state of Texas, and J. E. Ketner and E. D. Duncan, and after the institution of said cause the state of Texas, under leave of the court, intervened in this case and asked for the recovery of certain lands from the plaintiff, claimed to be vacant lands and held by the plaintiff, as set out in the state’s plea of intervention filed herein, and for the rental value of said land. And upon the trial of said cause plaintiff in open court dismissed his cause of action as to the defendants J. T. Robison, J. E. Ketner, and E. D. Duncan, and the said defendants Ketner and Duncan, in open court, dismiss their cross-action, filed herein against the plaintiff, leaving the only issue to be tried by the court upon the plea of intervention of the state of Texas against the plaintiff, C. W. Post. Upon the trial of said issue, I rendered a judgment in favor of the plaintiff upon the state of Texas’ cross-action.
“The state of Texas, through its Attorney General, has requested that I prepare and file the findings of fact and conclusions of law on which the judgment was predicated. I accordingly hereby state said findings of fact and conclusions of law as follows:
“Findings of Fact.
“That the original field notes of the survey offered in evidence in this case do cover part, but do not cover all, the lands sought to be recovered by the state under their plea of intervention in this case. That the corrected field notes of the resurvey made by W. D. Twitchell under the direction of the commissioner of the general land office, under and by virtue of the act of 1887, fully cover all the lands sought to be recovered by the state in this cause in the plea of intervention. That the said W. D. Twitchell, prior to the survey of the land in controversy in this cause, by him, was duly and legally appointed by the then land commissioner of the general land office as a state surveyor for the purpose of ascertaining the conflict and errors in, and making proper corrections of, surveys of land. made for the commission (common) school, university, or asylum funds or other surveys in which the state might be interested directly or indirectly. That the said W. D. Twitchell made and executed a bond in the sum of $10,000, conditioned and payable the same as bonds of county and district surveyors, and that said bond was duly approved by the then commissioner of the general land office, and that the said Twitchell took the oath prescribed by the Constitution for other officers, and qualified as a state surveyor. That the resurvey of the lands in controversy in this cause by the said W. D. Twitchell was made by the request and upon the application of the owners of the lands. And that the said owners paid all of the expenses incurred in making-such corrected surveys of said lands. And that, in making said resurveys of said lands, the said W. D. Twitchell acted under the control and direction of the then commissioner of the general land office, and said survey was made by the said W. D. Twitchell in accordance with and according to the instructions in writing given by the said land commissioner. That, after making said survey as aforesaid, ■ the said W. D. Twitchell returned the field notes of the survey or resurvey as made by him to the general land office, and the said field notes, when so returned to the land office, were adopted and approved by the commissioner of the general land office, and thereafter- the land commissioner forwarded to the surveyor of the county in which said lands so resurveyed by the said Twitchell as aforesaid lay, certified copies of said field notes and said field notes were duly recovered (recorded) as a part of the records of said surveyor’s office.
“Conclusions of Law.
“The Act of 1887, p. 107, provides that for the purpose of ascertaining the conflicts and errors in and making proper correction of surveys of lands made for the common school, university, or asylum fund, or other surveys in which the state may be interested, directly or indirectly, in cases where, from discrepancies or imperfections in field notes, it may become necessary for the proper compilation of maps, or for the proper location and identification of said lands upon the ground, the commissioner of the general land office is hereby invested with full power and authority to have such surveys made as he may deem necessary and to appoint competent surveyors for this purpose. And said act further provides that any survey- or appointed under the provisions of this law shall make and execute a bond in the sum of $10,000, conditioned and payable the same as bonds of county and district surveyors; that he shall also take the oath prescribed by the Constitution for other officers, said bond to be approved by the commissioner of the general land office, and shall be conditioned as other surveyors’ bonds. It also provides that said surveyor shall be under the control and direction of the commissioner of the general land office, and, under such direction, may survey the common school, university, and asylum lands, or other lands in which the state may be interested,' and prepare and return field notes of same and certify to any and áll facts and generally do and perform such official acts as might lawfully be done by a county or district surveyor-, and shall sign his name officially as ‘state surveyor.’ Said act also provides that the commissioner of the general land office may have any lands belonging to the common school, university, or asylum fund, or other lands in which the state may be interested or lands alternating therewith, surveyed or resurveyed, and field notes oí- corrected field notes of same returned to his office by any surveyor appointed under this law, which field notes shall have the same force and effect as if made by the county or district surveyor ■ of the county or district in which said land lies; and, upon the adoption and approval .of said field notes by the commissioner of the general land office, he shall forward to the surveyor, of the county or district in which said land lies, certified copies of said field notes, which thereafter shall be a part of the record of said surveyor’s office. In carrying out the provisions of this law, the commissioner of the general land office may, when requested by the owner of lands alternating with the lands resurveyed, under the provisions of this law, cancel patents, and in lieu thereof issue patents in accordance with said resurvey, provided that all such owners shall pay the expenses incurred in making such corrected surveys of their lands, and'in issuing said patents.
“I therefore conclude, as a conclusion of law, that under said statute of 1887, as above set out, the commissioner of the general land office had the right, power, and authority to have said resurvey made by the said W. D. Twitchell, under his control and direction, and, when so made, to approve the said corrected field notes, if found by him correct and in compliance with his direction, and that when said corrected field notes were examined and approved by said land commissioner, and certified copies of the same forwarded to the surveyor of the county in which said land lies, and when made part of the records of said surveyor’s office, said corrected field notes so made, returned, and filed are binding and of full force and effect against all parties affected thereby, including the state, in the absence of fraud or mistake, or the intervening rights of other parties, not parties thereto; and, no fraud or mistake or the intervening rights of other parties having been shown in this case, judgment has been rendered for the plaintiff upon the intervention of the state filed in this cause.
“Geo. Calhoun,
“Judge Fifty-Third Judicial District.”

