author: HALL, J.

text:
    MOTE et al. v. THOMPSON et al.
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 27, 1913.
    Rehearing Denied May 17, 1913.)
    1. Taxation (§ 805) — Delinquent Taxes— Void Judgment of Sale — Dimitations.
    A void judgment for delinquent taxes has no legal effect, and the running of limitations will not give it any validity.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1593-1597; Dec. Dig. § 805.]
    2. Taxation (§ 639) — Sales fob Delinquent Taxes — Jurisdiction of Court — Statutes.
    The right to sue for delinquent taxes and to foreclose a tax lien is wholly statutory, and real estate which has been rendered for taxes which have been paid under erroneous description in the assessment rolls or lands which have been doubly assessed and taxes paid on one assessment and lands which have been assessed and taxes paid thereon in a county other than the one in which they are located are by express statute removed from the jurisdiction of the court to render judgment for delinquent .taxes.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1302; Dec. Dig. § 639.]
    3. Taxation (§ 530) — Delinquent Taxes— Judgment — Validity.
    Where the record owner of real estate rendered the same for taxes and paid the taxes thereon within the time limited by law, a judgment for delinquent taxes in an action against unknown owners was void, because beyond the jurisdiction of the court, the record owner not being chargeable with any fault, and it may be collaterally attacked by proof of fact of payment of taxes.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 985, 988; Dec. Dig. § 530.]
    4. Taxation (§ 642) — Delinquent Taxes— Actions — Jurisdictional Prerequisites.
    Under Sayles’ Ann. Civ. St. 1897, art. 5232, providing that on affidavit averring that the owners are unknown to the attorney for the state, and cannot be ascertained, the parties in a suit for delinquent taxes shall be cited and the citation shall be published, the affidavit is a prerequisite to the filing of the suit and citation by publication is unauthorized except on the filing of the affidavit, and the judgment without it is subject to collateral attack.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1305-1307; Dec. Dig. § 642.]
    Appeal from District Court, Hutchinson County; N. P. Willis, Special Judge.

      Action by T. J. - Thompson and another against Plora Mote and others. Prom a judgment for plaintiffs, defendants appeal.
    Affirmed.
    Ben I-I. Kelly, of San Antonio, and Mike E. Smith, of Ft. Worth, for appellants. Barrett & Jones, of Amarillo, for appellees.

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

   HALL, J.

T. J. Thompson, joined by his wife, Elizabeth Thompson, née Elizabeth Mote, W. S. Mote, and Isabel Harrison, née Isabel Mote, claiming as heirs of H. O. Mote, deceased, filed this suit in the district court of Hutchinson county against Plora Mote and her husband, J. J. Mote, to recover their interest in section 73, block R, certificate 71, patent No. 72, vol. 40, G. B. & C. N. G. Ry. Co. lands in said county. Thompson and wife claimed one-fifth interest inherited by Mrs, Thompson from her father, and also one-fifth interest purchased from J. J. Mote and Plora Mote, appellants. A one-fifth interest of John C. Mote had been transferred to C. Coffee. No question is made upon the correctness of the court’s judgment decreeing intervener, Coffee, his one-fifth interest. The defendant answered by general demurrer and general denial, pleas of limitation of three and five years, purchase in good faith under the tax title from J. A. King, and for improvements made in good faith thereunder, taxes paid, etc. Trial was before Special Judge 1-Ion. N. P. Willis without a jufy, who rendered judgment in favor of the plaintiffs against the appellants for the lands as prayed for, and rendered a judgment for improvements made in good faith in favor of appellants. Appellees in the court below filed a supplemental petition, by which they set out substantially the invalidity of the tax title relied upon by appellants for various reasons, and sought to have said tax title set aside and their title quieted, and also pleaded an exchange in good faith between Thompson and wife of their interest with appellants, by which Thompson acquired the J. J. Mote interest in survey No. 73 from appellants for the Thompson interest in survey No. 75. Appellants filed a supplemental answer, by which they excepted to the supplemental petition on a number of grounds, pleaded the statute of four years limitation against the action of plaintiffs in trying to set aside the tax judgment. The exceptions were overruled. It appears from the record before us that two suits were instituted between the same parties, the other involving title to survey No. 75, and by agreement this action in which the title to survey No. 73 is involved alone has been appealed.

Appellees object to the consideration by this court of appellants’ assignments of error for failure to comply with rules of briefing. While the case is not briefed strictly in accordance with the rules on account of the interest involved, we have decided to waive the informalities and give the matters presented full consideration.

■ The first, second, and sixth assignments of error are grouped, and they attack the action of the court in holding that the tax judgment rendered in Hutchinson county, wherein the state of Texas was plaintiff and the unknown owner of the land in question was made defendant, was insufficient and inadmissible as evidence of title. This judgment was rendered for taxes due for the year 1901. The court’s findings and conclusions with reference to this judgment are as follows:

“(5) I find that on April 10, 1903, a suit was filed in the district court of Hutchinson county, Tex., entitled State of Texas v. Unknown Owner, No. 46, the petition setting up that the taxes for the year 1901 were delinquent on the property described in this paragraph, and that on April 6, 1904, a judgment or order was entered in said cause, by the terms of which the rights of the defendant unknown owner of the property described in said judgment, to wit, abstract 258, C. B. & C. N. G. Ry. Co., certificate 7-1, survey No. 73, 640 acres, were declared to be foreclosed, and that an order of sale was issued, not describing the property as described in said judgment and returned, and on July 5, 1904, the said property was bid in at sheriff’s sale by J. A. King, but I find the above proceedings defective in the following particulars: (A) No affidavit was made by the district attorney or any one else that the owners of said property or their residence were unknown to the district attorney or the attorney bringing the suit, nor that the residence of the owner or owners was unknown to the attorney bringing the suit, as provided by law; (B) the aforesaid judgment or order failed to describe the land in that it did not show in what state or county the land was located nor whether it was located in any state, and said description is insufficient to identify the land; (C) no report of the sale was made by the sheriff to the State Comptroller of Texas, nor to the commissioners’ court; (E) the sheriff made no return on the citation to unknown owner and made no showing that he executed the writ; (P) the plaintiffs were not made parties to the said tax suit; (G) the order of sale does not describe the judgment, nor does it show that it was issued on this foreclosure order or judgment.
“(6) I find that neither T. J. Thompson, his wife, Elizabeth Thompson, Isabel Harrison, nor W. S. Mote, were unknown owners of the property in question, but they were known record owners, holding the record title, and that the use of any kind of diligence on the part of the district attorney or those conducting the proceedings would have disclosed said persons as owners. I find that T. J. Thompson for himself and wife and the other heirs paid taxes to the tax collector of Hutchinson county, Joe Box, during the years 1902, 1903, and 1904, and the owners of said property were thus known to said tax collector at the time of and before the filing of this said tax suit and at the time of the rendition of said judgment.
“(7) I find that neither T. J. Thompson, Isabel Harrison, nor W. S. Mote were made parties to said foreclosure tax suit, nor were they cited therein, nor did they know of the same, nor did they file or waive answer or take any part therein. * * *
“(10) I find that all of'the parties to this suit, both plaintiffs and defendants, were on all the dates herein mentioned, are now and always have been, nonresidents of the state of Texas.
“(11) I find that for the year 1901 the land involved in this suit was assessed and taxes paid thereon in a county other thian the one in which it is located, and that for said year there was a double assessment and taxes paid on one assessment. That for the year 1901 T. J. Thompson for himself and wife, and for all of the other heirs, including all the plaintiffs in this suit, paid the taxes during the month of October, 1901, in Travis county, Tex., and paid same prior to January, 1,1902. I further find that T. J. Thompson, for himself and for all the heirs of H. C. Mote, including all the plaintiffs, paid the taxes on all the property involved in this suit for every year beginning with 1888 and up to and including 1911, and that he so paid all of said taxes prior to delinquency; that he paid all of said taxes for all of said years up to and including 1901 to the Texas ¡State Comptroller at Austin in Travis county, Tex., and that beginning with 1902 he paid them to the tax collector of Hutchinson county, Tex., and that said taxes were never at any time delinquent during said period; that the said foreclosure judgment and tax sale was for taxes alleged to be delinquent for 1901, and that they were not delinquent for said year 1901 on the property involved in this suit, and never were so delinquent.
“From the foregoing facts, I conclude as a matter of law:
“(1) Because of the irregularities above set forth that the court did not acquire jurisdiction to render the judgment rendered, and that the proceedings, judgment, and judgment roll are so defective as not to be binding on T..J. Thompson, his wife, Elizabeth Thompson, W. S. Mote, nor Isabel Harrison.
“(2) That, even if the judgment appeared regular on its face and. all the proceedings appeared regular, it would not be binding on T. J. Thompson, his wife, Elizabeth Thompson, W. S. Mote, nor Isabel Harrison, they not having been made parties thereto, and knowing nothing of the same, not having been cited and they not being unknown owners.
“(3) Because of the fact that the taxes for the year 1901 were paid in Travis county, Tex.; that is, because this land was assessed and taxes paid in a county other than the one in which it was located, and because it was doubly assessed and taxes paid on one assessment that this brings it strictly within the exemption provided in the statute under which foreclosure was sought to be had, and that it is expressly therein provided that the land under such circumstances shall not be deemed subject to the provisions of this chapter. I therefore find the tax proceedings, judgment, and order of sale were null and void and subject to collateral attack, and that there was no statute authorizing the proceedings, and that the error is fundamental.”

