author: HALL, J.

text:
    McCORMACK v. CRAWFORD.
    (No. 766.)

    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 13, 1915.
    On Motion for Rehearing, Jan. 5, 1916.)
    1. Boundaries &wkey;40 — Survey — Notes — Question for Jury.
    In trespass to try title where no conflict appeared from an inspection of the field notes from the various sections composing a block, but where conflict arose between |the calls in the field notes of a survey of that block and upon the testimony of a surveyor as to the manner in which the block was constructed, the question as to the proper location of the block on the ground and the contention of the survey- or with reference thereto, was for the jury.
    [Ed. Note. — For other eases, see Boundaries, Cent. Dig. §§ 196-204; Dec. Dig. &wkey;40.j
    2. Appeal and Error >@^882 —Party Entitled to Allege Error — Estoppel.
    Defendant in trespass to try title having put in the evidence of the surveyor as to how a block was constructed, could not complain of such evidence on appeal to the Court of Civil Appeals.
    [Ed. Note. — For other cases, see Appeal and Error, Cent.Dig. §§ 3591-3610; Dee.Dig. &wkey;>882.]
    3. Boundaries <&wkey;3 — Texas — Surveyor’s Notes.
    In trespass to try title involving the -lines of block C-3 as they appeared in the field notes of the various sections of block J-K, which blocks constituted a system of surveys, based on the line outlined by the surveyor, who had run only one line upon which all these blocks were constructed by him, as shown by his field notes in the land office several months apart, the fact that he first made out and filed the field notes of C-3, did not prevent the further fact that the lines of that block were called for in the field notes of J-K, having its due weight, and the rule that the lines of a prior survey cannot be controlled by the call of the junior survey, did not apply.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec. Dig. <®¿»3.)
    4. Boundaries <&wkey;l — Surveys—Lines.
    A marked line or corner in a block or system of surveys belongs as much to one block as to another. ,
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. § 1; Dee. Dig. <@=el.]
    5. Evidence <&wkey;342'— Texas — Surveys — Sketches and Maps.
    In trespass to try title, certified sketches and maps from the land office were competent to show, at least prima facie, the location of surveys outlined there.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. |§ 1302-1314; Dec. Dig. &wkey;342J
    6. Appeal and Error &wkey;5l0ol — Harmless Error — Admission of Evidence.
    In trespass to try title error, if any, in allowing the chief draftsman of the general land office to testify with reference to what appeared from the original field notes of the various surveys was harmless, where the maps and field notes themselves were in evidence, and the facts testified to appeared from an examination thereof.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. <&wkey;> 1051.]

      7. BOUNDARIES — Findings — Special Issues.
    In trespass to try title, an affirmative finding on the special issue as to whether the original surveyor locating- blocks C-3, J-K and others located it on the base line run by him from a sod monument located at the northeast corner of survey No. 9 in block J-K eastward, and whether he located the southwest corner of ■survey No. 5 in block C-3 on said line two miles east of the monument, made the issue as to whether the officers of the state and the grantee named in the patents intended, when the patents granting surveys No. 3 and 5 were issued, that the survey should lie adjacent to and adjoining block J-K immaterial.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. § 208; Dec. Dig. <&wkey;42.]
    8. Appeal and Error <&wkey;1050 — Harmless Error — Admission of Evidence.
    In such case error, if any, in the evidence bearing upon such immaterial issue was harmless, within the rule that if there is sufficient evidence to sustain the verdict, judgment will not be reversed because of the admission of immaterial facts, unless such admission has properly influenced the jury in its findings.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dee. Dig. &wkey;3l050.]
    On Motion for Rehearing.
    9. Evidence <&wkey;83 — Presumption—Official Acts — Survey—Maps as Evidence.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5306, requiring every district, county, or special surveyor to plat once in every three months all surveys made in such district or county, to that date, and to send sketches thereof to the general land office, the court, on a showing that the blocks involved in trespass to try title were all office surveys constructed with reference to a base line, and not actually surveyed on the ground except as to such base line, must presume that the maps were a reproduction of the office work required to be so returned to the land office showing the acts of the survey- or in the location of such blocks.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 105; Dec. Dig. <&wkey;83.]
    10. Boundaries <&wkey;36 — Evidence—Maps.
    In trespass to try title where the maps constituting under the statute a necessary part of the grant, showed a conflict with the calls in the field notes of section 1 in block C., wherein it was sought to tie the northwest corner of that section to surveys No. 124 in block M-8 and No. 1 in block M-13, 12 and 15 miles away respectively, they should have' been submitted to the jury.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 160-162, 164, 166-176; Dec. Dig. <&wkey;36.j
    11. Boundaries &wkey;?3 — Texas — Surveys — “Descriptive Calls” — “Locative Calls.”
    In field notes of section 1 in block C., wherein it was sought to tie the northwest corner of that section to surveys No. 124 in block M-8 and No. 1 in block M-13, 12 and 15 miles away respectively, the calls for M-13 and M-8 were “descriptive calls” and not “locative calls.”
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec. Dig. &wkey;>3.]
    12. Evidence <&wkey;83 — Presumptions — Official Acts — Field Notes — Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. art. 5306, requiring surveyors to plat surveys in their district or county, and to send sketches thereof with the field notes to the general land office, it would be presumed that when the state issued a patent in the case of a block for any subdivision thereof to the grantee, that the land commissioner had not only the field notes, but the plat returned with the field notes before him.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 105; Dec. Dig. <&wkey;83.]
    13. Evidence <&wkey;460 — Parol Evidence — Survey.
    A conflict between the surveyor’s maps and the field notes required the court to‘resort to parol evidence to ascertain if possible the footsteps of the surveyor.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2115-2128; Dec. Dig. &wkey;460.]
    14. Boundaries i&wkey;l — Survey — Disregarding Calls.
    In trespass to try title, calls given by mistake should be disregarded and effect given to calls which were certain and were found in connection with the other matters of description contained in the grant which would conform it to the evident intention of the parties.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. § 1; Dec. Dig. &wkey;?l.]
    15. Boundaries &wkey;>10 — Surveys — Field N otes — Explanation.
    The field notes of a block constituting a prior survey might be explained by subsequently made field notes of another block constructed within three months’ time permitted 'for returning the plats and field notes to the land office.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 90, 91; Dec. Dig. i&wkey;lO.]
    16. Boundaries t&wkey;3 — Surveys—Calls.
    While a call for the northwest corner of
    survey No. 1 in a block is no more dignity than the call for the southwest corner of survey No. 5, calling for a mound, by which the surveyor meant a point, yet if the point could be located on a well-marked line by course and distance, it should control the call for am unmarked corner several miles away which the surveyor never saw, and which was purely a descriptive call, in determining where the block was actually located on the ground.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec, Dig. <&wkey;>3.]
    Appeal from District Court, Hale County; Jno. W. Yeale, Special Judge.
    Trespass to try title by Ralph Crawford, continued after his death by Ralph D. Crawford and another, against Charles McCor-mack. Judgment for plaintiffs and defendant appeals.
    Affirmed.
    C. D. Russell, of Plainview, and J. T. Montgomery, of Wichita Falls, for appellant. Mathes & Williams, of Plainview, and N. A. Rector, of Austin, for appellees.

      Second motion for rehearing denied February 9, 1916. Application for writ of error pending in Supreme Court.

   HALL, J.

Ralph Crawford instituted this suit against appellant, in the ordinary form of trespass to try title, to recover sections Nos. 3 and 5, in block C-3, Tyler Tap Railway Company surveys, in Hale county. The two sections of land are described by metes and bounds in the petition. Plaintiff also prayed for rents. The death of plaintiff having been suggested, Ralph D. Crawford and Julia Crawford, on September 7, 1914, intervened, alleging that they were the owners of the land and the devisees of Ralph Crawford, and adopting the allegations in plaintiff’s petition. Defendant McCormack answered by disclaiming as to all the lands sued for except a certain portion thereof described in bis answer by metes and bounds, and as to that part pleaded not guilty and general denial. The ease was tried before a jury upon special issues. Based upon the verdict, the court rendered judgment for Ralph D. and Julia Crawford for the lands in issue and $327 rents.