It is true, as found by the court, “that the original field notes of the surveys offered in evidence in this case * * * do not cover all of the land sought to be recovered by the state.” That is to say, as we understand the evidence, the surveys to the south and west of the alleged vacancies are located upon the ground by established corners, found and recognized by objects called for in their field notes. The only corner in the surveys to the east and north of the alleged vacancies, capable of being identified by objects called for in the field notes, is the Cobb corner, nine miles east of the alleged western vacancy, and ten miles north of the alleged southern vacancy. Such being the case, the proper way to resurvey the lands to the east and north is to begin at said Cobb corner and run out the survey’s course and distance as called for in the field notes. To so run said surveys would leave at least a portion of the land sued for vacant. But the surveyor Twitehell assumed that a series of pits and-mounds extending nine miles north and south were the corners of a tier of said surveys six miles west of the Cobb corner; and, if so, said tier of surveys would be further west and south than course and distance from the Cobb corner would place them by about the width of the alleged vacancy. If we were required to pass upon this as an original proposition from the evidence in the record, we would say that Twitehell made a mistake in locating the surveys east and north of the alleged vacancies; but, as we understand the act of 1887, it does not follow from this that we should reverse the case.

We think the commissioner of the land office was authorized under the act of 1887 to have these lands resurveyed. Gen. Daws 1887, p. 107; articles 5347-5349, B. S. 1911. The state was interested in seeing whether or not there was a vacancy. An -alleged vacancy other than sued for herein, was discovered by Twitehell, and Post bought the same from the state. We concur in the conclusion of law reached by the learned trial judge that the “corrected field notes so made, returned, and filed are binding and of full force and effect against all parties affected thereby, including the state.” The evidence shows that some 10,000,000 acres of land have been resurveyed under this act. Such is the imperfection of surveyors’ compasses, chains, and chain carriers that perhaps not a single one of these resurveys is mathematically correct, and the same would be true if they were again resurveyed. If for that reason they are subject to future correction, there will be no end of litigation with reference to these lands. The purpose of this act was to establish the lines and corners of these lands; this' was intrusted to surveyors selected by the state; and, in the absence of fraud, the state should be bound by their action in the premises.

' The Attorney General contends that, if the action of the state surveyor is to be construed as final, the act of 1887 is unconstitutional, as applied to the facts of this ease, for the reason that, in approving the survey made by the state surveyor, the commissioner of the land office gave to appellee public school land, and that the Legislature had no authority to give away these lands, or to authorize any one else to do so. True, but the Legislature was authorized to ascertain what lands were and what were not school lands. To this end the Legislature was authorized to have surveys made, and to make such surveys- conclusive, where intervening rights of third parties were not involved. Suppose the state had brought suit against the owner of a tract of land to establish the boundaries of such tract, as it has in this case, and the boundaries of such survey had been established by the judgment of a court of last resort so as to include within its boundaries land which was in fact school land. The owner of such survey would have become the owner of the school land erroneously adjudged to be included within its boundaries, not because the court had the right to give away school land, but because it had the power to adjudge that it was not school land. And so in this case appellee must be held to be the owner of the land in controversy, not because the surveyor and the' commissioner had the right to give him school land, but because the Legislature adopted this method of determining whether or not it was school land; and, in the method pointed out by law, it has been determined that the land in controversy is not school land. The method adopted by the Legislature of having the lands resurveyed under the supervision of the commissioner of .the general land office, by.a bonded and sworn surveyor, selected by him, was a reasonable method, for, had these matters been adjudicated in the courts, the location of boundary lines would have necessarily depended upon a resurvey of the lands. We think that it.was the in-' tention of the act of Í887 to make the resurveys made in accordance witJi said act binding upon the state, and that said act is constitutional.

Finding no error in' the record, the judgment of the trial court is affirmed.

Affirmed.

On Motion for Rehearing.

Findings of Fact.