Under the three assignments grouped as stated above, appellant insists that the judgment in the tax foreclosure suit reciting the facts essential to jurisdiction, like any other judgment, is presumed to be valid and binding on the parties, and cannot be questioned in collateral proceeding; there being nothing in the judgment record to contradict the recitation of the jurisdictional facts, the judgment in this proceeding must be held to import absolute verity; and, even if this should be viewed as a direct attack on the tax suit judgment, nevertheless, the action seeking to void the. force of the judgment is barred by the statute of limitations of four years.

If, as contended by appellees, the judgment is absolutely void, no period of time under any statute of limitation could give the judgment validity. As was said by this court in the case of Southern Railway Co. of Texas v. J. C. Vance, 155 S. W. 698 (not yet officially reported): If the court had no power to render the judgment, “his act was void. If void, it had no legal effect, and was no order at all. It gave no right, and none could be obtained under it. It neither binds nor bars any one. All acts performed under it and claims of right flowing out of it are void, and therefore subject to attack collaterally or direct by any one.”

The difficult question in this case is the right of appellee to attack the judgment collaterally. The undisputed evidence discloses, a'nd the court so found, that the plaintiffs had paid their taxes for the year 1901 in due time, and that such payment had been made to the Comptroller at Austin. This question was considered in the case of Hollywood v. Wellhausen, 28 Tex. Civ. App. 541, 68 S. W. 329, and a writ of error was denied by the Supreme Court. Fly, Justice, in that case, said: “The suit for taxes against the unknown owner was brought by virtue of chapter 5a, tit. 104, Sayles’ Ann. Civ. St., which was passed in 1897. After fully and clearly setting forth the mode of procedure in the collection of delinquent taxes, it is provided in article 5232Z that ‘real estate which may have been rendered, for taxes and paid under erroneous description given in assessment rolls, or lands that may have been doubly assessed and taxes paid on one assessment, or lands which may have been assessed and taxes paid thereon in a county other than- the one in which they are located, or lands which may have been sold to the state and upon which taxes have been paid and through error not credited in the assessment rolls, shall not be deemed subject to the provisions of this chapter.’ Under the article quoted none of the provisions of the law embodied in chapter 5a have any application to the land of appellant. He had assessed it and had paid the taxes on it. The fact of the assessment must have ■been known to the assessor, when the suit was brought, and the affidavit made that the land belonged- to some unknown owner, the court found that the assessor and county attorney knew that it was the homestead of appellants. Knowing these facts, the suit was filed, process was obtained for unknown owners by the affidavit of the county attorney, and the homestead of appellant sold for taxes which they did not owe. They had done all required of them by law in rendering their property for taxation, and then paid the taxes.” The opinion then discusses facts peculiar to that case, and, after a discussion of several cases_ bearing upon the question at issue, proceeds: “It follows, therefore, that, unless the facts ih this case brought the tax suit clearly within the purview of the statute, the proceeding was null and void, and the judgment was open to attack in any judicial proceeding. The statute expressly says that real estate erroneously assessed on which the taxes have been paid or lands that have been doubly assessed, and the taxes paid on one assessment, both of which conditions according to the findings of fact exist in this case shall not be deemed subject to the provisions of the chapter on ‘collection of delinquent taxes.’ There would have been no reason for the enactment of the article in question if it was intended merely to designate defensive matter that could be interposed by a defendant, and the language is such not to admit of such construction. Had it been intended as a provision to indicate what defensive matter might be pleaded by a defendant, it would have said so, and would not have used terms of express exemption from the provisions of the chapter. This strongly appears from the latter part of article 5232o, Sayles’ Ann. Civ. St., where it is provided: ‘In all suits for taxes due the defendant shall be entitled to credits he can show due him for any year or number of years for which he may be able to procure receipts,’ etc. For some reason the Legislature deemed it proper and expedient to exempt from the law for the collection of delinquent taxes certain real estate, and while it might be argued that, where a man’s property has been properly rendered and the taxes paid, it should also be exempted, the answer is that the Legislature did not so provide, but placed the latter class of conditions under the head of defensive matter which must be urged in the trial of the proceeding to collect the taxes. There is no doubt in the minds of this court that had there been no exemptions in the statute, and the judgment for the taxes had been rendered after a full compliance with the requirements of the statute, however great a hardship it might entail, and, however unjust and unconscionable it might appear, appellant could not have attacked the validity of the judgment in this proceeding; but, under the conditions surrounding his property, there was no statute justifying a suit and the judgment for the taxes was consequently null and void. * * * It is provided in article 5119, Sayles’ Ann. Civ. St., that the assessor may, when property has not been rendered for taxation, assess the same to the unknown owner, if he is unknown. In this case the assessor knew the owner of the lot in controversy and knew that he was occupying it as his homestead; and there are numerous authorities which hold that an assessment made to an unknown owner, when the owner is known or could be ascertained, is void. See 25 Am. & Eng. Enc. Law, p. 213, tit. ‘Taxation,’ where list of authorities is given. In the case of Whitney v. Thomas, 23 N. Y. 281, it was said: ‘But the assessors have no jurisdiction to assess except as the statute prescribes; and, unless they pursue the directions of the statute, the assessment is unauthorized and void.’ It was held that a sale under an assessment made to one other than the owner was null and void.”

The right to file suit for the collection of delinquent taxes and to foreclose a lien upon the property subject to the taxes exists solely by reason of the statute referred to in the foregoing opinion, and this special statute confers the jurisdiction upon the district court to foreclose the lien, and without the statute the district court would have no such jurisdiction. By express provision there is removed from the jurisdiction of the court (1) all real estate which may have been rendered for taxes and paid under erroneous description given in assessment rolls; (2) lands that may have béen doubly assessed and taxes paid on one assessment; (3) lands which may have been assessed and taxes paid thereon in a county other than the one in which they are located. It is seen that the property involved in this suit is expressly exempted by at least two of the provisions of the above-quoted statute. Plaintiffs had complied with the laws of this state when they rendered the land for taxes to the Comptroller, and paid the taxes within the time limited by law. It further appears, and the court’s finding is sustained by the evidence, that the assessor of Hutchinson county knew prior to the institution of this suit the names- oí the owners' of this land. 50 far as we are able to glean from this record, no fault whatever is chargeable to the appellees, and the language used by Judge Fly is applicable to the issue here presented. There was no delinquency on plaintiffs part. The only delinquency which we have been able to find in the record was on the part of the state and county officials in not notifying each other of the payment of the taxes, of the ownership of the land, and the fact that it had been listed as delinquent, as they were required to do by articles 7685, 7687, and ’7692, Revised Statutes of 1911. It has been held in Fitzhugh v. Custer, 4 Tex. 391, 51 Am. Dec. 728, that the doctrine that a judgment must stand unless reversed for error or set aside for fraud does not apply where the want of jurisdiction is -made a question, and that a want of jurisdiction may always be set up when a judgment is sought to be enforced or any benefit is claimed under it; and that the rule is not inconsistent with the principle which ordinarily forbids the impeachment or contradiction of a record. The proof introduced herein in no manner tended to contradict the record. The court had no jurisdiction of the subject-matter. The res had been expressly reserved and withheld from the jurisdiction of the district court in the special statute which gave that court the power to foreclose tax liens upon the land. The design of the Legislature in enacting the delinquent tax law was to provide a method for the collection of unpaid taxes by judicial process. If the taxes had been paid prior to the institution of the suit, the land did not come under the condemnation of the law, and the court had no jurisdiction of the subject-matter.