The land claimed by defendant Crawford is described in his answer as follows:

“Beginning two miles east and four miles north of the sod monument referred to in plaintiff’s petition as the northeast corner of survey No. 9j block J-K, and which said beginning point is the northeast comer of survey 29, block S-l, as now located; thence east 1,621 varas to a point in the west line of block C-3; thence south 7,300 varas to a point on the north line of J-K 2; thence west 1,621 varas to the southeast comer of survey No. 4, block J-K; thence north 7,300 varas to the beginning. The land thus described includes the greater part of sections 3 and 5, set out in plaintiff’s petition.”

On the trial it was admitted that Ralph D. and Julia Crawford own surveys 3 and 5, block C-3, wherever same may be properly located. The issue in the case was as to the proper location of block C-3. The plaintiffs contended that block C-3, when properly located, was surrounded by blocks S-l and J-K on the west, block J-K 2 on the south, J-K 3 on the east, and by the Hobbs and Ray Surveys on the north, said last-named surveys lying between block C-3 and block M-13. The defendants’ contention was that there was a vacancy 1,621 varas wide existing between block C-3 on the east, and blocks S-l and J-K on the west; and that a yacancy also existed between the north line of J-K 2 and the south line of block C-3. According to the maps introduced in evidence, there was a sod monument which was a well-established corner, near the center of block J-K, being the northeast comer of section 9 of said block. A line protracted east from the sod monument would be the south line of block C-3, as last-named block was located, according to the contention of plaintiff.

John Summerfield testified by deposition for plaintiff in substance as follows:

“I am 59 years of age, and reside in Dallas, Tex.; was land surveyor from 1876 to 1880; ran solar instrument, doing meridian and township work for the United States government in 1874 and 1875. I am the same Summerfield who signed the field notes of the surveys in blocks C-3, J-K, J-K 2 and J-K 3 in Hale county, Tex. In 1876,1 ran a line and established certain earth monuments and mounds and pits, and afterwards some of these marks were adopted as comers for surveys and field notes dated at the time of their adoption. The earth mound or monument at the northeast comer of survey 9„ block J-K, was built by me on the morning of June 3, 1876, and was established as per my original field notes at the end of the eleventh mile on a line I was running due east (variation 11 degrees, 45 minutes east) from another earth monument established by me on the 2d day of June, 1876. These monuments, if no errors were made by my chainmen, would be 11 miles apart. I ran east from the sod monument at the1 northeast comer of survey 9, block J-K, on June 3, 1876, seven miles, and then turned north and ran 4 miles, 53 chains, 22 links, putting mound and two pits at the end of each mile to an intersection with Jot Gunter’s party, which had left us on the morning of June 1st 1876, at an earth monument established on the evening of May 30, 1876, said monument after-wards adopted as the southwest comer of survey 347, block M-6; but there was an error of one-half mile in eastings between us, and as they had been chasing wild horses thought they had made it. I have no recollection of running other lines in blocks C-3, J-K, J-K 2, and J-K 3, other than the fine above mentioned, previous to their location. I do not recollect ever being at the southeast comer of survey 124, block M-8, in Swisher county. I do not recollect that I was ever at the southwest comer of survey 1, block M-13 in Swisher county. The mounds made by me on the line run by me in 1876, where they fitted into the surveys at the time of their location, were intended to be the mounds referred to in field notes, but in retracing some-of my lines, where I had put up mounds and pits in 1876, in. the year following, I found them nearly destroyed by the buffaloes, so that I stopped putting them up and only established the large earth monuments which they could not obliterate. This applies to the prairies where we could not find rock to put up for comers. My recollection is that in all the field notes a mound was called for at each corner, but they will show for themselves. I put a mound and two pits, one on each side of the line, I was running, at the end of each mile run by me in 1876, except where earth monuments or rock mounds are called. I do not remember to have ever surveyed or measured the distance from either the southwest corner of survey 124, block M-8, or the southeast comer of survey No. 1,. block M-13, to 0-3, or to that vicinity.”

The field notes of the surveys in block 0-3', beginning with survey No. 1 in the northwest comer of said block, show according to the agreement of the parties in this court that the beginning corner of said block 1 is 15 miles south from the southeast corner of survey 124, in block M-8, and 12 miles south of the southwest corner of survey No. 1, in block M-13. The remaining calls of said section 1 are as follows:

“Thence south 1,900 varas a mound; thence east 1,900 varas a mound; north 1,900 varas a mound; west 1,900 varas to the beginning.”

The remaining surveys in said block 0-3 call to begin at a corner of the survey next preceding it in numerical order on through the block and call for nothing except that at each corner a mound is specified. The field notes of this block are dated November 5, 1S77, and filed in the General Land Office January 7, 1878, and passed as correct on the map of Hale county, March 27, 1878.

Meld notes of a' survey, made by N. K. Smith, were introduced in evidence, showing that if block 0-3 is located from the beginning call of survey No. 1, in said block, that the entire west line of the block will lie 1,621 varas east of the east line of block J-K, creating a vacancy between the two blocks, which is part of the land claimed by the defendant.

Over the objections of defendant, plaintiff introduced the field notes of surveys Nos. 1 to 11 inclusive of block J-K. The field notes of survey 1 in said block call to begin at .a mound the northwest corner of survey No. 5, in block C-3, and for the northwest corner of survey No. 4, in. said block. Th’e field notes of survey No. 3 in one of tbe corners calls for tbe sod monument heretofore mentioned; and without setting out the field notes in full it is sufficient to state that all of the surveys in block J-K, which touch block 0-3 or the sod monument, called for them. The remaining surveys in said block J-K call to begin on a survey next preceding it in its numerical order. The field notes of this block are dated January 14, 1878, and were filed in the General Land Office February 11, 1878. The field notes of blocks J-K 2 and J-K 3 also call for the corners in block Ct3, wherever the sections in said blocks touch the line of block 0-3.

The field notes'of surveys 5, 61, 62, 65, and 68 of block M-3, were introduced in evidence, none of which refer to either of the three blocks last above mentioned. The field notes of said survey 5 are dated March 30, 1878, and the field notes of the remaining sections in said block are dated January 21, 1878.

The patents of surveys 3 and 5, block C-3, dated March' 28, 1878, describing the surveys exactly as in the original field notes, were introduced.

The defendant introduced in evidence the field notes of a number of surveys in block B-5, M-6 and M-8; and the field notes of survey No. 1, block M-13, showing that the last-named survey begins at a mound 2 miles south of the southeast corner of survey 124, •block MS. These field notes are dated September 29, 1877; fiied November 1, 1877; and passed as correct on the map 'and patented January 18, 1878. The defendant then introduced the deposition of John Summer-field, in which he testified that in 1874 he worked for the United States government, running boundary lines in Colorado, Indian Territory, and Southern Kansas; that he came to Texas in 1876, and took charge of the locating party of Jot Gunter and W. B. Munson, at Sherman, and surveyed land as a deputy surveyor under W. Chlloway of the Jack land district, surveying land in what is known as Randall, Deaf Smith, Castro-, Swisher, and Hale counties. This witness further stated:

“I herewith give you the line run by me in the year 1876, from which all the surveys in all of blocks M-S, M-13, C-3, J-K, M-6, and M-7, were located and platted. Wherever the comers established by me in the line hereafter described touched any of surveys in any of said blocks, the same was adopted and described in the field notes. The term ‘mound’ in said surveys was used instead of the word ‘point,’ and if any corner in said field notes did not describe mounds and pits, then no mound was established on the ground. The surveys in the blocks mentioned were all supposed to contain 640 acres and call for one another. The line mentioned as run in 1876 I began at a large earth monument on the south side of the Canadian river on Lodge-sldn creek, in Potter county, established by T. S. McClelland and W. B. Munson in 1875, and this earth monument was afterwards adopted as the southwest corner of survey 153, B. S. & F. block No. 9. I started my survey on the 21st day of May, 1876, from this corner.” |

The witness then describes in detail the line surveyed by him up to June 1, 1876, and continues:

“I ran south for 15 miles to a mound and two pits at the end of each mile; I then turned and ran south 45 east, diagonally across ten sections, putting a mound and two pits at the proper points for the corner of each section. At the end of the tenth section I established an earth monument. Then I ran east for 10 miles, establishing a mound and two pits at the end of each mile, continuing east on the eleventh mile at 38 chains, crossed a creek, which was after-wards known as Running Water; at 80 chains established a large earth monument, which was afterwards adopted as the northeast corner of survey 9, block J-K. * * * All the blocks M-6, M-8, M-13, M-15, and C-3 were all plotted in after these lines were run, and wherever they touched these base fines the corners on said lines were adopted as the corners for the surveys in said blocks. None of the surveys in blocks M-13 and 0-3 were run out on the ground, and the corners established by me except where any survey may have touched the base line as above. I suppose you call them office surveys, but they wore all plotted and supposed to connect properly from the base line as above described. H. C. Hedrick was not a practicing surveyor, and he signed some of the field notes as a deputy surveyor of the Jack Land District, plotted from the base fines run by me. He has been dead a number of years. Jot Gun-ter and T. S. McClelland are also dead.”