(1)The following map shows the position of the land in controversy, and of the adjoining surveys:

(2) The corner marked “Oobb” is a well-identified' corner. No other corners in the block of surveys lying north or east of the land in controversy can be identified by any natural or artificial objects called for in- their field notes.

(3) The corners marked “Camp Branch,” “Grapevine,” and “B. B.” are well-identified comers. There are other recognized corners in the blocks of surveys lying south and west ' of the land in controversy.

(4) The surveys in the block north and east of the land in controversy show by their calls to have been run from east to west, and are tied by their intervening calls to the Oobb corner. All of said surveys, except Nos. 1413, 1414, 1425, 1426, 1427, 1428, 1429, and 1430, were made prior to the time the surveys on the south and west were made.

(5) The surveys on the south and west were made from the south and west to the north and the east, and there is no dispute in the testimony in the record as to the true location of such surveys. Their boundaries are shown to be as indicated on the above map.

(6) The state surveyor, Twitchell, in 1905 and 1906, under the direction of the commissioner of the land office, who assumed to act under the law of 1887, ran out the surveys indicated on the above map, and extended the surveys on the east and north of the land, in controversy to the west and south, so as to include in said surveys the land in controversy. If said surveys be run from the Oobb comer, course and distance, as called for in their field notes, the western side of said block of surveys will be fixed 104 varas further east than is claimed by the state and shown by said map. This for the reason that Standifer, who made the survey for the state, recognized rocks found at the Northeast and Northwest corners of survey 1255, but not called for in its field notes, as the corners of said survey; thus giving surveys 1255, 1256, and 1257 a total excess of 104 varas. Running out said survey’s course and distance from the Cobb corner fixes the south boundary of said block of surveys as claimed by the state and shown on said map.

(7) Twitchell made said survey at- the request and expense of. the owners of said surveys, but said surveys were all patented at said time, and the patents have never been surrendered for cancellation, and no patents have issued upon Twitchell’s survey.

Opinion.

1. In our former opinion herein we held that the survey made by the state surveyor under the act of 1887 was conclusive against the state as to the true location of the land owned by appellee. A further consideration of the case has led us to conclude that we were in error in the construction that we placed upon said act.

Aside from this fact, when said survey was made, a surveyor could not correct the field notes of a previous survey, without having the certificate in his hands, unless such survey was in conflict with land previously appropriated, and then only to the extent of such conflict, and he could not include in the corrected field notes any land not included in the original file or location. R. S. 1895, arts. 4130 to 4141; Railway Co. v. Thompson, 65 Tex. 186; Adams v. Railway Co., 70 Tex. 252, 7 S. W. 729; Sanborn v. Gunter, 84 Tex. 285, 17 S. W. 117, 20 S. W. 72; Childress L. & C. Co. v. Baker, 23 Tex. Civ. App. 451, 56 S. W. 756. We quote from the last case above cited as follows:

“We think the charge of the court announced with reasonable fairness and correctness the rules of law applicable to the ease.”

While it does not appear in the opinion, the record in the case discloses the fact that the land in controversy had been resurveyed by the state surveyor under the act of 1887; that it was the contention of appellant that the resurvey precluded the state from claiming the surveys in controversy according to the original location; and that the court, among other things, charged the jury as follows:

“The resurvey made by the state surveyor Bong, under the direction of the land commissioner and approved by the land commissioner under the act of 1887, may be considered by you for what you may deem it worth, if anything, in connection with all the other evidence in the case, to enable you to determine where the original survey really placed the land, but for no other purpose.”

Our attention was not called to this case on the original hearing.

2. A state surveyor appointed under the act of 1887 had such authority as had theretofore been conferred by law upon district and county surveyors, and their deputies, and none other, except that at the request of owners of patented lands, alternating with surveys made for the common school, university, or asylum funds, or other lands belonging to the state, or in which the state was interested, he might survey such patented lands without having the certificates for the same in his hands, but the corrected field notes so made by him had no force unless the owners of such patented lands surrendered their patents and accepted new patents in accordance with such resurvey. This was not done in the instant case.

3. The purpose of the act of 1887, in addition to fixing and marking upon the ground the true lines and corners of public lands, so that purchasers thereof could know what they were getting, was, as is declared in the first section thereof, “for the purpose of ascertaining conflicts and errors, and making proper correction of surveys,” etc.

The resurvey as made by the state surveyor Twitchell does not disclose any conflicts in any of the original surveys, and, if any such exist, he did not attempt to correct them. Said resurvey did not. disclose any errors in the original surveys, except excesses in some of the surveys to the west and south of the land in controversy, which errors he did not attempt to correct, and should not have done so as to corners identified by objects found on the ground, and also errors in calls for the corners of other surveys. For instance, the northeast corner of survey 403 calls for the southeast comer of 1326; the northeast corner of 552 calls for the southeast corner of 1,365; the northeast corner of 556 calls for the southwest corner of 1,370; the northeast corner of 561 calls for the southwest corner of 1,372. To have extended these surveys to the corners called for would have materially altered their configuration. For example, the east line of 403 would have been extended 537 varas north and 103 varas east, and the east line of 561 would have been extended 349 varas north and 570 east.