It further appears from the record that the district attorney did not swear to the petition and that no affidavit was made as a prerequisite to the filing of the suit, and the court so found. This is a jurisdictional, question, as held by Speer, Justice, in Stoneman v. Bilby, 43 Tex. Civ. App. 296, 96 S. W. 52, in which writ of error was denied by the Supreme Court. In that case it is said: “We think it to be understood from this language” (after quoting from article 5232o, Sayles’ Revised Civil Statutes) “that as a condition precedent to the court’s power to inquire into the merits of the action the affidavit provided for must have -been filed. In other words, q citation by publication is not authorized except upon the filing of such affidavit, and, of course, a judgment without citation may be shown to be invalid if properly attacked. * * * This brings us to a consideration of the further question whether or not the failure to file a proper affidavit in the original tax foreclosure suit can be shown in this, since the attack is collateral. We are not unmindful of the rule laid down in the Texas cases above cited, to the effect that on collateral attack the presumption is that a sufficient affidavit was filed to authorize the issuance of the citation by publication. But we understand the rule to be that this is a rebuttable presumption unless rebutting it involves in some way the contradiction of the record.” In this case the judgment does not recite that any affidavit was made, and we think the proof was admissible. The conclusion we have reached in passing upon the assignments above discussed renders it unnecessary for us to consider the remaining assignments urged by appellant.

Finding no reversible error in the judgment, it is affirmed.


source: Caselaw Access Project

author: HENDRICKS, J.

license: Public Domain

text:
    LUCAS v. McFARLAND.
    (Court of Civil Appeals of Texas. Amarillo.
    April 28, 1913.)
    Public Lands (§ 175) — Location—Survey— Rejection bt Land Office — Evidence.’
    Evidence held to require a finding- that a survey was improperly located, and that a ruling of the land office rejecting- it for that reason was proper.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 555-570-; Dec. Dig. § 175.]
    Appeal from District Court, Hemphill County; F. P. Greever, Judge.
    Action between . George B. Lucas and George B. McFarland. Judgment for defendant, and plaintiff appeals.
    Reversed and rendered.
    B. M. Baker and Willis & ¡Willis, all of Canadian, and Geo. S. Walton, of Austin, for appellant. R. E. Taylor and W. T. Allen, both of Henrietta, for appellee.

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

   HENDRICKS, J.

The above cause, resolved into a boundary suit, involves the position of survey No. 21, Day Land & Cattle Company certificate, claimed by the appellant, Lucas, and school section No. 6, in block M — 24, in Hutchinson county, Tex., claimed by the appellee, McFarland. The same principle of law announced in the case of Howard B. Crosby et al. v. N. A. Stevenson et al. (case No. 410) 156 S. W. 1110, decided at this term, involving the same question of boundary (a part of the same land in both suits being the same), control the disposition of this cause, except that the matter of agreed boundary arising as an issue in the Crosby Case does not arise here.

This cause was decided upon this record prior to the decision of the other cause, although practically submitted with the other cause, on account of the identity of the boundary questions involved. In case No. 410 — -the Crosby-Stevenson Case — we find the history of the matter much more extended, and the facts, direct and collateral, much more voluminous, clarifying the issues involved, and with reference to some of the Held notes much more satisfactory; but in this record the evidence sharply and properly raises the questions of the conflict of boundary between the Day Land & Cattle Company • certificate and the school section No. 6 in M — 24, as was raised in the Crosby Case, and whether McLean, the surveyor who surveyed M — 24, by beginning at the northwest corner of survey No. 135 in block 5 — T, for section No. 1 of M — 24, ever got anywhere for that beginning. Whatever theory the resurvey of M — 24 in 1908 by Surveyor W. D. Twichell was based upon, it is clearly apparent that said surveyor in reconstructing M — 24 and displacing it from the headrights and in reality tearing it from M — 23 on the southeast, there is an assumption, whether intended or not, that McLean in the original survey of M — 24, in his beginning in 1881, was at the same place Mr. Twichell began in 1908 for the purpose of his resurvey. M — 23, with its beginning survey, indirectly ties to 5 — T and directly ties to K' — 2, evidenced by this record; and the effect of R. I-I. Spiller’s testimony is that M — 24 is tied to the southern work, and also tied to the Walters and Bason headrights, and .the effect of other testimony is that M — 24 is tied to other headrights, as well as calling for 5 — T, and the strength of this testimony is that Mr. Twichell surveyed section 49 in M — 23 “in accordance with the southern lines of calls” (which was evidently a resurvey) and the maps show 50 in block M — 23 is tied to the Bason; and while Mr. Twichell does say “that it is not a fact that the intervening surveys tie on to each other so on south down to the cottonwood tree,” which Surveyor H. B. Spiller speaks of in this record; however, he also says that he supposes a line of surveys could be traced through the headrights by the surveys from the original ones from section 4 (meaning in M — 24), and, if you trace them down to the cottonwood tree on the river and leave them there, the excess will be created if the calls were not broken, and if you break the calls there would he a vacancy. The land office breaks the calls of M — 24 from 5 — T, maintaining it with the southern work and with the headrights, and Mr. Twichell (while we suppose the contention is that he did not break anything, because he began at the beginning all of No. 1 in M — 24, following them out by course and distance) in reality broke the calls of M — 24, tearing it from the Bason and Walters and the headrights and logically displacing it from M — 23, with reference to which latter survey his own work at another time suggests is tied to the southern work; and this break is made by the appel-lee ássuming that Twiehell’s work, following the Gray work in 1890, and McLean’s work, coincide as to the beginning corner when the latter constructed M — 24 from said beginning call (if he constructed it from any call), which is the purést' conjecture in this cause; this record is convincing that no one knew where the northwest corner of 5 — T was situated, the beginning of M — 24, until 5 — T was actually surveyed from the Goldwater in Hansford county by Gray in 1890, who put up monuments, from which that corner could be easily ascertained by course and distance, which was done by Twichell. By the same logic you could tear M — 23 from the Bason and the Price, if it should happen to be tied to the Price by its calls, and move the whole thing to 5 — T and R — 2. We believe the land office was correct in rejecting such a survey.

It having been shown in this record without any contradiction that the field notes of survey 21 of appellant Lucas, in his amended petition, are in harmony with the survey made by that certificate, in connection with the Gray work in 1890, when tied to M — 24 and R — 2, and then located on the ground upon the vacancy, when the land office held M — 24 to the headrights in the southern work, this cause is reversed and rendered for the appellant against the ap-pellee for the lands, described in his said second amended original petition.