In defining the boundaries of block C-3, the footsteps of the surveyor, Summerfield, are found along its ’south line, if his testimony is to be taken as true. This witness says he located and plotted block C-3 with this line as a base, although the line is not mentioned in his field notes. As heretofore stated, the beginning corner of section 1, block 0-3 is “15 miles south from the southeast corner of survey 124, in block M-8, and 12 miles south of the southwest corner of survey 1, block M-13.” Summerfield says he never measured the distance stated in that call, and has no recollection of ever being at the southeast comer of survey 124, block M-8, or the southwest corner of block M-13.

Appellant’s first proposition is:

“Where a block of surveys can be and are definitely located and fixed on the ground by calls of their own field notes and there is no uncertainty or ambiguity whatever in said field note's in themselves, or when applied to the ground and where there is no conflict in the evidence as to any material fact the surveys must be located from the calls of their own field notes.”

The court submitted to the jury as the first special issue the following:

“Did Summerfield, the original surveyor, who located blocks 0-3, J-K and J-K 3, locate said block 0-3 on the base line run by him from the sod monument located at the noi’theast comer of survey No. 9, in block J-K, eastward from said monument, and did he locate the southwest corner of survey No. 5 in said block 0 — 3 on said line 2 miles east of said sod monument? Answer yes or no.”

The jury answered, “Yes.” Appellant requested a peremptory instruction only.

The proposition is urged under the second assignment that:

“Where a survey or block of surveys can be definitely located from the calls of their own field notes and there is no ambiguity or uncex’-tainty in the calls, the land must, as a matter of law, he located from the field notes, and it is error to authorize a jury to locate the survey or surveys from a line run but not marked or called for.”

In support of these propositions appellant cites Thompson v. Langdon, 87 Tex. 254, 28 S. W. 931; Upshure County v. Lewright, 101 S. W. 1013; Keystons Co. v. Peach River Lumber Co., 96 S. W. 64; Johnson v. Archibald, 78 Tex. 96, 14 S. W. 267, 22 Am. St. Rep. 27; Anderson v. Stamps, 19 Tex. 460; Converse v. Langshaw, 81 Tex. 275, 16 S. W. 1031; Blackwell v. Coleman County, 94 Tex. 216, 59 S. W. 530; Coleman v. Stewart, 65 S. W. 384; Matthews v. Thatcher, 33 Tex. Civ. App. 133, 76 S. W. 61. We admit that a careful perusal of these authorities tends to sustain appellant’s contention; but the testimony of Summerfield was not objected to and indeed part of it was introduced by appellant. No conflict appears from an inspection of the field notes of the various sections of which block C-3 is constructed, but a serious conflict arises between the calls in the field notes of survey No. 1 of that block and the testimony of Summerfield, wherein he details the manner in which the block was constructed. Having introduced this testimony appellant is in no position now to complain in this court. The evidence having been admitted it became a question of fact as to the proper location of block C-3 upon the ground, and the intention of the surveyor with reference thereto. Cox v. Finks, 41 S. W. 95; Busk v. Manghum, 14 Tex. Civ. App. 621, 37 S. W. 459; Masterson v. Ribble, 34 Tex. Civ. App. 270, 78 S. W. 358; Taft v. Word, 124 S. W. 437; Gilbert v. Finberg, 156 S. W. 506.

Appellant insists that the jury could not properly consider the calls for the lines of block C-3, as they appeared in the field notes of the various sections of block J-K. The testimony of Summerfield shows that these blocks constitute a system of surveys based upon the line outlined by him. McMeans, Justice, in Shindler v. Lutcher & Moore Lumber Co., 107 S. W. 941, held that where the calls in an office survey are based on another survey actually made on the ground and established at the time both surveys recognizing a landmark which could only be known by an actual survey, the fact that the field notes of the office survey were dated one day earlier than the field notes of the actual survey, did not affect the priority of the actual survey. The undisputed testimony is that Summerfield ran only one line, upon which all these blocks were constructed by him, as shown by his field notes filed in the land office several months apart. The fact that he made out and filed the field notes of C-3 first, does not prevent the further fact that the lines of C-3 are called for in the field notes of J-K from having its due weight; and 'the rule that the lines of a prior survey cannot be controlled by the calls of a junior survey should not apply. Crosby v. Stevenson, 156 S. W. 1110. It was held by the Supreme Court of the United States, in the case of Clement v. Packer, 125 U. S. 309, 8 Sup. Ct. 907, 31 L. Ed. 728, that a marked line or corner in a block or system of surveys belongs as much to one block as another. Booker v. Hart, 77 Tex. 146, 12 S. W. 16.

Appellant predicates error upon the action of the court in permitting appellee to introduce in evidence certain maps, being copies furnished by the Land Office. Certified sketches and maps from the Land Office are always competent to show at least prima facie the location of surveys outlined there, and moreover, the maps introduced were specified in the stipulation made by the attorneys, wherein it is agreed that they should be introduced. Myers v. Moody, 122 S. W. 920; Haile v. Johnson, 133 S. W. 1088.

One Hunnicutt, Chief Draftsman in the General Land Office, was permitted, over the objection of appellant, to testify with reference to what appeared from the original field notes of the various surveys composing blocks C-3, J-K, J-K 2 and S-l. The maps and field notes themselves having been introduced in evidence and the facts testified to by this witness appearing from an examination of them, the error, if any, in the admission of his deposition, is harmless.

Complaint is also made of the admission in evidence of the testimony of the witnesses Ray, Fortenberry, and Hobbs. These witnesses testified in substance that in 1906 they had purchased a certain vacant strip of land from the state lying between C-3 and M-13; that some of them had had possession of certain portions of block C-3 for more than 10 years, having the same fenced and occupied under a claim of ownership. The second issue submitted to the jury is as follows:

“Lou will determine from all the evidence in this case whether or not the officers of the state of Texas, and the grantee, Ralph Crawford, named in the patents to the said grantee, intended at the time said patents granting said surveys No. 3 and 5, block C-3, were issued, that said survey should lie adjacent to and adjoining block J-K. Lou will answer this question yes or no.”

We are inclined to the opinion that the issue submitted here is not material in the light of an affirmative finding by the jury upon the first special issue. The evidence adduced from these witnesses therefore has no material bearing upon the real controversy, and could not have influenced the answers made by the jury to either of the special issues, and certainly not to the first. Therefore the error, if any, in admitting this testimony, ia harmless. The rule is that if there is sufficient evidence to sustain the verdict the judgment will not be reversed because immaterial facts are admitted, unless such admission has probably influenced the jury in its findings. Under Rule 62-A (149 S. W. x), none of the errors complained ol would justify this court in reversing the judgment.

The judgment is therefore affirmed.

On Motion for Rehearing.

The motion for rehearing is practically a reproduction of appellant’s brief in so far as the matters urged and the arguments to sustain them are presented. We have carefully reviewed the entire record and considered the cases which we cited and which it is urged in the motion should control the decision, and we are forced to adhere to our ■original holding.

We did not discuss in the original opinion the question of the introduction of the maps and their effect at any length. Article 5306, Yernon’s Sayles’ Civil Statutes (Act of January 26, 1858), makes it the duty of every district, 'county, or special surveyor, to plat once in every 3 months all surveys made in such district or county, upon the map of his district or county, to that date; and requires him to send sketches thereof, with the field notes of same, to the General Land Office; and by its provisions subjects him to a fine of $500 in the event he should fail to do so. Five maps from the Land Office appear in the statement of facts. Some of them are not dated, others bear date in 1879, but they all appear to be- maps of block 0-3, and the adjoining blocks, 0-4, S-l, J-K, J-K 2, J-K 3, and in some instances showing sections 66, 67 and 68 of block M-13 on the north. These, with a sixth map, prepared by Thomas P. Whitts, show without exception • that block C-3 is located on the base line running east from the sod monument established by Sum-merfield at the northeast corner of section 9, in block J-K. The evidence showing without contradiction that these blocks are all office surveys constructed with reference to the base line which we described at length in the original opinion and that except such base line, no actual survey was made on the ground, we must presume that these maps are a reproduction of the office work required to .be returned to the Land Office by the above statute, showing the acts of the surveyor in the location of said blocks.