The state surveyor did not correct said surveys calling for said corners by extending them to the corners called for, but extended the surveys called for to the surveys calling for them. Calls for course and distance in the field notes of a survey may, in a proper case, be extended and varied to fulfill other calls in its field notes, but cannot be so extended or varied to satisfy the calls in another and junior survey.

These calls for the corners of prior surveys were calls for open, unmarked prairie corners, and, under the facts and circumstances in evidence, appear to have been made from conjecture, and will not prevail over calls for course and distance. As above stated, they were not attempted to be given effect by the state surveyor, in so far as they affected the location of the surveys in which, such calls were made, but what he did was to extend the surveys to the -north and south of the land in controversy, so as to' make them cover the same. In the absence of natural or artificial marks called for in the field notes showing error in course or distance, and in the absence of proof as to how surveys were actually made, they must be run out course and distance from known corners with which they connect by their callings.

4. The commissioner of the land office has no authority, except such as is conferred upon him by law. Hanrick v. Cavanaugh, 60 Tex. 24; Gaither v. Hanrick, 69 Tex. 97, 6 S. W. 619; N. Y. L. Co. v. Thomson, 83 Tex. 181, 17 S. W. 920; Day v. State, 68 Tex. 553, 4 S. W. 865; Railway Co. v. State, 36 S. W. 116.

Certainly no law prior to the act of 1887 conferred upon the commissioner the power to establish the boundary between land owned by the state and patented surveys by appointing a surveyor and having him run such line, nor did the act of 1887 do so. The power conferred upon him to have lands in' which the state was interested resurveyed, so as to correct errors in previous surveys, did not authorize him, by approving erroneous surveys, to thereby change the lines and corners of patented surveys, so as to include therein land not included in the field notes of such patented surveys as originally run and patented.

5. If the lands in controversy were not in fact included within the bounds of appellee’s patented surveys, as the same were originally made, they were public lands, and if the act of 1887 authorized the commissioner to extend the bounds of such surveys so as to include, in addition to lands within said surveys as" originally made, the land in controversy, such act would be without constitutional authority. Not only' so, but as the resurvey was made in 1905 and 1906, and as all public lands in this state had been set aside to the school fund by the act of 1900 (Acts of 1st Called Sess. p. 31), the Legislature was positively prohibited by the Constitution from disposing of these lands, and from authorizing the commissioner to do so at the time of such resurvey, except by selling the same. Const, of Tex. art. 7, § 4. To include the lands in controversy in appellee’s patented survey by extending the lines thereof beyond their original location is not to sell such lands as required by the Constitution, but is to give them away.

■ It will not be presumed that the Legislature intended an act to be so construed as to render it unconstitutional. But, even if it could be held that the act of 1887 intended to empower the land commissioner to give away public lands under the guise of establishing boundary lines, such act, in so far as it applies to the land in controversy, must be held to have been repealed by the act of 1900 above referred to.

6. It was immaterial, under the construction which we gave to the act of 1887 in our former opinion, whether all or only a part of the land in controversy was not included in appellee’s patented surveys, as originally run, but such fact becomes material under the construction of said act as herein given. We have carefully examined the field notes and the testimony in the-record, and find therefrom that none of the land in controversy was so included in said patented surveys.

7. Appellee contends that inasmuch as' surveys 1430, 1427, and 1428 call to' connect with the surveys to the east, and also with the surveys to the west, they having been made subsequent to the making of the surveys to the east and also on the west, and in each instance .the calls are for unmarked prairie corners, it cannot be told whether the vacancy, if any, is on the east or on the west of said surveys, and that therefore the state had failed to make' out its case as to this tract. The court takes judicial cognizance of the fact that, the state was originally the owner of all lands in Texas not granted by the government of Spain, or of Mexico or the Republic of Texas, prior to the organization of this state.

This presumption makes a prima facie case in favor of the state as to any lands for which it may bring suit, and such prima facie case can be met only by showing a grant to such lands. The state is the common source, and whatever title appellee had must have been derived from the state. State v. Delesdenier, 7 Tex. 96, 97; Hamilton v. State,-152 S. W. 1120. Appellee claimed that land by virtue of his ownership of surveys Nos. 1430, 1427, and 1428. He who claims by virtue of a grant, when the boundaries of the same are in issue, must show the location of such boundaries, and that the land in controversy is included therein.

For the reason above stated, the appellant’s motion for a rehearing is granted; the judgment of the trial court is reversed; and judgment is here rendered for appellant for the land described in its petition.

KEY, O. J.