Reversed and rendered.


text:
    CROSBY et al. v. STEVENSON et al.
    (Court of Civil Appeals of Texas. Amarillo.
    April 26, 1913.)
    1. Boundaries (§ 3) — Natural or Artificial Objects — Course and Distance.
    Course and distance will control natural marks or boundaries, because it is apparent on the face of the grant that the natural or artificial objects were inserted by mistake, or were laid down by conjecture, and without regard to rule.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec. Dig. § 3.]
    2. Boundaries (§ 6) — Lines and Corners— Order — Reversal.
    The order in which a surveyor gives the lines and corners in his certificate of location is of no importance in finding the true position of the survey, since the location as determined by reversing the courses is as lawful and persuasive as following the order in the certificate.
    [Ed. Note. — Eor other cases, see Boundaries, Cent. Dig. §§ 47-57; Dec. Dig. § 6.]
    3: Boundaries (§ 3) — Identification of Survey — Footsteps of Surveyor.
    The rule that in the identification of a survey the footsteps of the surveyor on the ground should be followed by whatever rule they may be traced cannot be applied,. unless the survey and the footsteps of the surveyor are actually found and identified.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec. Dig. § 3.]
    4. Boundaries (§ 3) — Locative Calls — Importance — Adjacent Surveys.
    In determining the relative importance of locative calls, designations for adjacent surveys are artificial objects in determining the boundaries of grants.
    [EÜ. Note. — For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec. Dig. § 3.]

      5. Boundaries (§ 3) — Beginning Corner.
    The beginning corner in the plat or certificate of a survey is of no higher dignity or importance in locating it than any other corner therein, since the beginning or intei’mediate call may be controlling when read in the light of the surrounding facts and circumstances.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec. Dig. § 3.]
    6. Boundaries (§ 37) — Agreed Boundary-Evidence.
    In trespass to try title to a survey of school lands, evidence held insufficient to establish an agreed boundary.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184-194; Dec. Dig. § 37.]
    7. Public Lands (§ 175) — School Lands— Agreement of Resurvey — Acceptance by Land Office — Condition Precedent.
    It is a condition precedent to the consummation of an agreement for the resurvey of school lands by a state surveyor as authorized by' Rev. St. 1895, arts. 4251-4283c, that the resurvey be accepted by the land office, unless waived by the parties.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 555-570; Dec. Dig. § 175.]
    Appeal from District Court, Carson County ; F. P. Greever, Judge.
    Action between Howard B. Crosby and others and N. A. Stevenson and others to establish a boundary line. From a judgment in favor of the latter, the former appeal.
    Reversed and remanded.
    Geo. S. Walton, of Austin, and Goree & Turner and Stephens & Miller, all of Ft. Worth, for appellants. R. E. Taylor and W. T. Allen, both of Henrietta, for appellees.

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

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

   HENDRICKS, J.

In deciding this cause and the matter of boundary the inserted map indicates the conflict involved in accordance with the key, and the light and heavy dotted lines manifested upon same; but the record is so voluminous with such a multitude of facts it is difficult to illustrate the controlling issue, which of itself may be rather simple. Surveyor 'Maddox in 1874, in accordance with a scheme of surveying which began in Lipscomb county (the northeast county of the Panhandle), established in Hansford county (immediately west of Lipscomb) certain corners on and near Palo Duro creek, and then ran west in the same county to what was' then known as Rabbit Ear creek (now known as the Coldwater), and established several connecting corners on and near this creek in block No. 2, G. H. & H. Ry. Co. survey, in the western portion of that county, and finally, and from 'one of these established corners on the Rabbit Ear creek, in said block close to the west line of Hansford county, he continued on west and south in Sherman county, following the west line of Block 45, in said county, and thence on to the Canadian river; meandering this river east into I-Iutchinson county, where north of said river this land is situated, and the identity of the river surveys relative to the matters involved here are determined and fixed, this surveyor then projected, without any actual survéy, block '5 — T, from his work on the Rabbit Ear creek, in Hansford county, tying the same to the southeasterly portion of block No. 2 G. H. & PL Ry. survey in said county, extending said block 5 — T from said block 1 2 . down into Hutchinson county. From the river base established upon the ground, this same surveyor, through intermediate surveys, projected north of the Canadian river the headright -surveys partially shown upon this map, and designated as the Neil, the Hall, the Walters, and the Bason, and the map first constructed by the land office, based upon the work of Maddox, of course indicated a vacancy between the said headrights and 5 — T, as that block tied to block 2, G. H. & H. Ry. Co. survey, in Hansford county, with connections upon the Rabbit Ear creek, and 5 — T was never closed with and never intended to meet the head-rights projected from, and connected to, the basic river surveys. The extent of the vacancy between 5 — T with its connections on Rabbit Ear creek, and the headrights connected to the Canadian river, could not, of course, become definitely known until actually surveyed. It seems, however, to be conclusive in this record that the headright surveys mentioned constructed from the connections on the river have never been in dispute and their relative positions from the identified points on the river from the time determined by Maddox have never been changed; the variations of distance and location' of these headrights by different work, being so slight as to be immaterial. After this work by Maddox in 1S74, Surveyor . Summerfield in 1879 put in block R — 2, tying it pn to 5— T, and, from this work another jnap was made by the land office, at the same time moving block 5 — T over a mile further north than indicated by the first map (delineated upon the work done by Maddpx), moving it opposite and still north and east of the head-rights, the “Neil” and the “Hall.” This subsequent map still indicated a vadancy 'between the headrights (the Neil, the Hall, the Walters, and the Bason) and block 5 — T, and in 1881 E. C. McLean,' another surveyor, for. the purpose of absorbing this vacancy, put in block M — 24 involved in this suit. The situation, according to the maps at the time McLean did his work, and the map measurement resultant from same, - placed 5 — T at this time 1,312 varas further south and 2541^ varas further east than was thereafter determined, which, of course, would make the real situation of that block that much further north and we'st; and this real situation; was' determined by State Survey- or Gray,[ assisted by'. Deputy; Surveyor Spiller, who'in 1S90, by course'and distance, from- the • correct connections on’ the Rabbit Ear [creek, in Hansford county, established 5 — T and'R — 2 upon the ground... Section 135, in block 5 — T, the northwest, coiner of which was not direqtly ascertained by Spiller and Gray, but which was easily ascer-tai'ned by Twichell from known points established by the former from course and distance, is not in dispute; and in 1908 W. D: Twichell, who made the survey, indicated by the light dotted lines, began at the actual northwest corner of 135 in block. 5 — T, in order to obtain survey M — 24, because McLean in his field notes for section 1 of M — 24, when he surveyed it, 27 years previously, said that said section No. 1 began at that corner; Twichell constructing block M — 24 according to the light dotted lines, and merging it into the heavy dotted lines of the old survey, where they coincide, as indicated by the map, covered the Day Land & Cattle Company survey, as shown therein and conflicted with the other sections of the old survey to the extent indicated, the appellees contending in this cause that the real northwest corner of section 135 in 5 — T, surveyed by Twichell, based upon Gray and Spiller’s work, should control as a beginning corner in the constructions of M — -24; the appellants asserting that McLean’s northwest corner of 135, block 5 — T, as the beginning corner of survey 1, block M — 24, is not known, and further contending that block M — 24 should not be disconnected from the head-rights on the west and south, for which M — 24 also calls.