Since they constitute, under the statute, a necessary part of the grant, there is shown a conflict with the calls in the field notes of section No. 1, in block 0, wherein it is sought to tie the northwest .corner of that section to surveys No. 124 in block M-8 and No. 1 in’ block M-13, 12 and 15 miles away, respectively. Since these maps are a part of the record' and properly so, we think it was the duty of the trial judge to submit them to the jury for whatever they are worth.

The call for M-13 and M-8, in the field notes of section 1, block C-3, are descriptive, and not locative calls. As said in Stafford v. King, 30 Tex. 273, 94 Am. Dec. 304:

“There is another rule to be observed in estimating these natural and artificial calls. They are divided into two classes: Descriptive' or directory, and special locative calls. The former, though, consisting of rivers, lakes, and creeks, must yield to the special locative calls, for the reason that the latter, consisting of the particular objects upon the lines or corners of the land, are intended to indicate the precise boundary of the land, about which the locator and surveyor should be, and are presumed to be, very particular ; while the former are called for without any care for exactness, and merely intended to point out or lead a person into the region or neighborhood of the tract survey, and hence not considered as entitled to much credit in locating the particular boundaries of the land when they come in contact with special locative calls, and must give way to them.”

In Finberg v. Gilbert, 104 Tex. 546, 141 S. W. 85 (4), it is said:

“Nor can there any longer be any doubt as to the rules, in such cases, which are to govern courts in the location and identification of such grants. This was stated, with his usual cleax*ness and masterful grasp, by Judge Stayton in Boon v. Hunter, 62 Tex. 592, where he uses this language: ‘The rules for the determination of boundaries, when a patent has been issued on a survey actually made, have been so often stated that it is not deemed necessary to repeat them; and, if it be not shown that no survey was made, such survey will be presumed. It is, however, not believed that the same rules in regard to the lines and corners of other surveys called for in a patent can be applied, when it clearly appears that no actual survey was ever made, and in such case it becomes necessary to look to all matters of description contained in the patent, in order to determine what particular land was conveyed and intended by the state and the grantee to be conveyed by the patent. If, in such case, from a consideration of all these, in connection with the facts surrounding the parties, and the transactions to which the parties looked at the time the patent was Issued, the thing granted can be with certainty identified, then the grant ought not to be held void; but such matters of description as were evidently' given by mistake should be disregarded, and effect given to the calls which are certain and are found, which, in connection with other matters of description contained in the grant, will make it conform to the evident intention of the parties’ ”—citing a number of authorities.

We must presume under the requirement of the statute above quoted, that when the state issued the patent in the case of block 0-3 or any subdivision thereof, to the grantee, that the Land Commissioner had not only the field notes, but the plat returned with the field notes by the surveyor, before him, and if the jury “from a consideration of all these, in connection with the facts surrounding the parties, and the transaction to which the parties looked at the time the patent was issued” can identify the grant with certainty, the subject-matter thereof should be located accordingly.

The conflict between the maps and the field notes required the court to resort to parol evidence to ascertain, if possible, the footsteps of the surveyor, and if it should appear that the calls for block M-13, and block M-8 “were evidently given by mistake, they should be disregarded and effect given to the calls which are certain and are found in connection with other matters of description contained in the grant, will make it conform to the evident intention of the parties.”

The holding in the original opinion, to the effect that the field notes of block J-K, which call for the lines of block 0-3, should have their due weight, is also criticized, for the reason that it is contended block J-K is a junior survey. While the date of the field notes sustains appellant’s contention, with reference to the priority of 0-3 when the real facts are known, viz., that the base line was the only survey actually made, and that all of 'said blocks were constructed evidently within the three months’ time permitted by the statute for returning the plats and field notes to the Land Office, we are not willing to concede that J-K is a prior survey; but if we admit such to be the fact, it is said in Finberg v. Gilbert, supra (9):

“Numerous objections were made on the trial to the introduction of all the maps produced in evidence, as well as to the testimony of the surveyors. We think that, if and when the field notes of the different sections of block 3 are introduced and the location of section 71, S. P., is shown, these subsequently made maps would be properly receivable in evidence, for whatever they might be worth as throwing light on or as corroborative of the location of the land in suit as originally fixed and placed.”

In Robinson v. Doss, 53 Tex. 509, in summarizing what had been previously said in the opinion, Judge Gould uses this language:

“The maps of these surveys as they have been ever since the surveys were made, locate the corner according to distance. The evidence given by those who assisted in making these surveys, and the action of one of those parties, himself a surveyor, in the calls of an adjoining survey made by him a few weeks afterwards, show that the eastern lines and corners of the Barnett were not actually surveyed and marked, and show what was understood at the time to be the relative position of the Scott southeast corner and the Barnett northeast corner. Rejecting the single call and laying off the eastern part of the survey according to course and distance, we carry out the manifest intention to make a rectangular survey, occupying with reference to the Scott, the relative position indicated on the published maps, and by the field notes of the two surveys, as recognized in all the subsequent adjoining surveys of that period. The case is one in which adherence to the general rule would be to defeat the reason and object of the rule. We think, it equally clear that if the plaintiff has been misled by the calls of the patent, it has been because of his own neglect to make that examination into the surrounding circumstances which he should have made before undertaking to locate on lands recognized in the General Land Office and on the official maps as having been patented.”

Ordinarily, the call for the northwest corner of survey No. 1 in this block is of no more dignity than the call for the southwest comer of survey No. 5; the latter call is for a mound. While it is trae that Summerfield testified that when he called for a mound it meant a point, if this point can be located upon a well-marked line, by course and distance from the sod mound it should unquestionably control a call for an unmarked comer 12 or 15 miles away, which the surveyor admits he never saw and knew nothing about, and which is purely a descriptive call. Thatcher v. Matthews, 101 Tex. 122, 105 S. W. 317. In Lilly v. Blum, 70 Tex. 704, 6 S. W. 284, and Boon v. Hunter, 62 Tex. 582, the question of the proper rule, which should govern in locating the boundaries of surveys not actually established on the ground, is again fully discussed. These cases approve the holding in Stafford v. King, supra, but the opinions are too long to be quoted here. We think they, together with the authorities cited in the original opinion, sustain our holding in this case. The conflict created between the calls in the field notes of section. No. 1 on the one hand, and the maps and calls for block C-3 in the field notes of the-contiguous sections in blocks J-K, J-K 2, and J-K 3 authorized the court to admit the testimony of Summerfield, and to submit to the jury the question as to where the block was actually located on the ground. We cannot agree with appellant that it was a question of law, and the motion is overruled.
      <§^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@t^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    BOOK v. HEATH.
    (No. 5551.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 15, 1915.
    Rehearing Denied Jan. 10, 1916.)
    1. Landlord and Tenant <&wkey;164 — Landlord’s Duties — Condition of Premises — Duty to Licensee.
    Where the tenant of an office building secured permission from the janitor to use the back stairs to reach a river in the rear for bathing purposes, and was injured by falling down such stairs when returning after his bath, the owner of the building was not liable, since the tenant was a mere licensee, to whom the owner owed no duty as to the condition of the stairs, except not to permit him to encounter a hidden peril known to the owner, or to willfully cause him harm, though as to one invited the owner is under the obligation to maintain the premises in a reasonably safe and secure condition.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 630-637, 639, 641; Dec. Dig. &wkey;>164.]
    2. Landlord and Tenant <&wkey;164 — Duties' of Landlord — Condition of Premises — Duty to Tenant.
    The owner of an office building owed no duty to a tenant to maintain in safe condition a back stairway, not appurtenant to the offices in the building, which led into the back yard, since it could not be anticipated that the tenant would use such stairway.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 630-637, 639, 641; Dec. Dig. &wkey;164.]
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by E. M. Heath against D. D. Book, Judgment for plaintiff, and defendant appeals.
    Reversed, and cause remanded.
    Arnold, Cozby & Peyton, of San Antonio, for appellant. O. M. Fitzhugh, of San Antonio, for appellee.
   FLY, C. J.