On account of facts which have come to my knowledge since the former judgment in this case was rendered, I have not participated in the consideration and decision of the motion for rehearing.


source: Caselaw Access Project

author: BROWN, C. J. PHILLIPS, J.

license: Public Domain

text:
    STATE v. POST.
    (Nos. 2592, 3181.)
    (Supreme Court of Texas.
    April 29, 1914.
    On Motion for Rehearing, June 26, 1914.)
    1. Public Lands (§ 175) — Resurvey—Conclusiveness.
    A resurvey of public lands under Acts 20th Leg. c. 115, authorizing such resurveys, was not conclusive against the state as to the true location of the land owned by plaintiff under a prior grant.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. '§§ 555-570; Dec. Dig. § 175.]
    2. Public Lands (§ 175) — Resubvey — Change of Field Notes.
    While the commissioner of public lands may cause patented land to be resurveyed according to the field notes of the original survey, neither he nor the surveyor appointed under Acts 20th Leg. c. 115, can so change the field notes as to embrace land not included in such original survey.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 555-570; Dec. Dig. § 175.]
    Certified Question from Court of Civil Appeals, Third Supreme Judicial District.
    Action by C. W. Post against J. T. Robinson, as Commissioner of the General Land Office of State, in wbieb the State intervened. A judgment for plaintiff was reversed on appeal to the Court of Civil Appeals, which certifies a question to the Supreme Court.
    Question answered sustaining opinion of Court of Civil Appeals (169 S. W. 401), and rehearing denied.
    B. F. Looney, Atty. Gen., and G. B. Smed-ley, Asst. Atty. Gen., for the State. Jno. P. Marrs, of Post City, and Gregory, Batts & Brooks, of Austin, for appellee.

       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   BROWN, C. J.

The Honorable Court of Civil Appeals for the Third Supreme Judicial District certified to this court the following facts found and the question stated:

“This suit was originally instituted by appel-lee, Post, against J. T. Robinson, as commissioner of the general land office of Texas, in which the state of Texas intervened, and sought the recovery from plaintiff of certain land claimed to be vacant. The case was dismissed as to Robinson and certain other defendants, and went to trial'as between appellee, Post, and intervener, state of Texas, and resulted in a judgment in favor of appellee, which judgment was affirmed by this court on the 18th day of June, 1913, and reference is here made to the attached copy of our original opinion for a fuller statement of the issues involved.
“On motion for rehearing by the state, we reversed our judgment of affirmance, and rendered judgment in favor of appellant state, a copy of which opinion is also hereto attached and made a part of this certificate and is here referred to (169 S.'W. 401).
“The case is now pending in this court on motion for rehearing by appellee, Post, in addition to which he has filed a motion to certify, which we have granted.
“Briefly summarized, the facts show that ap-pellee was the ’owner of two blocks of land, one of which was surveyed from the east to the west, and the other from the west and the south to the east and north. If the surveys in these blocks of land be run out as originally located, and their true boundaries thus established, there will exist a vacancy between them, as claimed by the state. In 1905 and 1906 W. D. Twitch-ell, who had theretofore been appointed state surveyor by the commissioner of the land office under the act of 1887 (Acts 20th Leg. c. 115), and who had duly qualified as such surveyor, made a resurvey of these blocks of land under the direction of the commissioner of the land office, extending the sections in the eastern block to the west and south, so as to cover these vacancies. He returned his field notes to the land office, and they were approved by the commissioner and filed in the proper counties, as required by the act of 1S87. All of the surveys owned by appellee had been patented prior to said resurvey. We held on motion for rehearing, as appears from the copy of ■ our opinion thereon hereto attached, that the resurvey made by Twitchell was not binding upon the state, and that the surveys owned by appellee should be run out, 'and their lines and corners located in accordance with their original field notes.”

With the foregoing statement and explanation, the Court of Civil Appeals certifies to the Supreme Court the following question:

“Did this court err in holding that the resurvey made by W. D. Twitchell was not binding upon the state, and that the surveys owned by appellee should be run out and their lines and corners located in accordance with their original field notes?”

The act of the Legislature referred to in the above statement contains the following provisions pertinent to the question certified:

“That for the purpose of ascertaining the conflicts and errors in and making proper corrections of surveys of lands made for the common school, university, or asylum funds, or other surveys in which the state may be interested, directly or indirectly, in cases where, from discrepancies or imperfections in field notes, it may become necessary for the proper compilation of maps, or for the proper location and identification of said lands upon the ground, the commissioner of the general land office is hereby invested with full power and authority to have such surveys made as he may deem necessary, and to appoint competent surveyors for this purpose.”

Section 2 of the act provides for the qualification of the officer, and further enacts:

“He shall be under the control and direction of the commissioner of the general land office, and under such direction may survey the common school, university, and asylum lands, or other lands in winch the state may be interested, and prepare and return field notes of same, ana certify to any and all facts, and generally do and perform such official acts as might lawfully be done by a county or district surveyor, and shall sign his name officially as ‘state surveyor.’ ”

The third section of the act reads:

“The commissioner of the general land office may have any lands belonging to the common school, university, or asylum funds, or other lands in which the state may be interested, or lands alternating therewith, surveyed or resurveyed, and field notes or corrected field notes of same returned to his office, by any surveyor appointed under this act, which field notes shall have the same force and effect as if made by the county or district surveyor of the county or district in which said land lies; and, upon the adoption and approval of said field notes by the commissioner of the general land office, he shall forward, to the surveyor of the county or district in which said land lies, certified copies of said field notes, which thereafter shall be a part of the records of said surveyor’s office. In carrying out the provisions of this act, the commissioner of the general land office may, when requested by the owner of lands alternating with the lands resurveyed under the provisions of this act, cancel patents, and in lieu thereof issue patents in accordance with said resurvey: Provided, that all such owners shall pay the expenses incurred in making such corrected surveys of their lands and in issuing said patents: Provided, that no claims shall be created against the state for services performed under this act in the absence of a previous appropriation therefor.”

It is not claimed that Post has not. under the judgment of the Court of Civil Appeals, all of the lands described in the patents issued to him by the state. His claim is that without paying a cent for the land, and without compliance with any provision of law which regulates the sale of the public land, he became the owner of the land which belongs to the public school fund, by the unauthorized act of a surveyor appointed under the provisions of law copied herein.

Under the act of the Legislature of 1887 to provide for ascertaining and correcting conflicts and errors in surveys “made for the common school fund,” etc., the commissioner of the general land office appointed Twitched. His authority did not extend beyond the ascertainment of the conflicts and errors which may have occurred in the surveying of such lands and any lands “alternating” therewith. The manifest purpose of' the act was to enable the commissioner of the general land office to keep a correct record of said lands, showing their true relations to surrounding surveys. The commissioner -had the power to cause Post’s land to be resurveyed (that is, run out according to the field notes of the original survey); hut neither the commissioner nor the surveyor had authority to so change the said field notes as to embrace lands not included in the original survey.

We answer that the Court of Civil Appeals did not err in holding that the state was not bound by Twitchell’s act, and that court properly entered judgment in favor of the state for the recovery of the land.

The opinion of Associate Justice JENKINS correctly announces the law applicable to the facts of this case, which renders it unnecessary for this. court to add to the authorities cited or to offer additional reasons in support of the judgment of that court. Justice Hawkins did not participate in decision of the question submitted.

On Motion for Rehearing.

PHILLIPS, J.

That part of the opinion in which it is said that the Honorable Court of Civil Appeals properly entered judgment in favor of the state for the land, and elsewhere expressing approval of its judgment, is withdrawn. The question certified did not involve any holding by us in respect to the correctness of the action of the Court of Civil Appeals in rendering the judgment, and I am authorized by the Chief Justice to say that these expressions in his opinion were inadvertently made. We adhere to the answer made to the certified question that the resurvey made by Twitchell was not binding upon the state, and the surveys owned by the appellee should be run and the corners located in accordance with their original field notes.

The motion for rehearing is overruled, but the opinion of the court is corrected in the particular stated.

HAWKINS, J., being disqualified, did not participate in the decision of this motion.


author: KEYS, C. J.

text:
    SCHUBERT v. VOGES et al.
    (No. 5341.)
    (Court of Civil Appeals of Texas. Austin.
    June 17, 1914.)
    1. Continuance (§ 22) — Denial of Application.
    Where the record on appeal contained an unverified application to continue the case because of the absence of certain witnesses, and the transcript showed that such witnesses appeared and testified, the denial of the application could not be held erroneous, especially where the record shows no exception to the ruling.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 58-67; Dec. Dig. § 22.]
    2. Trespass to Try Title (§ 47) — Judgment-Sufficiency.
    In trespass to try title, a judgment establishing, as a boundary line between the property of plaintiffs and defendant, the fence then existing, and decreeing to plaintiffs title to all land north of the fence, sufficiently establishes the boundary.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 69-71; Dec. Dig. § 47.]
    3. Judgment (§ 256) — Verdict — Sufficiency.
    In trespass to try title to land which was inclosed by plaintiffs, a verdict for them, which did not accurately describe the land. in controversy, will sustain a judgment for plaintiffs for the land inclosed, where the verdict could be construed as a finding in plaintiff’s favor either on a question of boundary or adverse possession.
    LEd. Note — For other cases, see Judgment, Cent. Dig. §§ 446-454; Dee. Dig. § 256.]
    4. Appeal and Error (§ 230) — Presentation of Grounds of Review in Court Below — Objections to Instructions.
    Assignments complaining of the giving and refusing of instructions cannot be considered, where appellant did not object before the instructions were read to the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 183-190, 680-682, 751, 819, 876; Dec. Dig. § 230.]
    Appeal from District Court, Hays County; Frank S. Roberts, Judge.
    Action by Albert Voges and another against Martin Schubert. From, a judgment for plaintiffs, defendant appeals.
    Affirmed.
    B. G. Neighbors, of San Marcos, for appellant. Barber & McKie, of San Marcos, for appellees

       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   KEYS, C. J.

Adolph and Albert Voges brought this- suit against Martin Schubert in the form of trespass to try title, and in their petition described the land sued for as follows:

“The most western one-half- of the John Ingram league and labor survey No. 31, situated in Hays county, Tex., said west half of said league and labor being under fence, there being a fence across said league and labor in the center thereof from north to south, said west half containing 2,312 acres more or less, and being the same property conveyed by Mrs. Nannie Cook and Louis Cook, her husband, to Adolph Voges and Albert Voges, by a deed dated June 16, 1908, recorded in volume 54, p. 396, Hays county deed records, which deed and record thereof are referred to and made part hereof. Plaintiffs say that they own and have title to all the land inclosed in their pasture and assert title to every part thereof.”

The plaintiffs specially pleaded title by limitation of three, five, and ten years. The defendant answered by general demurrer, not guilty, and general denial.

At the trial it was agreed between the parties that the plaintiffs have title to the western one-half of the John Ingram league and labor survey, and that the defendant has title to the M. Clark and Harris E. Norton' surveys, in so far as the title of the plaintiffs or defendant has not been lost by limitation; it (being expressly understood that no claim asserted by either ,party through limitation was waived. The Clark and Norton: surveys are older than the Ingram survey, and the latter calls for and connects with the former. The proof shows that the Ingram survey had been fenced for a number of years, and that a cross fence, supposed to be at the center of that survey, extended from north to south, separating the western from the eastern half of the survey.

The plaintiffs put in evidence a deed from Mrs. Nannie Cook and her husband, Louis Cook, to them, dated June 16, 1908, duly acknowledged and recorded, which described the land conveyed as follows;

“All that certain tract or parcel of land situated in Hays county, Tex., and being the most western one-half of the John Ingram league and labor No. 31. This western one-half of said league and labor is under fence, there being a fence across said league and labor in the center thereof from north to south, and the location of the said western one-half is established and identified by such fence, containing 2,312 acres, more or less. This league and labor of land was conveyed to the grantor, Mrs. Nannie Cook, by deed from Helena Landa and Harry Landa, dated July 5, 1901, recorded in volume 41, pp. 497 and 498, deed records of Hays county, Tex.”

The plaintiffs also put in evidence the deed referred to from Helena and Harry Landa to Mrs. Cook, conveying land described as follows:

“Also the John Ingram league and labor, situated in Hays county, Tex., and being the same land conveyed to us by Cohen and other heirs, through the sheriff, W. T. Jackman, by deed dated January 6, .1898, and recorded in the Hays county records for deed in volume 37, pp. 38-41, to which reference is here made for field notes and description.”

They also put in evidence a deed from the sheriff of Hays county to Helena and Harry Landa, dated January 8, 1898, which described the land conveyed the. same as the description in the deed from the Cooks to the plaintiffs. The.proof shows that the Ingram survey was fenced by the Landas after they bought it, and before they sold to Mrs. Cook.

The defendant, Schubert, contends that in fencing the land the Landas extended their fence beyond the dividing line between the Ingram and the Norton and Clark surveys, and placed their fence upon the latter two surveys. So the true location of the line between the Ingram survey on the one side, and the Norton and Clark surveys on the other, was the question of boundary that was litigated. Also, and aside from the question of boundary, the plaintiffs contended that they had title by limitation to all the land inclosed by the fence made by the Landas when they inclosed the Ingram survey, although a part of that land might be upon the Norton and-Clark surveys. The evidence presented but .one question of limitation, and that was under the ten years’ statute, and the court submitted that issue and the issue of boundary to the jury. The jury returned a verdict which reads as* follows:

“We, the jury, find for the plaintiffs, giving them all the land inclosed at time of purchase.”

Upon that verdict the court rendered a judgment, which reads as follows:

“It is therefore accordingly ordered, adjudged, and decreed by the court that plaintiffs, Adolph Voges and Albert Voges, do have of and recover of and from the defendant, Martin Schubert, all of the most western one-half of the John Ingram league and labor survey in Hays county and all lands inclosed around plaintiff’s said pasture as said fence existed on June 16, 1908, at the time of the purchase of said land by the plaintiffs, Adolph Voges and Albert Voges, this being the same fence line now established and existing between the property of plaintiffs and defendant, hereby decreeing to plaintiffs, Adolph and Albert Vpges, title to all the land lying north of and inclosed by said fence as against defendant, Martin ¡Schubert.”

The defendant has appealed and by his first assignment of error complains of the action of the trial court in overruling his motion to postpone or continue the case. The transcript contains an application to postpone or continue the case, which is signed by the defendant’s attorney, but which is not sworn to by any one. The reason for asking the postponement was on áccount of the absence of the defendant and two of his witnesses when the case was called for trial. The record shows that the defendant and both of the witnesses referred to appeared and testified. There is no bill of exception in the record concerning the matter referred to; and, while the judgipent states that the application for a continuance was .presented and overruled, it does not show, nor is it otherwise shown, that the defendant excepted to the ruling. Such being the condition of the record, the first assignment is overruled.

The second assignment reads as follows:

“The judgment and the verdict do not determine the boundary line between the Ingram league and the Norton and Clark surveys.”

That assignment is overruled, because the verdict and judgment, taken together (and especially the judgment), do determine the boundary line referred to. The judgment establishes that line and identifies it by a fence “now established and existing between the property of plaintiff's and defendant” ; and it decrees to the plaintiff's title to “all the land lying north of and inclosed by said fence.” The assignment under consideration does not make, the point that the judgment is not supported by the verdict, because of the fact that the verdict does not sufficiently identify the boundary line in question. But, even if that question were presented, inasmuch as the plaintiffs’ petition described the land in controversy as being inclosed by a fence and within their inclosed pasture, and being the land conveyed to them by Mrs. Cook and her husband by deed dated June 16, 190S, and as the undisputed proof shows that the fence and inclosure referred to existed at the time the plaintiff's purchased the land, and' continued to so exist up to the time of the trial, we are not prepared to say that the verdict, if the latter clause therein was intended as fixing boundary, was not sufficient to support the judgment that was rendered. However, the case involved a question of title independent of the question, of boundary, which was founded upon the plaintiffs’ plea of limitation ; .and it may be that the verdict of the jury was intended as a finding for the plaintiffs upon that theory. In other words, the jury may have reached the conclusion that the plaintiff's, and those under whom they claim, had held such adverse possession to all the land inclosed in the plaintiffs’ pasture as would give them title by the ten years’ statute of limitation, regardless of whether the land was upon the Ingram league or upon some other survey. Hence we hold that the case is distinguishable from Jones v. Andrews, 72 Tex. 5, 9 S. W. 174, Reed v. Cavett, 1 Tex. Civ. App. 154, 20 S. W. 838, and other cases cited in appellant’s brief.

Appellant’s brief contains several assignments complaining of the action of the court in giving and refusing instructions to the jury; but as the record fails to show that the action complained of was excepted to, as required by the act of the last Legislature, those objections must be considered as waived. Railway Co. v. Battle, 169 S. W. 1048, this day decided by this court.

The only other assignment presented in appellant’s brief complains of the verdict as being contrary to law and against the weight of the testimony. That assignment treats the verdict as being founded alone upon the question of boundary, which, as we have heretofore stated, is by no means certain; but, even if it be so construed, we are not prepared to hold that it is without testimony to support it, and therefore that assignment is overruled.

No reversible error has been shown, and the judgment is affirmed.

Affirmed.


author: BROWN, C. J.

text:
    CLINT v. HOUSTON ICE & BREWING CO.
    (Supreme Court of Texas.
    Dec. 22, 1913.)
    Corporations (§ 566) — Insolvency — Receivers— Mortgage Liens — Displacement —Costs and Expenses of Receivership.
    Where receivership proceedings were instituted against a corporation on a junior mortgage, and the holder of the first mortgage was not a party, the court could not lawfully postpone the prior lien to expenses and costs of the receivership; there being no proof that the, corporation was a public one, and that its continued operation was necessary for the convenience of the public.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2283-2286; Dec. Dig. § 566.]
    Appeal from Court of Civil Appeals of Fourth Supreme Judicial District.
    Suit between the Houston Ice & Brewing Company and W. B. Cliñt, as receiver. An order granting a temporary injunction restraining the receiver from selling the property of the Ice & Gin Company of Harlingen, Tex., was reversed and remanded, with instructions on the appeal of the Brewing Company, and the receiver applies for a writ
    of error.
    Denied.
    See, also, 159 S. W. 409.

       For other oases see same topic and section NUMBER : Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   BROWN, C. J.

This application for writ of error is refused because it does not appear from the facts stated that the Ice & Gin Company of Harlingen was a public corporation;' therefore it was not permissible for the court to postpone the prior lien of the Houston lee & Brewing Company to the expenses and costs of the receivership sued out in this case. We have thought it prudent to make this statement lest our refusal of the writ of error might be understood to overrule Ellis v. Water Co., 86 Tex. 109, 23 S. W. 858, in which this court held that the prior mortgage or lien could be postponed in favor of the expenses of operating a water company upon the ground that a water company was a public corporation, because it was necessary to operate the plant for the convenience of the population of a town;

There is no conflict in the decision which we make in this case and the case above cited.