In putting m block' M — 24 McLean in September, 18S1, by the field notes of section 4 of that survey, fastened it to the Bason, the Walters, and the Hall; for section 3 in said block he called for the Neil at a point 752% varas north of the north line of the Hall headright, and then east 23% varas to the northeast corner of the Hall, making section 3 conform to the jog in the lines of the Neil and the Hall; and he also tied section 2 of that block to the Neil at a point 1,429% va-ras on the east line of the William Neil, south from the northeast corner of same, and calls for the southwest corner of section 1 of M — 24, on the east line of the William Neil 1,429 varas south from the northeast corner of that survey, and adding 1,550% varas gives the full length of the west line of section 1, in M — 24 and the northwest corner of same, and 1,212 varas east of that point is the northeast corner of section 1 and the supposed northwest corner of section 135, block 5 — T. When Gray and Spiller surveyed block 5 — T from the proper connnec-tions on the Rabbit Ear creek in 1S90, and actually located it on the ground, the general Land Office moved that survey, and block R — 2 tied to it to a point north and west in accordance with its actual location on the ground; but with its maps the land office asserted the position of M — 24 on the ground, maintaining its original status with the headrights to which McLean had fastened it and logically made it conform to section 50, M — 23, in said block on the southeast located by McLean in February, 1882, and which was a part of a scheme of the McLean surveys, practically put in at the same time, the land office rejecting the survey of Twichell; and while, of course, the determination of that department upon past work is not a determination of a grant previously made, we think, however, its action in this instance is clearly correct. 5 — T and R — 2, tied to and following it, should be moved to an appropriate position according to its location on the ground; 5 — T begins in Hans-ford county and ties to block 2, G. I-I. & H. in that county, and to the connections on Rabbit Ear creek, and were never tied to the headrights, as stated, but because the beginning corner of survey No. 1, in block M — 24, begins to call at the northwest corner of section 135, in 5 — T, and because certain lines of other sections in M — 24 call for R — 2, it does not necessarily conclude that M — 24 is to follow 5 — T and R — 2, and is to be torn from the headrights, moved west entirely off the headrights and away from the Bason and the Walters, and logically moving it from the scheme of some of the McLean surveys made practically at the same time; and necessarily if it were not proper to tear M — 24 from the headrights, and from M — 23 and M — 17 and 18 (to which latter three it inferentially belonged), a vacancy and not an excess was existent between M — 24 and. 5 — T and R — 2, which was covered in 1890 by the Day Land & Cattle Company’s certificate No. 21. If 5 — T and R — 2 were properly moved north and west (which is admitted), and if M — 24 was properly retained adjacent to the headrights (which is denied), this vacancy and not an excess properly existed and this certificate appropriated the land.

In determining the above question, as well as other conflicts, and in attempting to ascertain where McLean landed for the northwest corner of survey No. 135, 5 — T, it is noted that the distance between the northeast corner of the Neil survey and the northeast corner of the Robert Sikes survey (which is survey No. 54 in block M — 23), is 1,550% varas; and the original sketch returned by McLean to the General Land Office, with his field notes of block M — 24, the northwest corner of survey No. 1 in that block, is just 1,500% varas north of the northeast corner of the William Neil, and we believe with appellants that at least if you consider his field notes and calls for the headrights, and according' to McLean’s conception of the northwest corner of section 135, 5 — T, that corner was located 1,550% varas north and 1,212 varas east of the northeast corner of the William Neil, considering the east line of the Sikes. In short, according to the conformation of the surveys — that is, the head-rights and the Sikes in M — 23, and the identity of distances around the surrounding surveys, according to calls — there is a coincidence in the mathematical results of the length of these lines, which without something fixed upon the ground indicates very strongly ■ an adherence by McLean to the southern work. If McLean two years after Summerfield’s work actually established the northwest corner of survey 135, in block 5 — T, at the place Twichell established it in 1908 (the latter following Gray and Spiller’s work in 1890), the appellees’ position would be sound. If they identify McLean’s corner for 135 with the corner Twichell surveyed, it is done by conjecture without any evidence that McLean ever arrived at the same place in 1881. We have to speculate where McLean ascertained the northwest corner of 135, if he surveyed it at all in attempting to locate that corner. Twichell, who erected ap-pellees’ survey, testified that his information was that, “if block 5 — T was run out by course from the known corners on the Palo Duro in Hansford county, they do not occupy the same position as if located from connections on the Coldwater.” When Gray and Spiller ran out 5 — T in 1890 from the Coldwater, it was found that Maddox (if not previously known) in establishing his corners on Rabbit Ear creek, from connections he made on the Palo Duro, made a mistake of 1,312 varas north and south, and 254% varas east and west; the only evidence we have of McLean is a statement to the land office as to his connecting lines for M — 24, and it is not very clear just what McLean did, except that it is clear he did not connect 5 — T with the connections on Rabbit Ear creek, and it is strongly inferable when you consider his whole statement that he intended to connect M — 24 to his other work on the south, the headrights on the west, as well as to connect with the established corners on the Palo Duro. He says in his certificate: “On north side of river the surveys in B and B — 2 were found and identified also surveys No. 11 and 12, in block H, and the southeast corner of survey No. 11 in block M — 17, and northeast corner of survey No. 2, block M — 16. The surveys in block 5 — T, block R, and block M — 16 and the surveys attached thereto were located by careful connections made with well-identified corners in block No. 45 for the H. & T. C. Railroad Company, they being the nearest controlling corners that could be identified with absolute certainty. See field notes of surveys No. 32, 43, and 48 in block 45 for H. & T. C. R. R. Co. in Hansford county, with which surveys connections were made. Careful connecting lines were run between the various surveys that were identified as herein above named, and their respective and relative locations are truly set forth in the certain sketch 5, in the General Land Office on the 26th day of July, 1882, showing all surveys made by me previous to that date in Hutchinson county, which sketch is hereby made a part of this certificate. The distances called for in the field notes returned by me are also referred to as evidence of the exact locations of all surveys found by me on the ground. All surveys not found by identifying corners or bearings were given the positions that course and distance from points that could be identified would give them except the surveys fronting on Canadian river. Piled 11/8/1882. Dated 18th day of Oct., 1882.”

The southeast corner of survey No. 11 in block M — 17 and the northeast corner of survey No. 2 in block M — 18 were mentioned by him as having been identified in connection with M — 24. Those sections were a part of the “various surveys” used by him in his connections for that purpose. The Land Office plat “the certain sketch 5” filed by him July 26, 1882, and in this record, clearly exhibits blocks M — 17, M — 18, M — 23, and M — 24 (the latter in controversy) as connecting by succession as adjoining surveys. After McLean surveyed M — 24, there was a vacancy left by him upon the east and southeast, afterwards absorbed by section 50, in M — 23, and the field notes for this section call for surveys 28 and 30 in that same block, M — 23, as well as the south line of 8 in block M — 24, and calling for the Bason, to which section 4, M — 24, is fastened. For survey 49 in block M — 23 not shown on this map, and which took up a part of the vacancy after he surveyed M — 24, it is true Re calls wholly for surveys in block R — 2, which it will be remembered is tied to 5 — T; but it could not be contended with any degree of reason that section 49 with or with•out a resurvey should ever be tom out- of block M — 23 and follow R — 2 to the north.

When McLean says in his certificate with reference to connections for M — 24 that the surveys in block 5 — T and block R — -2 were located by careful connections made with well-identified corners in block 45 on the Palo Duro in Hansford county, we cannot construe his statement to mean that he actually ran it out from the Palo Duro like Gray, and Spiller did by course and distance from the Rabbit Ear creek; there is not a trace of him in this record as to any such work, and the probabilities from the evidence in this record are strongly against it. When he says his “careful connecting lines were run between the various surveys that were identified” the surveys in blocks B and B — 2, 11, and 12, in block H, and the common corner of surveys in M — 17 and M — 18 were only meant, they were the ones identified; but he only says he “located” 5 — T by careful connections made with the “well-identified corners” on the Palo Duro. You may "locate” by careful connections “made with well-established corners” without a survey on the ground. He ran the other connecting lines between the surveys which were “identified” but his certificate does not say he ran from the Palo Duro to block 5 — T. He “located” it by “careful connections.”. However, assuming that he did actually survey to some point for the northwest corner of 135 in block 5 — T, to get the beginning corner of No. 1 in M — 24, his field notes do not call for any object, and this record is silent if he ever made any — -Twichell did not find any. Appellees have to assume that Me-lgan arrived at the same place Twichell did, whose resurvey they are relying on, when Twichell’s survey is connected to the Rabbit Ear, McLean’s to the Palo Duro, and an absolute absence of identity.