This is an action for damages instituted by appellee against appellant, and a trial of the cause resulted in a verdict and judgment for appellee in the sum of $2,500. It was1 alleged in the petition that appellant was the owner of a certain four-story store and office building on Houston street, in the city of San Antonio, known as the “Book Building”; that appel-lee was a real estate agent, and had his office in a room on the second floor of that building, which room he rented from appellant; that on the rear of the ground floor there was a back gallery from which a stairway led to the back yard, which extended to the river; that on or about June 19, 1914, appellee, desiring to take his two minor sons and two other boys down to the river to bathe, asked the agent of appellant in charge of the building how he and the boys could reach the river from the rear of the building, and was informed about the rear stairway, to which access was obtained through a pool room on the ground floor; that appel-lee went through the pool room, used the stairway in reaching the river, and attempted to return to his office, and while ascending the staircase it fell, and he was injured. The negligence is alleged to consist in the invitation of appellant to appellee to use an unsafe and defective stairway.

Appellee was either a licensee or a party invited to use . the stairway on the occasion of his fall and consequent injury. If he was a mere licensee, he was using the stairway on the passive consent of the owner. If, however, appellee was using the stairway at the request, solicitation, or desire of the owner, then he was there upon the invitation of the owner, and a different relation from that of a licensee would be established between him and the owner. An owner owes to a licensee no duty as to the condition of the premises, unless duties are imposed by statute, except to not permit him to encounter a hidden peril known to the owner, or to willfully cause him harm; but as to one invited he is under the obligation to maintain the premises in a reasonably safe and secure condition. An invitation may be express, as when the owner in terms invites another to come upon the premises, or make use of it or something thereon, or it may be implied when the owner by acts or conduct leads another to the belief that such use is not only acquiesced in by the owner, but is in accordance with the intention or design for which the way or place or thing was adapted, prepared, and allowed to be used. Beehler v. Daniels, 18 R. I. 563, 29 Atl. 6, 27 L. R. A. 512, 49 Am. St. Rep. 790; Turess v. Railway, 61 N. J. Law, 314, 40 Atl. 614; Furey v. Railway, 67 N. J. 270, 51 Atl. 505; Plummer v. Dill, 156 Mass. 426, 31 N. E. 128, 32 Am. St. Rep. 463; Sesler v. Coal Co., 51 W. Va. 318, 41 S. E. 216.

It is easy to formulate and promulgate general rules of law, but difficulties and perplexities arise in the application of such .rules to the facts of the concrete case presented for solution or decision, and those difficulties are often augmented by the obtrusion of matters into it that, while they seemingly have connection with it, in truth and fact should not enter into consideration. In this case the fact that appellee was the lessee of a room on the second floor of the building was considered by court and jury as a factor in arriving at a conclusion as to a decision in the case. The case should be considered as though appellee had merely entered the building with the intent of asking permission to leave the building by the back stairway for the purpose of taking his boys to the river to take a bath. The evidence fails to indicate that appellee had any more rights in connection with the back stairway than any other person from the street who might have asked for permission to use it. It was in no way connected with his office, and did not constitute a way of egress or ingress thereto. In order to reach it, a pool room rented by another man had to be used. The entrance to the offices was through a front door to an elevator or front staircase. The evidence fails to indicate that use of stores which were rented to other men and use of the back stairway was in contemplation of the parties when the rental contracts for offices were entered into, but the evidence does show that the back stairway was' for the bepefit of those who rented the stores on the ground floor and who might for the purposes of their business desire to use the yard in the rear of the building. There is no pretense that appellee desired to use the stairs for any purpose connected in the remotest degree with the uses for which the office was rented. That he had to use the stairway in order to get back to the office after the swimming party was over could offer no reason or excuse for his use of the stairs. If he had not used the stairs for a purpose utterly foreign to the object for which his office was rented and for his own and the pleasure of the boys, he would not have been in a position to need the back staircase to get back to his office. The use of the stairs in order to get a bath was of no possible benefit to appellant and had no interest whatever to him. He had made no contract with appellee, express or implied, to furnish stairways to offer approach to the river for bathing or any other purpose. The permission of the owner for the renter to use the back stairs for purposes of his pleasure alone should not be distorted into an invitation to use the stairs, and thereby render him liable for damages for failing to furnish a safe way for appellee to indulge his pleasure.

Appellant by his contract bound himself, impliedly if not expressly, to furnish safe means of entry into and departure from the office rented by appellee, and it may be that he was bound to provide for the safety of appellee in any part of the building that his business might lead him, but a back stairs for bathing purposes cannot he read into the contract, nor can the consent by the janitor to the use of stairs for such purposes be construed into an invitation to so use them. No reason can be assigned for such an invitation, and the accomplishment of appellee’s desire to use the stairway could not have redounded to the benefit, comfort, or pleasure of appellant, and had no relation to the business carried on by him. As was said by the Supreme Judicial Court of Massachusetts in the ease of Plummer v. Dill, 156 Mass. 426, 31 N. E. 128, 32 Am. St. Rep. 463:

“It is well settled there [that is, in England] that, to come under an implied invitation, as distinguished from a mere license, the visitor must come for a purpose connected with the business in which the occupant is engaged, or which he permits to be carried on there. There must at least be some mutuality of interest in the subject to which the visitor’s business relates, although the particular thing which is the object of the visit may not be for the benefit of the occupant. * * * The diligence of counsel and an extended examination of the authorities have failed to bring to our attention any case in which the owner or occupant of a place fitted up for ordinary use in business has been held, by the condition of his premises, impliedly to invite persons to come there for' a purpose in which the occupant had no interest, and which had no connection with the business actually or apparently carried on there.”

The Massachusetts case' has been cited in the able decision of the Fifth Court of Civil Appeals in the ease of Railway v. Kinslow, 172 S. W. 1121. In that case the decision is made to rest on the proof that appellant was interested in the business that brought ap-pellee upon the premises of appellant. No such case is presented by this record.

The Mnd of invitation which makes an owner liable to an invited person is clearly set forth by the Supreme Court of New Jersey in the case of Phillips v. Library Co., 55 N. J. Law, 307, 27 Atl. 478. That court said:

“The gist of the liability consists in the fact that the person injured did not act merely” for his own convenience and pleasure, and from motives “to which no act or sign of the owner or occupier contributed, * * * but was in accordance with the intention and design for which the way or place was adapted and prepared or allowed to be used.”

There is nothing in the evidence that tends to show that any but the renters of the stores should ever use the back stairs, for whose benefit they were built. We feel confident that, so far as the back stairs were concerned, appellee occupied the relation of a licensee to appellant, and that the latter had no concern or interest in the bathing of appel-lee or his boys. As to the back stairs appel-lee stood in the same relation to appellant as would any citizen of San Antonio who had no contractual relations with appellant. Kirby Lumber Co. v. Gresham, 151 S. W. 847; Railway v. Thomas, 48 Tex. Civ. App. 646, 107 S. W. 868.

In Elliott on Railroads, § 1249, it is stated that there is no invariable test as to whether the circumstances of a case evidence an invitation or a license, but it is said:

“That of mutuality, as announced by the Supreme Court of Massachusetts, seems to be the best that has been suggested.”

The author then copies and indorses the rule promulgated in the case of Plummer v. Dill, herein cited. Again, it is said by the same author, in section 1250, that it is not the duty of the landowner to notify a licensee of ordinary dangers incident to the use of the premises but:

. “The better rule is that the licensee takes his license subject to its concomitant perils, and the licensor, as a general rule, owes him no duty except to refrain from willfully or wantonly injuring him, or to exercise ordinary and reasonable care after discovering him to be in peril.”

The cases cited by appellee, in addition to those cited by appellant, give no aid or support to his contention that appellee was invited by appellant to go through a storeroom under the control of a tenant and use a stairway built for the convenience of those occupying the storerooms. If any one had the authority to use the stairway, it was one of the renters of the storerooms. Appellant was under no obligation to prepare a safe means for appellee and his boys to go to the river to bathe. He had not contracted for nor paid for any such privileges, and he was not the guest of appellant at a bathing party.