We believe a few simple principles with reference to the location and appropriation of grants will solve this question. Necessarily “it is the purpose of the government and the locator to select a particular tract of land and designate it from the mass of the public domain.” Stafford v. King, 30 Tex. 259, 94 Am. Dec. 304. Of course, this appropriation in the order of strength and dignity, according to natural or artificial- objects, or course and distance, should control, where applicable; but it was begun to be declared as early as the case of Hubert v. Bartlett’s Heirs, 9 Tex. 104, that “there are many cases where the course and distance will control natural marks or boundaries, as where it is apparent on the face of the grant that these (natural or artificial objects) were inserted by mistake, or were-laid out by conjecture and without regard to-rule.” We all know they are not absolute rules of law, and as Chief Justice Gill expressed it in the case of Goodson v. Fitzgerald, 40 Tex. Civ. App. 626, 90 S. W. 900, “at most, they are rules of evidence and are relative in their application,” and as Justice Gould expressed it in the case of Robinson v. Doss, 53 Tex. 507, “to hold otherwise would be to give a greater importance to the rule itself than to the reason of the rule”; and while the applicability or nonapplicability of the seniority of these rules, according to their strength and dignity, are not in question here for the, location of the surveys involved, the principles enunciated are illumi-native — if an alleged controlling call in this ease is- clearly shown to have been a mistake, or is one purely conjectural; and in that case “that rule must be adopted which is most consistent with the intention upon the face of the patent read in the light of the surrounding facts and circumstances.” Stafford v. King, 30 Tex. 257, 94 Am. Dec. 304. We think it is clear from this record that the appellees ground their ease upon the beginning call of survey No. 1, block M — 24, -beginning at the northwest corner of survey No. 135, block No. 5 — T; and, although block R — 2 was originally tied to 5 — T (to which former block, R — 2, some other surveys in M — 24, are tied), still the solution of the location of block M — 24 “hearks” back to 135, 5 — T, and appellee claims under a resurvey by Twichell in accordance with that theory. In a sense there is a partial break in the calls of the sections by McLean in M — 24, all the sections in said survey not having been consecutively tied to each preceding section in every instance, but M — 24 is shown conclusively to have been an homogeneous . survey by him and cannot be torn apart, and they have necessarily so treated it.

“The order in which the surveyor gives the lines and corners in his certificate of survey is of no importance to find the true position of the survey. Reversing the courses is as lawful and persuasive as following the order of the certificate.” Phillips v. Ayres, 45 Tex. 601. Again quoting the Supreme Court for the principle only there invoked: “Appellee relies upon the oft-announced doctrine that the actual identification of the survey, the footsteps of the surveyor upon the ground, should always be followed by whatever rule they may be traced. Stafford v. King, 30 Tex. 257 [94 Am. Dec. 304]. This doctrine, however, cannot, be invoked unless the facts show it to be applicable. The actual survey must -be found and identified. The footsteps of the surveyor must be traced before course and distance should be ignored. Anderson v. Stamps, 19 Tex. 465; Robertson v. Mosson, 26 Tex. 248. To extend the east and west lines beyond the distance stated -in the patent, it devolved upon the appellee to prove that a. ¡line north of that claimed by;-appellant-was actually traced by the surveyor.” Williams v. Winslow, 84 Tex. 376, 19 S. W. 515. While this is not so much .a ease of extending lines as it is one of changing them entirely, and reconstructing practically a different survey by tearing lines from what is ascertained to be known and placing them at a place, where it is not shown the surveyor knew existed, however, we think the principle in the Winslow Case, supra, applicable.

With reference to the determination of the relative importance of locative calls, designations for “adjacent surveys” are within the category of artificial objects in determining the boundaries of grants. Phillips v. Ayres, 45 Tex. 606. It is true we have no evidence here that the headrights at the time McLean made his survey of M — 24 were marked and well known upon the ground, which condition evidently has to occur to fully invoke the principle of calls for adjacent surveys as controlling calls; however, this evidence is replete with the suggestion that at the time he made said survey, and subsequently, from the maps and field notes the headrights could be easily located. If he. assumed the proper locations of these headrights, which he, of course, did, otherwise it was his duty to have run them out before he tied on to them as the vacancy '.to the north and east of them was what he was after, his assumption was correct; although he may have assumed the position of the headrights 'in his calls for adjacent surveys; still, this record showing such easy ascertainment from the bearings upon the river 12 or 13 miles away of the correctness of said headrights, the appellants’ proposition is analogous to the position, and almost complete, of making the unknown yield to the known. Sanborn et al. v. Gunter & Munson, 84 Tex. 297, 17 S. W. 117, 20 S. W. 72.

Again, on this particular proposition, the authorities are settled “that the beginning corner in the plat or certificate of survey is of no higher dignity or importance than any other corner of the survey.” Phillips v. Ayres, 45 Tex. 607. Of course, this principle is like many others, applicable to locative grants. A beginning call, as well as an intermediate call, may be the controlling call, “read in the light of the surrounding facts and circumstances”; but here we have no light by the surrounding facts and circumstances to make this beginning call important, or even of equal dignity with the other calls for the headrights, and our judgment is that the other calls should prevail.

The defendants Stevenson, McFarland, and Chisum especially pleaded an agreed boundary with the appellants Crosby and Hatcher, and we do not think the evidence sufficient to prove the issue. There seems to have been some agreement in writing, not introduced in evidence, as to the settlement of the’ lines by the surveyor Twichell, providing for a resurvey of the 'land. Mr. Twichell testified: “In tying M — 24 on to R — 2 and 5 — T, I followed the calls of McLean’s original field notes and ran course and distance called for in those field notes.” ,On analysis he means, of course, “course and distance” from the northwest corner of 135 M — 24, in accordance with the Gray survey, and as we held, without any proof, that McLean ever arrived at that point. In a letter to Judge S. H. Cowan of Ft. Worth,, in explanation of his work, among other things, he said: “I ran the block out from this beginning (meaning the north west corner of 135, block 5 — T) ignoring the calls for headrights on the west as they' could be reached by no other course nor distance. All the settlers agreed to abandon the calls on the west and south, and accept course and distance, and the state contended that the land in which they still have an interest could not hold the excess under the original field notes.” There is no testimony in this record that Crosby and Hatcher agreed to disregard the calls on the west and south and ignore' the calls for the headrights, and run out M — 24 in accordance with course and distance with Gray’s survey, and Mr. Twichell did not so say on his examination with reference to Crosby’s participation in 'the matter, with whom he had a conversation in regard to same, but summed up the matter finally by saying, “As to what I instructed Crosby I was to do, I was to retrace the lines of the original surveyor as near as science would enable me to do it. I was intending to retrace the lines of the original surveyor” — which the evidence does not show that he ever did. If appellees are dependent upon any agreement with Crosby by letter or otherwise for the purpose ,of binding Hatcher, there is not sufficient agency shown that Crosby, who was a joint owner of the land with Hatcher, could bind him. It is true the testimony doe.s show that Hatcher agreed to a removal of the fences, and instructed Stevenson to move to the lines made by Twicbell, but it is not shown that this was in accordance with the agreement the other settlers had with Twichell to disregard the calls for the headrights, and survey the land only by course and distance from R — 2 and 5 — T.

It is also true that Stevenson said that he did not agree with any of them as to the manner in which Twichell was to run out the lines, and further said that “Mr. Hatcher and I signed an agreement as to the lines— that they should be where Twichell set them; the only agreement I had with these men was in writing.” The whole record is cogent with the idea and dedueible direct from Twichell’s testimony that he arbitrarily disregarded the calls for the headrights, and the theory that M- — 24 should be run out so as to retain its position with the southern work. He testified explicitly “that they [meaning the appellees] agreed to abandon all calls for the headlights on the west and south” in addition to what he wrote to Cow-an. While Stevenson might not have agreed directly as- to the manner in which Twichell was to run out these lines, the record convincingly bespeaks another agreement, distinct from any written agreement, to the effect that the headrights on the southern work should be disregraded entirely. The .principal explanation we have as to what constituted the written agreement is contained in the letter from Twichell to Cowan, mentioned above, where he says: “I have surveyed practically all the land north of the Canadian and south of block T, doing the work for Mr. Munson and others, myself working as state surveyor, regularly appointed under the act providing for such work in the Acts of 1887, title 99 (89) R. S. 1895. This act is referred to in my corrected field notes. Aside from this act, the landowners in M — 24 all signed an agreement to make the general survey under the act referred to for the purpose of determining the correct line. I think your client signed this agreement, and that would probably prevent further difficulty.”

Mr. Twichell in his corrected field notes of M — 24, upon which appellees depend, does say that the survey was made by him “as state surveyor by virtue of title 79 (meaning 89) c. 1,' R. S. Civil Statutes of 1895,” which act clearly contemplates that the corrected survey shall be accepted by the land office, which was never done in this instance; and if this written agreement for Twichell “to make the general survey under the act referred to” was the only agreement Stevenson made, or the others for that matter, the acceptance by the land office of this resurvey is a precedent condition to the consummation of the agreement, unless waived by Hatcher and Crosby. If the side agree-1 ment was made to disregard the other calls in constructing the survey, and the written agreement embodies the legislative act, under which Twichell as state surveyor made the survey, and this present record forces us to 'that conclusion, the evidence must show acquiescence hy Crosby and Hatcher in the collateral agreement and a waiver by them of the other, and when Hatcher instructed Stevenson to move the fence, if he was not aware of the other agreement, and did not waive by his acts the failure of the Commissioner of the General Land Office to accept Twichell’s survey, he would not be bound — waiver imports knowledge and circumstances not in this record. This discussion is referable to the matter of agreement only. As to the matter of acquiescence after the fence was moved, the testimony shows correspondence with the Commissioner of the General Land Office in regard to his acceptance of the survey into the year 1909, and this suit was filed in September, 1911. It is not incumbent upon us to discuss acquiescence to prove agreed boundary or acquiescence distinct of itself; we hold this evidence insufficient.

We have concluded to reverse and remand this cause as a whole without intending to disturb the judgment previously rendered in the cause of Geo. B. Lucas v. Geo. G. McFarland (No. 269) 156 S. W. 1109, on the docket of this court. We disposed of that cause in accordance with the field notes and the matters there presented, and it can take care of itself, and if the evidence of agreed boundary is the same in this cause, upon another trial, as in this trial, this case is remanded with instructions to render a judgment in accordance with this opinion.

Reversed and remanded.


author: HUFF, O. J.

text:
    WESTERN UNION TELEGRAPH CO. v. GLENN.
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 8, 1913.
    Rehearing Denied May 17, 1913.)
    1. Tejdegbaphs and Telephones (§ 66) — Delay in Deliveby oe Messages — Negligence — Evidence.
    In an action for delay in the delivery of a message, evidence field to support a finding that the delay was caused by the negligence of.' the company and not by act of God.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. § 66.]
    2. Appeal and (EkRob (§ 934) — Evidence— Sufficiency — Review.
    The court on appeal from a judgment for plaintiff will view the evidence in the light most favorable to the judgment when considering the sufficiency of the evidence to support it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3781, 3782; Dec. Dig. § 934.]
    3. Telegbaphs and Telephones (§§ 50, 66) —Delay in Delivery of Messages — Negligence.
    The failure of a telegraph company to deliver a message received for transmission at Santo, Tex., at 8 p. m. January 14th to Claire-mont, Tex., until 11 a. m. January 16th, establishes a prima facie case of negligence, and the company has the burden to show some cause excusing it, and a mere claim that the delay was caused by a wire being down, with no excuse for such condition, does not excuse the delay.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ S3, 61-63; Dec. Dig. §§ 50, 66.]
    4. Telegbaphs and Telephones (§ 66) — Delay in Delivery of Messages — Liability — Evidence.
    In an action for delay in the delivery of a message announcing the death of plaintiff’s brother-in-law, thereby depriving plaintiff and his wife of the opportunity of attending the funeral, evidence held to justify a finding that if the message had been promptly delivered they would have attended the funeral, authorizing a recovery.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. § 66.]

      Appeal from District Court, Kent County; Jno. B. Thomas, Judge.
    Action by B. L. Glenn against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Ed. J. Hamner, of Sweetwater (Geo. H. Eearons, of New York City, of counsel), for appellant. Higgins, Hamilton & Taylor, of Snyder, and. W. P. Blackburn, of Clairemont, for appellee.

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

   HUFF, O. J.

B. L. Glenn, appellee, brought suit against the appellant, Western Union Telegraph Company, alleging that appellant failed to use ordinary diligence in the delivery of a message, announcing the death of the brother of appellee’s wife, in time for her to attend the funeral service and burial of her brother, which it is alleged she could and would have done. The appellant answered by general denial and, among other pleas, alleges that from and after “5 o’clock p. m., January 14, 1912, and until 10:30 o’clock a. m. January 16, 1912, by reason of a storm and high winds and atmospheric influences over which defendant had no control, the wires of this defendant, over which telegrams had to be transmitted, to Jayton, Tex., were down, and telegrams could not be dispatched over them. * * * That it used more than usual and ordinary diligence in the endeavor to deliver the telegram in question, but was prevented by the act of God, over which it had no control, and therefore relieved of liability in law.” Appellant does not plead a contract limiting its liability. R. C. Stewart died at San-to, January 14, 1912, at about 5 o’clock p. m., and T. W. Stewart sent to appellee, B. L. Glenn, the following telegram: ‘‘Santo, Texas, 1/14/1912. To B. L. Glenn, Claire-mont, Texas. Richard died five o’clock this p. m. T. W. Stewart.” Time filed 5:28 p. m. R. C. Stewart was the son of T. W. Stewart and brother of Mrs. Ora L. Glenn, the wife of appellee, and was known and called Richard. The agent of appellant at Santo knew and was well acquainted with the deceased, his father and sister, Mrs. Glenn, as well as her husband, at the time of filing the telegram in the Santo office. The appellant had a telegraph wire from Santo to Jayton in Kent county, which was about 15 miles from Clairemont in that county, at which last place appellee and his wife resided. The wife was postmistress at that place, and appellee, her husband, was county judge of the county and had a drug store in the town. There was a telephone from Jayton to Clairemont. In sending the telegram from Santo to Jayton, the testimony of the agent and others shows that appellant through its agent agreed to- have the message communicated over the telephone from Jayton to appellee at Claire-mont. There were no charges for such services, as the telephone could lje used free by those having boxes in their places of business, which appellee had at that time and which method of communication the agents of appellant had theretofore used. In sending the message it was first to send to Dallas, a relay office, and from there send to Wichita Falls and relay from there to Jayton. The ordinary or usual time for transmitting the message is shown to have been from one hour to two hours. If it had been sent in the usual time, appellee should have received the message by not later than 8 o’clock p. m. January 14, 1912. The evidence shows the message did not arrive at Jayton until after 11 o’clock a. m., January 16, 1912. The funeral of the brother was had about 4 or 5 o’clock January 15, 1912, at Santo. The evidence further shows that Mrs. Glenn, in December, 1911, was called to the bedside of her brother, where she remained for some days until she was required to return to her children and on account of her duties in the post office, but before leaving Santo she made arrangements with her father to send a telegram in ease of her brother’s death, as she desired to attend the funeral. This the father promised and sent the message in compliance with his agreement to do so, paying the charges in full as agent for appellee. In order to reach Santo from Olairemont, the usual and customary way is to go by private conveyance through the country from Clairemont to Jayton — 15 miles — and at that point take the Wichita Valley Railroad to Stamford, and there take the Texas Central to Cisco, and there take the Texas & Pacific to Santo. The Wichita Valley left Jayton going east to Stamford at 2:30 or 3 o’clock p. m. on the date of the telegram. There was only one train a day each way at that time over that road. Mrs. Glenn could not have gone by Jayton and the Wichita Valley, the usual route, had she received the message on the 14th, either at 7 or 8 o’clock p. m. of that day in time to have attended the funeral of her brother on the 15th at 4 or 5 o’clock p. m. The other route was to go to Rotan from Claire-mont, a distance of some 35 miles, and there take the Texas Central to Cisco and then via the Texas & Pacific Railway to Santo. The evidence does not show any train leaving Rotan which she could have taken and which would have connected with the Texas & Pacific in time to have reached the funeral. The next route would have been to go from Clairemont via Rotan on to Sweetwa-ter, situated on the Texas & Pacific, a distance placed with the witnesses from 70 to 77 miles. The evidence shows there were three or four trains passing through Sweet-water going east on the Texas & Pacific Railway, passing Santo; one passing Sweet-water at 9 o’clock at night, one at 11:15 at night, one at 8 o’clock in the morning, and one at 10:40 a. m. This last train the testimony shows did not stop at Santo. The testimony further shows that one train passed Santo at 4 a. m., one at 2:20 p. m., and one at 4:20 p. ro. on the 15th day of January, 1912.

The record before us shows that the only train which Mrs. Glenn could have taken to reach Santo in time for the funeral was the one passing Sweetwater January 15, 1912, at 8 o’clock a. m. Both Mrs. Glenn and her husband, B. L. Glenn, testified that she could and would have attended the funeral had the message been received on time. The testimony shows that both were expecting the message and had perfected all arrangements for Mrs. Glenn to make the trip. Mrs. Glenn had arranged to have the post office properly cared for during her absence and for a lady to care for her children during that time. Her husband had a team ready so that he could start at once upon receipt of the telegram. It further shows that they then proposed to go to Jayton if the conditions were so they could go that route; if not, then they expected to go by Rotan and take the train at that point. The attorneys contend, and in so far as the record shows in this case seem to indicate, that the train appellee was expecting to take at Rotan had ■been annulled or discontinued; but that fact was not then known to appellee. He, upon the trial, says, however, he would have gone to Sweetwater; that he would have driven to Rotan with his team and buggy and there obtained another team and proceeded to Sweetwater and could and would have arrived at Sweetwater in time to have taken the 8 o’clock train. There was a livery stable at Rotan where he could have obtained a team, and that he certainly, would have taken his wife to the train in time-for the funeral. He would have had about 12 hours in which to make the trip from Claire-mont to Sweetwater. The evidence shows there was some rough road and some sand and that it would have been a difficult - and hard trip in the night. There-is some testimony that he could have gone through in an automobile, but the evidence shows appellee did not own one, and that there was no garage at Glairemont, and that none were for hire at that place. There was telephone communication between Glairemont and Ro-tan and between Rotan and Sweetwater and Glairemont and Sweetwater. The testimony of McKnight, the agent of appellant at Jay-ton, is to the effect that after 5:30 p. m., January 14, 1912, the wires were down, somewhere east of Jayton, and that he supposed they were broken or disconnected, and another agent at Wichita Falls testified to the same effect. There is no evidence showing where the wire was broken or disconnected or how the same was so broken or disconnected. There is no evidence of any storm or high winds which caused the break or of any natural force over which appellant had no control, which caused it. The parties repairing it, if it was repaired, did not testify and there is nothing in the record showing any such break except the two agents, who testified to certain tests made by them of the wires from their respective offices and so ascertaining the break or disconnection. The message in question was received at Jayton January 16, 1912, a little after 11 o’clock a. m., and was by the agent at that point immediately phoned over to Mrs. Glenn at Clairemont. Appellee Glenn testified that on the 16th of January he went to Jayton on business and while there the agent handed him the message and upon his inquiring of the agent, McKnight, what had caused the delay, the agent replied he hardly knew why it was. He could give no definite answer why. “He made a remark about delivering the message upon receipt there, but as to-why it did not reach his office earlier he did not know positively. I asked him if he was using the wires, and he said they were. He stated at the time that the wires had been very busy in heavy use and demand from the railroad operators at Spur, through here.”

The case was tried before the judge of the court below without the intervention of a jury. Upon the above facts he rendered judgment for ,$600 for appellee, against appellant. It is insisted that the court was in error in rendering judgment against appellant for the reason that the evidence shows the wires were down at the time the message was received for transmission. It will be noted that the message was received at the Santo office at 5:28 p. m., and McKnight says he found' the wires were down at 5:30 p. m., two minutes after the reception at Santo. Appellant does not show where they were down, or the extent of the injury. This was clearly within the province and power of appellant to have shown if such was their condition. Appellee shown on the day the message was received at Jay-ton the witness did not claim the cause of the delay to have been from the fact that the wires were down, but attributed it to-the heavy use of the wires by the railroad employés, and asserted the wires were then in use. This witness does not deny that he had the conversation with appellee, but says he does not recollect just what was said. We think there was testimony from which the court could have found the delay was not caused by the wires being down and that they in fact were not down as asserted by appellant.

The evidence should be viewed in the light most favorable to the judgment, and in doing so we must conclude the appellant was negligent in the transmission of the message and that its wires were not down. If they were down, there is nothing to show they were so by the act of God or any force over which appellant had no control. If they were in fact down, there is nothing showing that they were not so from the negligence of appellant.

The failure to deliver the message as set out in this case made a prima facie case of negligence, and the burden rested on appellant to show some cause excusing it. The mere claim that the delay was caused by the wire being down, with no excuse offered for this condition, we think will not excuse the delay from 8 o’clock p. m. January 14th to 11 o’clock a. m. January 16th. W. U. Tel. Co. v. Bouchell, 28 Tex. Civ. App. 23, 67 S. W. 159; W. U. Tel. Co. v. Sheffield, 71 Tex. 570, 10 S. W. 752, 10 Am. St. Rep. 790; W. U. Tel. Co. v. Shaw, 33 Tex. Civ. App. 395, 77 S. W. 433. It should be stated that appellee’s initials are B. L.; that the message filed with the agent at Santo was addressed to B. L. Glenn. When received at Jayton the address was changed from B. L. to R. B. The facts show that appellee was known at Jayton by the agent at that point, and that appellee received freight from the railroad office where the agent was at work, and that he transacted business with the agent. The facts further show that the message was phoned over to Clairemont to Mrs. R. B. Glenn. The change in the address may have contributed to the delay. It was at least calculated to do so. While the agent testifies that he did not receive it at Jayton until the 16th and that he phoned it to Mrs. Glenn at once, the trial court does not appear to have placed much faith in his testimony, and we might conclude that this change in the initials was found by the trial court to have occasioned the delay and that appellant was negligent in so transmitting the message. W. U. Tel. Co. v. Hines, 22 Tex. Civ. App. 315, 54 S. W. 627; W. U. Tel. Co. v. Tobin, 56 S. W. 540.

It is strenuously urged that there was no evidence in the case from which the trial court could have found that appellees could and would have arrived in time for the funeral of her brother had the message been delivered to appellee at the time it should have been by the exercise of ordinary diligence. This question we must confess has-given us considerable trouble to resolve in favor of the court’s judgment. However, taking into consideration the anxiety of the sister to be at the funeral of her brother, the fact that she had been with him for several days during his last illness and only left him to return to her children, and the care she had taken to have an immediate message sent to her" in case of his death, and the promise which she exacted to do so, together with the fact that she and her husband were expecting a message and made every preparation for her to make the trip, we think must have had great weight, and properly so, with the trial judge in concluding that the appellee not only would but could have made the trip in time. The journey across from Clairemont to Sweetwater is shown to have been a difficult and hard one and that perhaps at the time that particular trip was not in contemplation of the appellep. However, we are not prepared to say as a matter of.law that there was no testimony authorizing the trial judge to find that appellee and wife would and could have made the trip. We think there are facts and evidence which support the judgment. From reading the record, we might be impressed at this distance that such a trip was improbable. We do not think, however, we ought to say as a matter of law the court had no fact upon which his judgment could be rendered. He saw and heard the witnesses and could better than we form a correct conclusion as to the conditions, probabilities, and improbabilities.

We find no such error in the case as will wa'rrant us in reversing the judgment of the trial court, and it is therefore affirmed.