We have treated this question as though the janitor may have had the authority to extend invitations to persons to use different parts of appellant’s building for purposes not contemplated in the rental contract, but the evidence fails to show that he had any such authority. He may have had the authority to show rooms to prospective tenants and to collect rents, but the evidence indubitably shows that, he had no authority to issue invitations or to grant special privileges to any tenant. The building was under the absolute control and management of appellant, except when he went off on a vacation, and then he always put some other person than the janitor in control of the building. The fact that others may have used the back staircase could not render appellant liable. The Evidence discloses that, if there was such use, it was without the knowledge or consent of the owner, and it does not appear that any tenant above the ground floor had ever used such back stairway. Such stairway was not appurtenant to and had no connection with the offices in the building, and appellee had no more right to use it than any person who had no rental contract with the landowner. Appellant owed no duty to appellee to maintain the back stairway in a safe condition. It could not be anticipated that a renter of a room on the second floor would ever go through a storeroom occupied by another .renter and go down the stairway to take a bath in a river in the center of a city.

The judgment is reversed, and the cause remanded.
      «©s^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    STATE v. ORANGE & N. W. RY. CO. et al.

    (No. 5528.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 28, 1915.
    Rehearing Denied Dec. 22, 1915.)
    Commerce <&wkey;8 — Interstate Commerce — Laws — Scope.
    The Safety Appliance Act (Act Cong. March 2, 1898, c. 196, 27 Stat. 531, as amended by Act Cong. March 2, 1903, c. 976, 32 Stat. 943), which relates to safety appliances for railroads engaged in interstate commerce, and fixes the appliances which shall be used on cars, declares in section 6 that trains composed of four-wheel and eight-wheel standard logging cars, the height of which does not exceed 25 inches, need not be equipped with automatic couplers. Held that, as to a railroad engaged in interstate commerce, the federal regulations supersede the state laws relating to safety appliances on logging cars, even though such cars are used exclusively in intrastate commerce.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. &wkey;?8.]
    Appeal from District Court, Travis County; George Calhoun, Judge.
    Action by the State of Texas against the Orange & Northwestern Railway Company and another. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    The state brought this suit against the Orange & Northwestern Railway Company and Frank Andrews, the receiver in possession of and operating the railroad belonging to that company. The cause of action asserted arose out of alleged violations of what is known as the state Safety Appliance Law, enacted by the Legislature of this state in 1909. There was a non jury trial, which resulted in a judgment for the defendants, and the state has appealed. The evidence supports the trial judge’s findings of fact, and we adopt the same, which are as follows:

      “ (1) That the defendant Orange & Northwestern Railway Company is a railway corporation organized and doing business under and by virtue of a charter issued by the state of Texas and under the laws of the state of Texas, and owning a line of railway in part extending from and between the towns of Bessmay, Tex., and Newton, Tex.
    “ (2) That on the 9th day of July, 1913, Frank Andrews was duly appointed as receiver of the defendant Orange & Northwestern Railway Company, and has qualified and acted as such receiver since said date.
    “(3) That on or about the 17th of November, 1913, defendant company’s train No. 335 contained cai-s which were not equipped with couplers coupling automatically by impact and which could be coupled and uncoupled without the necessity of men going between the ends thereof, because the coupling apparatus with which said cars were equipped was of such a nature and in such defective condition as not to come within the requirements of the provisions of section 2 of the act of the Legislature of Texas, being chapter 26 of the Acts of the Regular Session of the Thirty-First Legislature (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 2849a-2849o).

    “(4) That on the 17th and 19th days of November, 1913, defendants’ trains Nos. 333 and 310 were not operated with power or train brakes to be used or operated or that could be used or operated by the engineers of said trains, and that less than 75 per centum of the cars in said trains were not equipped with power or train brakes, as required by section 1 of the Legislature of Texas, chapter 26, of the Acts of the Regular Session of the Thirty-First Legislature.
    “(5) It was admitted by the plaintiff, and the court concludes as a fact, that on said 17th and 19th days of November, 1913, the defendants, the Orange & Northwestern1 Railway Company and the said Frank Andrews, receiver, were engaged in interstate commerce.
    “(6) That prior to the 9th day of July, 1913, said defendant company, and thereafter said receiver, published and filed with the Interstate Commerce Commission tariffs, rules, and regulations, and concurrences in the tariffs, rules, and regulations so filed and published by other carriers governing and applying to fixing and establishing the rates, fares, and charges for the handling, carriage, and transportation of interstate commerce.
    “(7) That the hauling, carriage, and transportation, of all such traffic and commerce was done and performed by said defendant company and by said receiver on and prior to said 17th and 19th days of November, 1913, and ever since said dates, in accordance with the tariffs, rules, and regulations so filed and published and concurred in by the defendants, and that the rates, fares and charges demanded and collected by said defendants for the hauling, carriage, and transportation of such traffic on and prior to said 9th day of July, 1913, and on the 17th and 19th days of November, 1913, were the rates, fares, and charges so fixed and established, and that on all of said dates said defendant company and its said receiver were common carriers by railroad and engaged in interstate commerce.
    • “(8) That on the dates hereinbefore referred to a large portion of the cars in the trains complained of by plaintiff in this suit were standard skeleton logging cars, used solely for the carriage and transportation of logs from the woods or from points on the line of the carriers near the woods to the mills, and that in the equipment of said cars said defendant company complied with the rules and regulations of the Interstate Oommerce Commission with regard to logging ears.”
    B. F. Looney, Atty. Gen., and Luther Nickels, Asst. Atty. Gen., for the State. Andrews, Streetman, Burns & Logue, Sam Streetman, and Robt. H. Kelley, all of Houston, for appellees.

      Application for writ of error pending in Supreme Court.

   KEY, C. J.

(after stating the facts as above). By the acts of March 2, 1893, and March 2, 1903, the federal Congress enacted a law covering and regulating the subject of safety appliances for all common carriers engaged in interstate commerce by railroads, and by the amendment of March 2, 1903, it is declared that:

“The provisions and requirements hereof and of said acts relating to train brakes, automatic couplers, grabirons, and the height of drawbar’s shall be held to apply to all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate commerce, and in the territories and the District of Columbia, and all other locomotives, tenders, cars, and similar vehicles used in connection therewith, excepting those trains,_ cars, and locomotives exempted by the provisions of section 6 of said act of March 2nd, 1893, as amended by the act of April 1st, 1896, or which are used upon street railways.” 32 Stat. 943.

Section 6, referred to in that quotation, exempts from the operation of the statute trains composed of four-wheeled and trains composed of eight-wheeled standard logging cars, where the height of such oars from top of rail to center of coupling does not exceed 25 inches. The facts show that appellees were common carriers hy railroad, engaged in interstate commerce, and therefore it is contended by their counsel that, although the particular cars in question in this case were not used in handling interstate commerce, nevertheless, as they belonged to common carriers by railroad engaged in interstate commerce, the acts of Congress referred to supersede and nullify the Texas statute upon the same subject in so far as it is sought to enforce that statute in this case. That contention seems to be supported by decisions of the Supreme Court of the United States, which decisions constitute the controlling law upon the subject. Southern Ry. Co. v. United States, 222 U. S. 20, 32 Sup. Ct. 2, 56 L. Ed. 72; Northern Pacific Ry. Co. v. Washington, 222 U. S. 370, 32 Sup. Ct. 160, 56 L. Ed. 237; Erie R. R. Co. v. New York, 233 U. S. 671, 34 Sup. Ct 756, 58 L. Ed. 1149, 52 L. R. A. (N. S.) 266, Ann. Cas. 1915D, 138; M., K. & T. Ry. Co. of Texas v. Harris, 234 U. S. 412, 34 Sup. Ct. 790, 58 L. Ed. 1377; Atlantic Coast Line R. R. Co. v. Georgia, 234 U. S. 280, 34 Sup. Ct. 829, 58 L. Ed. 1312; H. E. & W. T. Ry. Co. v. United States, 234 U. S. 342, 34 Sup. Ct. 833, 58 L. Ed. 1341; Southern Ry. Co. v. Reid, 222 U. S. 424, 32 Sup. Ct 140, 56 L. Ed. 257; C., R. I. & P. Ry. Co. v. Hardwick Farmers’ Elevator Co.. 226 U. S. 426, 33 Sup. Ct. 174, 57 L. Ed. 284, 46 L. R. A. (N. S.) 203; State v. T. & N. O. R. R. Co., 124 S. W. 984. See, also, Southern Bailway Co. v. Railroad Commission of Indiana, 236 U. S. 439, 35 Sup. Ct. 304, 59 L. Ed. 661, decided by the Supreme Court of the United States February 23, 1915. The last case seems to be directly in point, and we quote as follows from the opinion therein by Mr. Justice Lamar:

“The Indiana statute requires railway companies to place secure grabirons and handholds on the sides or ends of every railroad car under a penalty of $100 fine to be recovered in a civil action.
“In March, 1910, the Bailroad Commission of the state brought such a suit against the Southern Bailway Company, alleging that the company on February 24, 19Í0, had transported from Boonville, Ind., to Milltown, Ind., a car which did not have the required equipment. The defendant filed an answer in which it denied liability under the state law, inasmuch as on February 24, 1910, the federal Safety Appliance Act imposed penalties for failing to equip ears with handholds, and also designated the court in which they might be recovered. The commission’s demurrer to the answer was sustained. The defendant refusing to plead further, judgment was entered against the company. That judgment was affirmed by the state court, and the case was brought here by writ of error.
“The car alleged to have been without the required equipment, though transporting freight between points wholly within the state of Indiana, was moving on a railroad engaged in interstate commerce, and the company was therefore subject to the provisions and penalties of the Safety Appliance Act (27 Stat. 531, par. 4). United States v. Southern Ry. Co., 222 U. S. 20 [32 Sup. Ct. 2, 56 L. Ed. 72].
“The defendant in error insists, however, that the railroad company was also liable for the penalty imposed by the Indiana statute. In support of this position numerous cases are cited which, like Cross v. North Carolina, 132 U. S. 131 [10 Sup. Ct. 47, 33 L. Ed. 287], hold that the same act may constitute a criminal offense against two sovereignties, and that punishment by one does not prevent punishment by the other. That doctrine is thoroughly established. But, upon an analysis of the principle on which it is founded, it will be found to relate only to cases where the act sought to be punished is one over which both sovereignties have jurisdiction. This concurrent jurisdiction may be either because the nature of the act is such that at the same time it produces effects respectively within the sphere of state and federal regulation, and thus violates the laws of both, or, where there is this double effect in a matter of which one can exercise control, but an authoritative declaration that the paramount jurisdiction of one shall not exclude that of the other. Compare B. ¡3. § 711; 37 Stat. 670.
“But the principle that the offender may for one act be prosecuted in two jurisdictions has no application where one of the governments has exclusive jurisdiction of the subject-matter, and therefore the exclusive power to punish. Such is the case here, where Congress, in the exercise of its power to regulate interstate commerce, has legislated as to the appliances with which certain instrumentalities of that commerce must be furnished in order to secure the safety of em-ployés. Until Congress entered that field the states could legislate as to equipment in such manner as to incidentally effect without burdening interstate commerce. But Congress could pass the Safety Appliance Act only because of the fact that the equipment of cars moving on interstate roads was a regulation of interstate commerce. Under the Constitution the nature of that power is such that, when exercised, it is exclusive, and ipso facto supersedes existing state legislation on the same subject. Congress, of course, could have ‘circumscribed its regulations’ so as to occupy a limited field. Savage v. Jones, 225 U. S. 502, 533 [32 Sup. Ct. 715, 56 L. Ed. 1182]; Atlantic Coast Line v. Georgia, 234 U. S. 280, 293 [34 Sup. Ct. 829, 58 L. Ed. 1341]. But, so far as it did legislate, the exclusive effect of the Safety Appliance Act did not relate merely to details of the statute and the penalties it imposed, but extended to the whole subject of equipping cars with appliances intended for the protection of employes. The states thereafter could not legislate so as to require greater or less or different equipment; nor could they punish by imposing a greater or less or different penalties; for, as said in Prigg v. Commonwealth of Pennsylvania, 16 Pet. 618 [10 L. Ed. 1060]: ‘If Congress have a constitutional power to regulate a particular subject, and they do actually regulate it in a given manner and in a certain form, it cannot be that the state Legislatures have a right to interfere, and, as it were, by way of complement to the legislation of Congress, to prescribe additional regulations and what they may deem auxiliary provisions for the same purpose. In such a ease the legislation of Congress, in what it does prescribe, manifestly indicates that it does not intend that there shall be any further legislation to act upon the subject-matter. Its silence as to what it does not do is as expressive of what its intention is as the direct provisions made by it. * * * The will of Congress upon the whole subject'is as clearly established by what it had not declared as by what it has expressed.’
“Without, therefore, discussing the many cases sustaining the right of the states to legislate on subjects which, while not burdening, may yet incidentally affect interstate commerce, it is sufficient here to say that Congress has so far occupied the field of legislation relating to the equipment of freight cars with safety appliances as to supersede existing and prevent further legislation on that subject. The principle is too well established to require argument. Its application may be seen in ruling's in the closely analogous cases relating to state penalties for failing to furnish cars and to state penalties for retaining employés at work on cars beyond the time allowed by the Hours of Service Law.
“In Hampton v. St. L., I. M. & S. Ry., 227 U. S. 456 [33 Sup. Ct. 263, 57 L. Ed. 596], it was held that the Arkansas statute imposing a penalty for failing to deliver cars had been superseded by the provisions of the Hepburn Act, although the provisions of the two statutes were not identical. In Northern Pacific Ry. Co. v. Washington, 222 U. S. 371 [32 Sup. Ct. 160, 56 L. Ed. 237], it was held that congressional legislation as to hours of service so completely occupied the field as to prevent state legislation on that subject. In Erie R. R. v. New York, 233 U. S. 671 [34 Sup. Ct. 756, 58 L. Ed. 1149, 52 L. R. A. (N. S.) 266, Ann. Cas. 1915D, 138], a like ruling was made in a case where the New York law punished a railroad company for allowing an employe to work more than eight hours when the federal statute punished the company for employing him for more than nine hours, even though it was argued that the state legislation was not in conflict with the federal act, but rather in aid of it. The same contention is made here, inasmuch as the Indiana law requires handholds on sides or ends of cars, while the federal statute requires handholds to be placed both on the sides and ends of cars.
“The test, however, is not whether the state legislation is in conflict with the details of the federal law or supplements it, but whether the state had any jurisdiction of a subject over which Congress had exercised its exclusive control. The Safety Appliance Act having superseded the Indiana statute, the judgment imposing the penalty must be reversed, and the case remanded for further proceedings not inconsistent with this opinion.”

In Southern Railway Co. v. United States, 222 U. S. 20, 32 Sup. Ct. 2, 56 L. Ed. 72, the federal government sought and recovered penalties because the railway company had faded to comply with the federal statute, and the defense urged was that the cars, which were not equipped as required by the federal statute, though owned by and constituting part of the equipment of a railroad engaged in interstate trafile, were at the time there involved hauling intrastate, and not interstate, traffic. The court held that while the original act was limited to rolling stock being at the time used in the transportation of interstate commerce, the amendment of March 2, 1903, enlarged the scope of the act, and made it apply to-all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate commerce, although such rolling, stock might not be in use in the transportation of interstate commerce, and the court concluded its discussion of that subject in these words:

“For these reasons it must be held that the original act, as enlarged by the amendatory one, is intended to embrace all locomotives, cars, and similar vehicles used on any railroad which is a highway of interstate commerce.”

It was also contended in that case that, if the federal statute undertook to prescribe safety appliances to be used on the cars and other vehicles belonging to interstate carriers, but used for intrastate, and not interstate, traffic, it exceeded the power conferred upon Congress by the federal Constitution, for the purpose of regulating interstate commerce. The Supreme Court overruled that contention, and held that the statute was free from constitutional objections.

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

Affirmed.
      tgrroFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    PERROW v. SAN ANTONIO & A. P. RY. CO.
    (No. 5484.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 15, 1915.)
    1. Municipal Cobpokations <&wkey;654 — Public Alleys — Pbesckiption.
    In a suit to remove a cloud from title to a strip of land, evidence held to warrant a finding that the land had become a public alley by prescription.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1428; Dec. Dig. <&wkey;> 654.]
    2. Advebse Possession <&wkey;45 — Pbesckiption —Running op Statute.
    Where, during the life of an owner who was laboring under no disability, prescriptive use of land began, the fact of an intervening disability will not defeat the prescriptive right.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 232-254; Dec. Dig. <&wkey;> 45.]
    3. Dedication <&wkey; 18 — Deeds.
    Where a vendor of land agrees with the purchaser that it is bounded by a street or alley, such purchaser as against the vendor and those taking with notice, has an easement in the property represented as a street or alley.
    [Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 33-36; Dec. Dig. <&wkey;18.]
    Appeal from District Court, McLennan County; Tom L. McCullough, Judge.
    On motion for rehearing.
    Rehearing denied.
    For former opinion, see 178 S. W. 973.
    Sleeper, Boynton & Kendall, of Waco, for appellant. R. J. Boyle, of San Antonio, and Neff & Taylor, of Waco, for appellee.
   KEY, C. J.

The motion for rehearing challenges the correctness of the statement in our former opinion that the proof shows that the land upon which the alley in question is located was originally owned by Patrick and Elizabeth Burke, who are common source of title, etc., the contention being that the undisputed proof shows that at the time appellant and appellee acquired their rights the strip of land in controversy belonged to the estate of C. R. Burke, deceased. The latter contention may be correct, but a fair construction of the testimony given by J. J. Burke and the witness J. F. Hopkins, whose testimony appears in the statement of facts on pages 129 and 130 in the form of an affidavit, supports our statement that the strip of land in controversy formerly belonged to Patriéis Burke and Elizabeth Burke, and that their heirs were T. W., O. ft., and J. J. Burke. The testimony referred to shows that the former died about 10 years, and the latter about 8 years, before this case was tried in the court below; that they had only three children, who were J. J., O. R., and T. W. Burke; that T. W. Burke died several years ago, leaving a wife and three minor children; that C. It. Burke died during the year 1910 that he was never married, and left as his only heirs J. J. Burke and the heirs of T. W. Burke. It was also shown that Mary K. Burke, the surviving wife of T. W. Burke, was the duly qualified guardian of the minor children of T. W. Burke, and that J. J. Potts was the duly qualified administrator of the estate of O. It. Burke; that in 1885 or 1886 Patrick and Elizabeth Burke bought from different owners certain small tracts of land contiguous to each other, and that they comprised what has since been known as the Burke property in the city of Waco. The proof shows that there was one house upon the Burke property, when they first bought it, which they at once took possession of, and used it both as a dwelling and storehouse; that thereafter Patrick Burke made various improvements upon the Burke property, consisting in part of small dwelling houses which he rented to colored people; that within 5 or 6 years after acquiring the the property Patrick Burke established what the witness J. J. Burke described as a driveway to and from his tenant houses, and the driveway referred to constitutes the alley, which the jury found had been used by the public for more than 20 years, and which the judgment of the court decreed to be a public alley.

The proof shows that in January, 1911, appellee bought a portion of the original Burke property, and holds title thereto under deeds made by J. J. Potts as administrator of the estate of O. R. Burke, deceased, Mary Burke, guardian of the estate of the minor heirs of T. W. Burke, and also acting for herself individually, and J. J. Burke. The deeds referred to, in describing the property conveyed, call for the south line of the alley in controversy as one of the boundaries. On the same day these deeds were executed the same grantors executed deeds conveying the remainder of the Burke property to appellant, and described the same as adjoining and bounded by the land conveyed to appellee, but these deeds do not mention the alley. However, the report of J. J. Potts, as administrator, showing that he had made the two sales referred to and in describing the sale made to appellant, states one of the boundary lines as follows: “Thence north 45 west, 80 feet to corner on south line of alley.” The probate court approved that report, and ordered the administrator to make deeds to appellant and appel-lee in accordance therewith. Furthermore,, the deed made by J. J. Potts, as administrator, to appellee, in addition to calling for the alley, and giving other boundaries of the property conveyed, contains this language:

“For further and more particular description of the land herein conveyed, attention is called to the attached blueprint, which is hereby made a part of this conveyance.”

The blueprint referred to is not incorporated in the statement of facts, but the testimony of more than one witness shows that it was a plat on which the alley in question was delineated; and the deeds from J. J. Burke and Mary Burke for herself and as guardian of her minor children, in describing the property conveyed to appellee, refer for further description to the blueprint attached to the deed of J. J. Potts, administrator, conveying the same land to appellee. Attention is also called to the fact that in the deeds executed by J. J. Burke to the respective parties, he is described as one of the heirs of Patrick and Elizabeth Burke and O. It. Burke, and after describing the property in the deed to appellant, the deed recites:

“The land here conveyed being my entire share and interest in the above-described tract of land as an heir of Pati-ick and Elizabeth Burke and of 0. R. Burke, all deceased.”

The foregoing facts tend to support the statement in our former opinion as to common source of title in the sense that each party holds title to a portion of certain real estate which formerly belonged to Patrick and Elizabeth Burke, and that is the sense in which we used the term “common source of title” in that opinion. We observe, however, that it is alleged in appellant’s petition, and conceded in appellee’s answer, that the strip of land now in litigation belonged to the estate of O. R. Burke at the time these litigants acquired their respective rights; but that fact is unimportant in passing upon the question of prescription.

In view of the facts above recited, in connection with the facts stated in our former opinion, we adhere to our holding that the verdict of the jury sustains the judgment of the court upon the theory of prescription, if not upon any other theory.

In our former opinion nothing was said concerning appellant’s contention that the judgment could not be supported on the doctrine of prescription, because it was not shown that the property was not owned during the prescriptive period by some person laboring under disabilities, such as minority; and, as that contention is stressed in the motion for rehearing, we deem it proper to say that, conceding the correctness of the proposition of law insisted upon, we do not think it affords grounds for reversal of this case, for the reason that the undisputed proof shows that the use of the alley by the public not only commenced during the lifetime of Patrick Burile, who was the owner of the property and labored under no disability, but that he lived long enough for such adverse user to ripen into a prescriptive title. However, like limitation, the rule is that an intervening disability, not existing at the beginning of the period of prescription, will not defeat the prescriptive right. Elliott on Roads and Streets, p. 139. At the time of the beginning of the period of prescription, the land was the community property of Patrick Burke and his wife, and as he was laboring under no disability, if the title had subsequently passed to one subject to such disability, that fact would not have interrupted prescription. But no such transfer of title was shown, and therefore it is fair to presume that C. R. Burke acquired exclusive ownership of the property in a settlement and distribution of the estates of his father and mother, against whom prescription had already run before their deaths.

We also note the contention in appellant’s motion to the effect that the excerpt in our former opinion from appellee’s brief, in so far as it attempted to state the testimony given by J. J. Potts, was not his testimony, but was an affidavit which he had formerly made, and which was offered in evidence to contradict and impeach him as a witness. Counsel for appellant are correct in the contention that the statement copied as the evidence of the witness Potts is in the form of' an affidavit, but the statement of facts does not make it clear as to which party put the affidavit in evidence, but it is probable that it was introduced by appellee, and it is a fact that Potts testified upon the witness stand that so much of that statement as credited him with saying that he knew the alley was there, and had always known it as a public alley, was improperly placed in the document, and was overlooked by him before he signed it. However, the witness Chamberlain, who prepared the affidavit, contradicted Potts’ testimony in that regard, and it was for the jury to determine which was correct, and whether or not Potts made the statement incorporated in the affidavit.

Having concluded that the judgment should be affirmed upon the theory of prescription, we deem it unnecessary to discuss at length the questions of dedication and estoppel.

The general rule seems to be that when an individual, acting for himself, sells a portion of a body of land and agrees with the other party that it is bounded by a street or alley, and so describes it in the deed, such purchaser, as against his vendor or those holding under him with notice, will have an easement in the property represented as a street or alley, which easement the courts will protect. Whether or not that rule would apply to sales made by an administrator or other trustee need not be determined in this case, as the judgment can be affirmed without deciding that question.

As stated in our former opinion, we might affirm the judgment in this case because of the incompleteness of the statement of facts. We have not pursued that course, but deem it proper to again call attention to that point and to utter a warning against such unsatisfactory procedure. Not only has the appellant failed to bring to this court all the testimony that was introduced at the trial, but much of the evidence given by witnesses is so stated as to be unintelligible to one who has no other source of information than the statement of facts. In other words, the stenographer who reported the case, in many instances, uses language like this, which is copied in the statement of facts without any further explanation: “There was a house located here (indicating)“there was a fence there (indicating).” To the jury and attorneys engaged in the trial of the case and seeing the witness point to a particular place upon a map or sketch, that testimony may have been both intelligible and important; but, considering the manner in which it appears in the statement of facts, it is unintelligible and meaningless to us. This is not the first instance in which this procedure has occurred. This evil seems to be growing; and, unless it is corrected, this court will feel justified in disregarding such incomplete statements of fact.

The motion for rehearing has received careful consideration, and our conclusion is that it should be overruled; and it is so ordered.
      cg^>For other oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes