author: HODGES, J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. WATTS et al.
    (No. 1377.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 28, 1915.
    Rehearing Denied Feb. 25, 1915.)
    1. Baileoaus <@=^367— Operation of Trains —Care Bequired — Lookout.
    Trainmen must at all times exercise a proper degree of care in keeping a lookout to discover -persons and objects in any situation on the track, and a failure so to do makes the railroad company liable for injury to a person on the track unless he was guilty of contributory negligence.
    [Ed. Note. — For other cases, see Bailroads, Cent. Dig. §§ 1257, 1258; Dec. Dig. <@=>367.]

      2. Railroads @==>39S — Operation—Lookout —Negligence—Evidence.
    In an action for the death of a person run over by an engine, evidence held to support a finding of negligent failure to keep a proper lookout.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1356, 1358-1363; Dec. Dig. <©=> 398.]
    ,3. Railroads <£5=^396 — Operation—Lookout —Negligence—Evidence.
    Where a person on a track was run over because of the failure of trainmen to keep a proper lookout, the company, to escape liability, must show that the person was guilty of negligence proximately causing the accident.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1341-1343, 1357; Dec. Dig. 396.]
    4. Negligence <®=»58 — “Proximate Cause” —Wiiat Is.
    Before an act or omission is the “proximate cause” of an injury, the injury must be the natural and probable result of the act or omission; for one is not responsible for the consequences of an act not reasonably foreseen.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. § 71; Dec. Dig. <§¿^58.
    For other definitions, see Words and Phrases, First and Second Series, Proximate Cause.]
    5. Railroads @=o380— Injuries to Person on Track — Contributory Negligence — Proximate Cause.
    The negligence of one in jumping from a moving train and falling injured on a track is not the proximate cause of his death by being run over by an engine while remaining on the track, unable to leave it because of his injuries, but his falling on the track was the result of accident, and the railroad company, guilty of negligent failure to properly keep a lookout while operating the engine, was liable for his death.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1319-1323; Dec. Dig. <S=»389.J
    6. Railroads <S=>369 — Injuries to Person on Track — Trespasser.
    One negligently jumping from a moving train and falling on a track, so injured as to be unable to leave the track, is not a willful trespasser, and the company owes to him the duty of a proper lookout.
    [Ed. Note — For other cases, see Railroads, Cent. Dig. §§ 1259-1262; Dec. Diig. <§=^369.J
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    Action by Mrs. Nannie Watts and others against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Glass, Estes, King & Burford, of Texar-kana, for appellant. Smelser & Vaughan and Mahaffey, Thomas & Hughes, all of Texar-kana, and R. M. Hubbard, of New Boston, for appellees.
   HODGES, J.

On the night of July 7, 1912, John C. Watts, the husband of the appellee Mrs. Nannie Watts, and the father of the other appellees; was killed in the yards of the appellant at Texarkana, Tex., under the following circumstances: His daughter desired to go to Palestine, Tex., and he accompanied her to the Union Station at Tex-arkana to assist her in taking passage on the south-bound Texas .& Pacific train due to leave some time after 1 o’clock in the early morning. He boarded this train with his daughter for the purpose of securing for her a berth in a sleeping car, but before he had concluded his arrangements with the Pullman conductor the train began to leave the station. The Pullman conductor testified:

“When I first learned what Mr. Watts intended to do the train was then moving. I immediately started to the vestibule at the front end of the car. Mr. Watts followed me on the platform. The porter had closed the vestibule door. * * * 1 told Mr. Watts to wait and I would go and get the train conductor and stop the train for him. I last saw Mr. Watts standing on the platform of the second car, where I told him to wait until I could get the train conductor. * * * I went for the train conductor as hurriedly as I could, * * * and after returning with the conductor where I had left Mr. Watts he was gone, and I did not see him any more. The conductor and I looked through the cars for him, and could not find him. On returning with the conductor, I found the vestibule door open where Mr. Watts had been standing.”

The Texas & Pacific train, in passing out from the Union Depot, moved in a southwesterly direction, and gradually turned still farther toward the south, crossing the main line and one or more switch tracks of the appellant before leaving the railway yards. Shortly after this train had left, a switch engine belonging to the appellant, which had been standing east of this crossing of the railroads, moved west some distance, passing over the Texas & Pacific track. It was then switched onto another one of the appellant’s tracks a few feet further south, and started toward the east again. When within a few feet of the Texas & Pacific track the body of a man, afterwards identified as that of John O. Watts, was discovered on the appellant’s track about six feet in front of the end of the tender of this switch engine. This switch engine was backing, and across the rear end of the tender was a running board, on which several of the appellant’s employes were standing at the time, but it seems that none of them discovered Watts in time to avoid a collision. The engine passed over his body, and he expired a few seconds later. E. M. Holliday, one of those employes, thus describes what occurred:

“I was standing on the footboard of engine No. 90 at the time it was approaching the place or the track where John G. Watts was lying just before he was struck by said engine No. 90. When I first saw him he was lying on the track, apparently raised up on his elbows. I cannot say whether his face was up or down. * * * He was between the rails when I first saw him. * * * When I first saw the deceased I was about six feet from him. I called to him when I first saw him, and said, ‘Get out of the way!’ He didn’t say anything, but turned and looked at me. He was lyinig in between the rails, propped up on his elbows. The engine was backing up at the time. There were no headlights there except the headlight. The place where deceased was killed was very dark, except the light from the lanterns of the crew. Just a short distance — something like 20 feet from the place where the accident occurred — we had stopped the engine and picked up J. A. Wood, switchman, and Bert Heddon, switchman. There was no alarm. The yard was quiet, and no one was making any alarm or noise.”

' Another switchman testified that about the time the collision occurred he heard some one in that direction cry out as if in pain. A. L. Scott, a witness for the defendant, testified that at the time this injury occurred it was his business to let trains in and out of the yard at Texarkana to place engines on and take them off, and arrange switches for trains to leave town and come into town on. He thus testified as to what he observed that night:

“I gave the high-ball signal that night, and the train passed me. As the train passed me I saw an elderly gentlemen standing on the bottom steps of the International & Great Northern coach, sometimes termed a ‘chair car’ by the employés, but I rather think it was an International & Great Northern coach. It was the third car from the rear end of the train. This gentleman was standing with his left hand on the grabiron, facing towards the engine. He had on glasses. * * * He was wearing a white hat. The two cars behind the car that he was on were International & Great Northern Pullman cars — sleepers, I term them — Pullman sleepers. He was on the lower steps of the car, with his left hand on the grabiron, facing- the front of the engine, the way the train was going. I judge that the train was moving between 8 and 10 miles an hour. I saw him again on the train as the train was passing me. After the train passed me he made an effort to turn, as though a man in the act of getting off of the train. He turned his back toward me that way, as though making an effort to get off the train, in the act of swinging, like an ordinary man would get off of a train. * * * I then walked toward the Cotton Belt tracks, over the track that comes from the Union Station, to see further around the curve, and the last I could see of him was his hatbrim as he rounded the curve. He was then still on the train. * * * By that time their speed would have increased, I believe, to about 12 or 14 miles an hour in that distance. I did not have occasion to see him any more after he rounded the curve.”

Dr. E. M. Watts, a son of the deceased, testified as follows:

“When I first saw the body it was at the East Undertaking Company. I did not make an examination of the body. I examined the skull and his hands. When I got to the undertaking establishment he was there covered up all except his hands and the upper part of his body. I did not examine the lower extremeties, but did examine his head and his hands, and his hands showed that he had been pushed around in the cinders. The skin was slightly torn. It was just an abrasion, you understand. The skin was torn, but there was not any cut or anything like that, and his hands were dirty. He had a gash across his forehead, probably six or seven inches long. It seemed to be a cut when I first examined it. I did not find any fracture, and am sure there was none. I looked for that particularly. The wound on the head was what would be called a scalp wound. It was not such a wound as, in my opinion as a physician, would ordinarily cause death. It would have a tendency to daze a man temporarily ; it would stun him.”

This suit is by the surviving wife and children of John C. Watts to recover damages occasioned by his death, and this appeal is from a judgment in their favor for the jam of $10,000. The petition charged negligence on the part of the appellant’s employés in failing to keep a proper lookout to discover the presence of John C. Watts upon the track, and in failing to exercise proper care to stop the engine after they discovered his presence upon the track and in a place of danger. The latter ground, however, was abandoned, and the issue of negligence based upon the failure to keep a proper lookout to discover the presence of the deceased upon the track was the only one submitted as a basis of recovery.

There was testimony sufficient to justify a finding by the jury that the appellant’s roadbed and track at the place where the accident occurred had been commonly used as a footpath, both in the daytime and at night, for a number of years, under circumstances which were reasonably calculated to charge the employés with a knowledge of such use. The court gave to the jury the following as a portion of his main charge:

(1) “The court instructs you that the first question in this case for you to determine is: Was the death of the said John C. Watts caused by his being struck and run over by a switch engine of the defendant’s? Now, if you believe from the evidence that at the time John O. Watts was struck and run over by a switch engine of the defendant he was already dead, or that he had previously received injuries in getting off a Texas & Pacific train which would have caused his death, then, if you so find, you will return a verdict for the defendant, without considering any other issues in this case.”

The main issue was thus submitted:

(6) “Now, if you find from a preponderance of the evidence that on or about the 7th day of July, 1912, the deceased, John O. Watts, was struck and run over by a switch engine of the defendant, in the city of Texarkana, Tex., and that his death was thereby caused, and you further find that at the time he was thus struck and run over the said John O. Watts was on a part of one of the defendant’s tracks in said city, which was then, and for a long time theretofore had been, with the knowledge and consent or acquiescence of the defendant, commonly and customarily used by persons at all times of the night as a footpath; and that the servants of the defendant operating and riding on said switch engine knew, or, by the use of ordinary diligence, could have known, of such use, and you further find from a preponderance of the evidence that the said John C. Watts, on account of injuries previously received, did not realize or know the danger incident to being or remaining on such track, or that, on account of such injuries, he was unable to remove himself therefrom, and you further find from the preponderance of the evidence that the servants of the defendant riding upon and operating such switch engine could, by the exercise of ordinary care, have discovered the presence of said John O. Watts on said track, and could, by the exercise of such care, have avoided striking him with such switch engine, and that such servants of the defendant failed to use such care, and that such failure, if they so failed, was negligence, as that term has been defined herein, and that the death of said John G. Watts was caused by such negligence, if any, and if you further find from the evidence that the plaintiffs or any of them suffered pecuniary loss on account of the death of said John O. Watts, then, and if you so find, you will return a verdict in favor of such of the plaintiffs as you may find, under other parts of this charge, suffered pecuniary loss on account of the said John G. Watts’ death.”

The substance of the appellant’s contention on this appeal is: First, that even if its track at the place where the accident occurred was used as a highway by pedestrians, the undisputed evidence shows that the deceased was not making that use of the premises, and for that reason its employes did not owe him the duty of exercising ordinary care to discover his presence upon the track; second, that the evidence raised the issue of contributory negligence on the part of the deceased in alighting from the Texas & Pacific train while it was still in motion, and that this issue should have been submitted to the jury. The proposition is announced that the employés in charge of railway locomotives were under no duty to discover persons who were making an unlawful use of its track, or a use which they were not notified would probably be made. It may now be considered as definitely settled in this state that those in charge of railway locomotives do rest under the duty at all times to exercise a proper degree of care in keeping a lookout for the purpose of discovering persons and objects in any situation on the track, and that, when a failure to exercise this-watchfulness results in an injury to a person on the track, a recovery can be defeated only by showing that the injured party was himself guilty of negligence which was the sole or a concurring cause of the injury. Railway Co. v. Sympkins, 54 Tex. 615, 38 Am. Rep. 632; Texas & Pacific Ry. Co. v. Watkins et al., 88 Tex. 23, 29 S. W. 232; M., K. & T. Ry. Co. v. Hammer, 34 Tex. Civ. App. 354, 78 S. W. 708; St. L. & S. W. Ry. Co. v. Bolton, 36 Tex. Civ. App. 87, 81 S. W. 123; T. & P. R. R. Co. v. Roberts, 2 Tex. Civ. App. 111, 20 S. W. 960; T. & P. Ry. Co. v. Staggs, 90 Tex. 461, 39 S. W. 295.

In the Sympkins Case, referred to above, the injured party had gone on the track of the railway company, and while there had fallen in a fit, and was thereafter run over and killed. In disposing of the question of liability, the court said:

•‘We do not assent to the proposition that a railroad company may not become liable to one who is run over and injured by reason of the want of watchfulness of its servants, although such person may have been originally a trespasser on the track. If a party be wrongfully on the track under such circumstances, or, being there, acts in such a way as to be himself a proximate cause of Ms injury, he will be precluded from recovery on grounds of public policy, as being himself guilty of contributory negligence. Although the company’s agents may have failed in proper watchfulness, the injured person is regarded as being himself too directly a cause of the injury to be allowed to complain. * * * We prefer that line of decisions holding railroads bound to exercise their dangerous business with due care to avoid injury to others, as correct in principle and sound in policy, and as protecting even a trespasser who is not guilty of contributory negligence.”

Associate Justice Denman, in rendering the opinion in the Watkins Case, said:

“The true rule is that it is the duty of the servants of the railroad company operating its trains to use reasonable care and caution to discover persons on its track; and a failure to use such care and caution is negligence on the part of such company, for which it is liable in damages for an injury resulting from such negligence, unless such liability is defeated by the contributory negligence of the person injured or of the person seeking to recover for such injury, and the circumstances under which the party injured went upon the track are merely evidence upon the issue of contributory negligence.”

The evidence in this case justifies a finding by the jury that a proper lookout to discover the presence of persons and objects on the track was not kept by the appellant’s employes in charge of the switch engine that caused the death of John C. Watts; and it also justifies the further conclusion that, had ordinary care been exercised in that respect, the accident could, by the exercise of proper care, have been averted.

It follows from the rule announced in the cases cited that, if the death of John O. Watts was brought about under those conditions, the appellant, in order to escape liability, must show that Watts was himself guilty of negligence which may be considered the’ proximate cause of that result. The trial court held that the evidence was not such as to raise the issue of contributory negligence, and formulated his charges accordingly; and, in addition to this, he refused a special charge presented by the appellant requesting that this issue be submitted. The different assignments assailing these rulings of the court present the principal questions involved in this appeal.

The only conduct attributed to the deceased which is relied on as constituting negligence is his alighting from the Texas & Pacific train while it was in motion. It is contended that, had he not done this, the injuries here complained of would never have been inflicted. That this conduct was a link in the chain of casual events which culminated in the unfortunate tragedy cannot be denied. But the same may be said of his going upon the train to assist his daughter in securing a berth in the sleeper and remaining there till after the train started. And we might push the analysis still further backward, and say that the accident would not have occurred had deceased not gone to the depot on that night. Hence the mere fact of conduct being a link in the causal chain is not sufficient; it must be the proximate cause. In T. & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162, our Supreme Court discusses the subject of proximate cause, and lays down this rule:

“It is usually laid down in cases of negligence that, in order to constitute the proximate cause of an injury, the injury must be the natural and probable result of the negligent act or omission. Since every event is the result of a natural law, we apprehend the meaning is that the injury should be such as may probably happen as a consequence of the negligence, under the ordinary operation of natural laws.”

After quoting Bacon’s definition of proximate cause, the court continues:

“But it seems to us, * * * as applied to the law of negligence at least, a better ground for the rule is, that a party should not he held responsible 'for the consequences of an act which ought not reasonably to have been foreseen.”

Keeping that definition in mind, can it be said that, under the evidence adduced, John C. Watts, in alighting from the moving train, should have anticipated that he might be injured in a collision with one of the appellant’s locomotives or cars? The question is not answered by saying that he should have anticipated being injured or killed by the fall. This suit is not founded upon those injuries, but upon injuries resulting from an entirely different cause and occurring under different conditions. In order to fix negligence upon the deceased, we must find, not only that he should have anticipated being injured in alighting from the train as a result of its rapid motion, but that he also should have anticipated that he would alight upon the appellant’s track, and that his injuries would be of such a character as to render him unable to move away from that situation, or to make his presence known, and that he would finally be run over by a passing locomotive or car. We can no more presume negligence on the part of an injured party in such instances than we can presume negligence in the party inflicting the injury. In each ease the negligence relied on must be proved, whether it be the ground of an action or the basis of a defense. In determining what a reasonable person should expect or anticipate as a natural and probable result of a course of conduct, we must view that conduct in the light of the circumstances surrounding such person at the time he acts. This occurrence took place in the night. Appellant’s employés say it was very dark at the time the engine ran over the deceased, and this must have been only a few minutes after he alighted from the train. The only evidence which tended to contradict this statement was the testimony of Miss Lizzie Watts, the daughter whom the deceased accompanied on the train that night. She says that when they left home near 12 o’clock a half moon was shining; that previous to that time it had been raining some. There is no evidence that the deceased knew anything about the location and arrangement of the railroad tracks at that point, further than what he might have observed in the darkness as he was getting off. Evidently his purpose was to alight from the train before it got too far away from the station, and not to alight at any particular spot, or among railroad tracks. His falling at that point may be regarded as the result of accident, rather than of design. Doubtless the momentum communicated by the motion of the train carried him some distance beyond where he first struck the ground. Such would be the natural and probable consequences of alighting under those conditions.

He was not, therefore, in the attitude of a willful trespasser upon the appellant’s track, even if the track were not used under conditions which implied permission on the part of the railway company. When deceased fell upon the track he was not then in a place of danger. Had he not been rendered unable to move, he might, and doubtless would, have extricated himself from that situation before any collision could occur. I-Iis remaining upon the track until run over by the engine was the real cause of the injuries for which this suit is brought. Certainly remaining upon the track under those circumstances could not be treated as negligence. His helpless condition, produced by what may be termed accidental injuries, was the intervening and immediate cause which broke the responsible connection in the chain of events. In T. &. P. Ry. Co. v. Staggs, supra, Justice Brown used this language:

“If the deceased was not guilty of negligence in being or remaining [italics ours] upon the track of the defendant’s railroad, and if the em-ployés of the railroad company failed to use such care as a person of ordinary prudence would have exercised under that condition, to discover his presence upon the track, the widow and children of deceased would be entitled to recover for his death, if caused by such negligence of the railroad company.”

That language is applicable here, and should determine the disposition of this appeal.

Counsel for appellant seeks to apply the rule laid down in cases where the injured party had gone to sleep on tile tracks, either voluntarily or under the effects of intoxicants. The dissimilarity between those conditions and the circumstances of this case is too manifest to be overlooked. In each of those conditions the injured party is presumed in law to have voluntarily remained on the track till injured. A person who becomes insensible as the result of intoxication is in law regarded in the same light as one having the possession of his faculties in determining the degree of care he' should exercise for his own safety. He will not be permitted to urge as a defense a condition superinduced by conduct upon which society looks with so much disfavor as the excessive use of intoxicants. See notes to Little Rock Ry. & Elec. Co. v. Billings, 19 Ann. Cas. 1173.

Our conclusion is that the evidence did not in this case raise the issue of contributory negligence, and the court did not err in refusing the special charge requested, or in failing to make the qualifications of his main charge referred to in the appellant’s assignment of error.

The judgment of the district court will therefore be affirmed.
      <©55>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


source: Caselaw Access Project

author: CONNER, C. J. DUNKLIN, J.

license: Public Domain

text:
    KENDRICK v. JOHNSON et al.
    (No. 7983.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 14, 1914.
    On Motion for Rehearing, Feb. 13, 1915.)
    1. Boundaries <@=337 — Evidence — Sufficiency-Location of Corner.
    In a suit to determine the boundary line between two surveyed blocks, evidence held sufficient to sustain the finding of the court that the southeast corner of one block was located at a point 317 varas north of where it should be according to the call for course and distance.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184-194; Dee. Dig. <@=>37.]
    On Motion for Rehearing.
    2. Boundaries <@=>37 — Evidence — Sufficiency — Location of Corner.
    In a boundary suit, evidence held to show, contrary to the finding of the court, that the south line of a certain block ran southwesterly from the southeast corner to the corner of blocks in another survey, rather due west, according to the course called for.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184^-194; Dec. Dig. <@=>37.]
    3. Boundaries <@=>1 — Determination — Rules'.
    The object of the rules for the ascertainment of boundary lines is to determine where the line was originally in fact located by the surveyor, not where it should have been located.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. § 1; Dec. Dig. <@=ol. ]
    4. Boundaries <@=>3 — Determination—Relative Importance — Course and Distance.
    The call for course and distance is a lower grade of evidence, and must yield to a call for a natural object, marked tree, or a fixed determinable corner.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec. Dig. <@=>3.]
    Dunklin, J., dissenting in part on motion for rehearing.
    Appeal from District Court, Young County; P. A. Martin, Judge.
    Boundary suit between P. S. Kendrick and R. J. Johnson and others. From a decree determining the boundaries, Kendrick appeals.
    Affirmed, and motion for rehearing granted in part, and judgment of court below modified.
    J. A. King, of Albany, Arnold & Arnold, of Graham, and Theodore Mack, of Ft. Worth, for appellant. Kay & Akin, of Graham, for appellees.
   CONNER, C. J.

This is a boundary suit in which the principal controversy is over the dividing line between section 2914, owned by appellant, Kendrick, and section 2915, immediately south, owned by one of the ap-pellees. The evidence shows that in August, 1853, a block of surveys, rectangular in form, which is designated in the evidence as the 700 block, was located and surveyed by one Joseph Bledsoe. The eastern line of the block is irregular, but in a general way extends from the southwest to the northeast. Thus survey 733 lies immediately east of survey 732. The southwest corner of 732 is made the northeast corner of 734; the southwest corner of 734 is made the northeast corner of 736, and so on. In October of the same year one Baker located and surveyed the unappropriated land lying to the south and east of the 700 block, being the block to the older surveys. The latter surveys were designated in the evidence as the 2900 block. Survey 2914 lies immediately south of survey 734 and east of 736. The field notes of 2914 call to begin at the southeast corner of survey 734; thence south 1,344 varas to a stake, calling for live oak bearing trees; thence west 1,344 varas, calling for haekberry bearing trees, which are also called for in the field notes of survey 736 at its southeast comer; thence north 1,344 varas to the southwest corner of 734; thence east 1,344 varas to the place of beginning. No corner identified as made by the original surveyor was found either at the southeast or southwest corners of 734, or at the southeast corner of 736; nor does it appear that either the east, south, west, or north lines of survey 2914 was marked. The southeast corner of 734 was clearly fixed, however, by course and distance from original corners identified in the 700 block to the north and west. So fixing the southeast corner of 734, the court in its decree fixed the south boundary line of 2914 at a point 317 varas north of where course and distance as called for in survey 2914 would have placed it, and the principal contention on this appeal is that the evidence does not support such a finding.

The evidence has been carefully considered, and we feel unable to disturb the decree below. The evidence suggests that the surveyor of block 2900 put in his surveys from base lines running north and south, occasionally fixing corners which were identified in the evidence, and that from these base lines the surveys were platted in with the evident purpose of connecting on to the 700 block, and of making the lines running east and west as extensions of the like lines on block 700. From the well-identified corners found in the 2900 block and in the 700 block it is quite evident, however, that Baker, in surveying the 2900 block, supposed the 700 block of surveys to be 317 varas farther north than they are actually found to be on the ground, thus causing a conflict. The southeast corner of 2914, however, as fixed in the court’s decree, is in harmony with other identified corners in block 2900, and one witness testified to the effect that at the southeast corner of 2914, as so fixed, he once found a live oak tree that had been recently partly burned, and which the surveyor of the county, one Hollingsworth, declared to have been a bearing tree for that corner. He further testified that the live oak roots could yet be found by digging, and that there was no other live oak in the vicinity. So that we do not feel that we could disturb the finding for the southeast corner of 2914. The extension of the south line west by course and distance as called for in the field notes of the survey cannot, we think, be disturbed, inasmuch as the line so fixed is in harmony with the calls and with all other lines of the 2900 block, and also in harmony with the evident purpose of the original surveyor to make the surveys rectangular in form, and inasmuch as the field notes of 2914 do not distinctly call for the southeast corner of 736, nor is there an identified corner at the southeast corner of 736, nor does the evidence show that there was found the original bearing trees called for in the field notes of 2914 for its southwest corner so as to require an extension of the south line of 2914 in a southwesterly direction from the southeast corner of 2914, as fixed by the court, to the southeast corner of survey 736, as ascertained by course and distance from identified comers in the 700 block to the north. In brief, the question is not where we would have fixed the south line of 2914, but the question is: Does the evidence support the findings of the trial court? And we think it does.

The judgment is accordingly affirmed.

On Motion for Rehearing.

In the consideration of appellant’s motion for rehearing, we have carefully re-read the evidence given by the surveyors and other witnesses with reference to the location of the established corners in the 700 block, and also in the 2900 block, and have become convinced that, in the light of such testimony, we cannot disturb the finding of the trial court as shown by its judgment as to the location of the southeast eorner of survey 2914.

But then the question presents itself whether the southwest corner of said survey is to be controlled by the call for course and distance from the determined southeast corner, or by the call for the said southwest corner, fixed by bearing trees on the ground at the time of the original field notes, but not now in existence. "We believe that the location of the northeast corner of survey 737, which calls for the same bearing trees, is easily determined from the uncontroverted evidence. The southeast corner of the latter survey is fixed and recognized, and the location of the same is not controverted. Surveyor O. W. Henson testified that running from the southeast corner of 737 north to the northeast corner of 730, which last-named eorner is recognized as a good corner with bearing trees, he found the requisite complement of varas—to wit, four surveys. In other words, by beginning at the southeast corner of 737, and running north 1,344 varas, he fixes the northeast eorner of said survey; and by starting at the northeast corner of 730, and running south three surveys, he again fixes the said northeast corner of 737 at the same place. In the original field notes of the four surveys hereinafter mentioned the southeast corner of 736, the northeast corner of 737, the southwest corner of 2914, and the northwest corner of 2915 all call for the same bearing trees, to wit, two hackber-ries, one 4 inches in diameter, bearing-45 degrees east 10.7 varas, another 8 inches in diameter bearing north 38% degrees east 17 varas. Therefore we find that said corner is fixed as certainly as if there were now on the land the bearing trees described as the southwest corner of 2914 and the northwest eorner of 2915. Hence, since the call in the field notes of 2914 from the southeast corner thereof west is 1,344 varas west to this corner thus established, it follows that the call for the corner will control, rather than the course and distance.

As a general rule, boundaries are ascertained: (1) by natural objects, such as rivers, lakes, creeks, etc.; (2) by artificial marks, such as marked trees, lines, stakes, etc.; and (3) by course and distance. When the application of these rules in a particular case leads to contrary results or confusion, that rule must be adopted which is most consistent with the intention apparent upon the face of the grant, read in the light of surrounding circumstances. The object of these rules, to ascertain the locality of a boundary line, is to determine where it was, in fact, located, and not where it ought to have been located; in other words, to follow the footsteps of the surveyor when the survey was actually made on the ground. Sayles’ Real Estate Laws of Texas, vol. 2, art. 871 (1892 Ed.), and cases there cited.

It is a well-recognized rule that the call for course and distance must ordinarily give way to a call for a corner which is fixed or determinable. Course and distance are of the lower grade of evidence, and will yield to a call in the grant or deed to a natural object, as a river, a known stream, spring, or a marked tree. Id. p. 528, and cases there cited. Of course, the original surveyor did not intend the south line of 2914 to run in a southwest direction to reach the bearing trees called for at its southwest corner. But it is equally as plain that he did not intend to fix the southwest corner where course and distance puts it. By adopting the ascertained northeast corner of 737 for the southwest corner of 2914, we divide the large excess that would otherwise be in survey 2915, and lessen by half the deficiency in 2914, which is equitable at least, and which more nearly accords with the manifest intent of the surveyor to make the surveys equal in area. One or more of the other surveys in the 2900 block must of necessity be adjusted to the 700 block in like manner. For instance, the southeast and the northeast corners of survey 2946 are identified and fixed on the ground. The calls from these corners are west to the northeast and the southeast corners, respectively, of survey 733, also identified on the ground. But to reach these corners of 733, which are 317 varas farther south than the same corners of 2946, the north and south lines of survey 2946 must run in a southwesterly direction.

Therefore we conclude that the court below was in error in locating the southwest corner of 2914 by course and distance from the southeast corner thereof, rather than by the northeast corner of 737, and that in this respect this court was in error in its original opinion in affirming the judgment of the trial court.

We therefore hereby grant the motion of appellant for rehearing, and it is the order and judgment of this court that the judgment of this court, as expressed in its original opinion, be reformed, and also the judgment of the trial court, by fixing the southwest corner of survey 2914 and the northwest corner of survey 2915 at a point 1,344 varas north of the southeast corner of survey 373, thereby awarding to survey 2914 .and survey 2915 each one-half of the parallelogram 317 varas north and south and 1,344 varas east and west, and that, with this correction in the judgment, the judgment of the trial court will be affirmed.

DUNKLIN, J.

(dissenting). I am unable to agree with the majority in granting the motion for rehearing and reversing and rendering judgment in favor of appellant for the part of the land in controversy shown in the opinion of the majority on the motion for rehearing. I adhere to the conclusion reached by this court upon the original hearing that the judgment of the trial court should be affirmed for the reasons stated in the original opinion. The evidence shows without controversy that all the surveys in the 2900 block, consisting of about. 40 sections, were located by the same surveyor, Baker, at the same time, all of which surveys were made subsequent to the surveys in the 700 block, and, were intended to be tied to said older surveys. The evidence further shows that some nine of the corners fixed by Baker of the sections in the 2900 block are now found upon the ground as indicated by natural and artificial objects, and there is no controversy as to the true location of these corners. These corners aré the northwest corner of 2912, the southeast comer of 2917, the northeast corner of 2944, the northwest corner of 2936, the northwest corner of 2941, the northwest corner of 2938, the northwest corner of 2940, the northeast corner of 2950, and to the number so given may be added the southeast corner of 2914, which the majority agree is the original corner fixed by the surveyor who located that survey. All the calls for course and distance contained in the field notes of all the surveys in the 2900 block harmonize with those fixed and certain corners. As stated in the original opinion in this case:

“It is quite evident that Baker, in surveying the 2900 block, supposed the 700 block of surveys to be 317 varas farther north than they are actually found to be on the ground, thus causing a conflict.”

From that conclusion it follows irresistibly that Baker, in surveying the 2900 block, did not find any corners of any surveys in the 700 block as located on the ground-, and that in calling for the northeast corner of survey 737, which is also the southeast corner of 736, he did not go to such corner as fixed upon the ground, if it was then fixed upon the ground, by witness trees in the field notes of those surveys, but that he supposed it to be due west of the southeast corner of 2914, and called for the south boundary line of 2914 to run due west of its southeast corner without actually running it upon the ground, but intending that it should ran due west for the distance given. Thus it clearly appears to the writer that Baker intended that the south boundary line of 2914 should run due west from its southeast corner to the point where he supposed the corner of 737 was located, which he never, in fact, found, and never tried to find, but which he supposed was located due west of where he located the southeast corner of 2914.

It is well settled that the rule which makes a call for course and distance inferior to those for natural and artificial objects is not an inflexible rule, but that the primary and controlling rule is that which will best enable the courts to ascertain the intention of the parties. To hold otherwise would be to give greater importance to the rule itself than to the reason of the rule, as was held in Robinson v. Doss, 53 Tex. 496, and other authorities. In Baker v. Light, 80 Tex. 627, 16 S. W. 330, it is said:

“When it can be ascertained which is the mistaken call, it will be rejected, and the other adopted as that expressive of the true intention of the parties.”

This controlling rule applies with special force when it appears that no actual survey upon the ground was made. Numerous authorities might be cited in" support of the propositions announced above, such as Luckett v. Scruggs, 73 Tex. 519, 11 S. W. 529; Sellman v. Sellman, 73 S. W. 48; Boon v. Hunter, 62 Tex. 582; Goodson v. Fitzgerald, 40 Tex. Civ. App. 619, 90 S. W. 808; Jones v. Andrews, 62 Tex. 652; Jones v. Burgett, 46 Tex. 284; Linney v. Wood, 66 Tex. 22, 17 S. W. 244.

For the reasons indicated, the writer is of the opinion that the motion for rehearing should be overruled.
      @=5For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    MOODY et al. v. CHESSER et al.
    (No. 8037.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 14, 1914.
    Rehearing Denied Dec. 19, 1914.)
    1. Schools and School Districts <§=>55 — Suit bt Trustees oe School Distbict eob Money Misdeposited by Fobmeb Trustees.
    .Where the legal depositary of county funds had refused to bring suit against former trustees of a school district who had deposited money of the district elsewhere than with the depositary, the existing trustees of the district, as beneficiaries of the fund, might maintain such a suit.
    [Ed. Note. — Eor other cases, see Schools and School Districts, Cent. Dig. §§ 137, 138; Dee. Dig. '<§=>55.]
    2. Appeal and Error <§=>843 — Questions Unnecessary to Decision.
    Where the trial court sustained a general demurrer and also special exceptions to the petition, and the appellate court reverses the ruling on the demurrer, it need not consider the rulings on the exceptions, as to which plaintiff, because of the sustaining of the demurrer, has had no chance to amend.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3331-3341; Dec. Dig. <§=> 843.T
    Appeal from District Court, Knox County; Jo. A. P. Dickson, Judge.
    Action by J. A. Moody and another against Louis Chesser and others. Judgment for defendants on demurrer, and plaintiffs appeal.
    Reversed and remanded.
    Jas. A. Stephens, of Benjamin, for appellants. D. J. Brookreson, of Benjamin, for appellees.
   BUCK, J.

This suit .was instituted by appellants in the district court of Knox county, Tex., and trial was had on plaintiffs’ second amended original petition, which reads as follows:

“Now comes the plaintiffs in the above entitled and numbered cause, and files this their second amended original petition, in lieu of their first amended original petition- filed herein, on the 2d day of September, A. D. 1913, leave of the court first having been obtained for said purposes, and for cause of action pleads as follows:
“First. Now comes J. A. Moody and W. A. Brown, resident citizens and taxpayers of common school district No. 3, Knox county, Tex., and represents that they are the duly elected, qualified, and acting school trustees for said school district No. 3, hereinafter styled plaintiffs complaining of N. J. Allen, who resides in Donley eountv. Tex., S. B. Maddox, Louis Ches-ser, C. A. Cantrell, W. F. Hickman, W. M. Sagger, and J. J. Perry each who resides in Knox county, Tex., and the First Bank of Trus-cott,, a partnership engaged in the banking business at Truseott, Tex., and doing business under the firm name of the First Bank of Trus-cott, which is a partnership composed of Louis Chesser, and the other members of said partnership is unknown to plaintiff, and the First National Bank of Benjamin, Tex., a corporation organized and existing under and by virtue of the laws of the United States of America, and engaged in the banking business at Benjamin, Tex., -of which A. H. Sams is president.
“Second. That the plaintiffs are not only the duly elected and qualified and acting school trustees for said common school district No. 3, but that said plaintiffs and each of them own property situated within said school district, both real and personal, of the value of more than $2,000 each.
“Third. That said school district owes an indebtedness which is evidenced by bond to the amount of $8,000. That it is necessary to levy and collect a sufficient amount of taxes to pay the interest and sinking funds on said bond.
“Fourth. That during the years 1910-1912 the said defendants, N. J. Allen, Louis Ches-ser, S. B. Maddox, C. A. Cantrell, and W. F. Hickman, W. M. Sagger and J. J. Perry, were the duly elected, qualified and acting school trustees for said school district No. 3. The plaintiffs are unable to give the dates when each of said defendants qualified and begun their duties as school trustees, and that plaintiffs are unable to give the exact dates when each of said parties resigned -said position, or the length of time that said parties filled said positions, for the reason that plaintiffs have been unable to secure the record to show when each of said defendants held said office, but that said facts are within the knowledge of said defendants as to the time they were so acting as school trustees.
“Fifth. That the said First National Bank of Benjamin is the duly selected and acting-county depository of Knox county, Tex., and as such is the custodian of the funds of said common school district No. 3.
“Sixth. The plaintiffs represent that prior to the .institution of this suit these plaintiffs went to" the officers of said First National Bank of Benjamin, Tex., who was the county depository- of Knox county, Tex., and informed them as to the indebtedness hereinafter set out, and requested said bank to institute suit to collect said amount that said defendant, though requested failed and refused so 'to do.
“Seventh. That plaintiffs represent that, during the years 1910-11 and 1912, the said defendants N. J. Allen, Louis Chesser, S. B. Maddox, C. A. Cantrell, W. F. Hickman, and J. J. Perry and W. M. Sagger, while they were acting in the capacity of school trustees for said common school district - No. 3, and the said First Bank of Truseott, of which Louis Chesser was its agent and general manager, and said bank was engaged in the banking business at Trus-cott during said time, and that during said time said defendants by virtue of their said offices as school trustees received and deposited in said bapk various sums of money belonging- to said school district. That the plaintiffs are unable to state the exact date when each item, of said money was received, but that said amounts are shown on the ba.nk books of said First Bank of Truseott, which’is in the hands and possession of one of the defendants, and that they are here notified to produce the same. The plaintiffs represent that said defendants received from the following persons the following sums of money which was the property of said school district, which is as follows, to wit: J. R. Cráig, $410.65; the Masonic Lodge of Truseott, Texi, for rents for school building, the sum of $50; from G. H. Coody, $52; rebate on school seats, $25.08; from W. S. Britton, tax collector of Knox county, Tex. the sum of $63.13; First Bank of Truseott, $25.38; C. L. Browder, $3.35; W. E. Browder, $7.81; W. A. Brown, $50.97; W. Bursey, 36 cents; T. H. Charters, $1.25; Louis Chesser, '$49.84; I. A. Dugat, $3.-31; James Eubanks, 73 cents; J. C. Eubanks, $21.50; J. B. Guynn, $11.64; O. B. Guynn, $1.56; Ben Lee, $5.29; J. B. Lee, $3.85; Mar-kum & Mae, $8.94; J. B. Marlcum, 95 cents; T. B. Masterson, $3.15; J. A. Moody, $47.32; D. M. Morrison, $11.35; W. T. Myers, $2.13; R. G. McCalley, $2; J. J. Perry, $3.50; W. P. Pitman, $1.82; W. M. Sagger, $12.04; Shawver Bros., $15.33; G. H. Shawver, $15.58; Truscott Trading Co., $7.50; A. E. Wesbrooks, $5.90; J. I-I. Westbrooks, $26.78; Mrs. E. M. Westbrooks, $22.04; A. E. Whittington & Co., $2.78 — making a total of $977.55.
“Eighth. That all of said money was the property of said common school district No. 3, and was collected by said defendants and deposited in said Bank of Truscott. That the money paid by said J. R. Craig was the purchase price of a school building belonging to said school district No. 3, which was sold by said trustees and paid for by said Craig. That the amount paid by said Coody was for a portion of said school building which was sold to said Coody by said trustees. That the other amounts, except the amount paid by said Masonic Lodge, was collected as an agreed tax by said parties, paying the same, and was in lieu of the regular assessed taxes; the same being assessed in accordance with the amount of property owned by said parties and paid to said defendants for the purpose of supplementing the school funds and for the use and benefit of said school fund.
“Ninth. That it was the duty of defendants to deposit the said money with the Eirst National Bank of Benjamin, Tex., the county depository and the legal custodian of said funds.
“Tenth. That, although the said defendants have been requested by plaintiffs to deposit said money in the county depository, they have failed and refused to do so, save and except the sum of $94.40.
“Eleventh. That said money has not been paid out by said defendants by virtue of any voucher drawn and approved by the county superintendent of Knox county, Tex., as required by law.
“Twelfth. That by reason of said facts said defendants became indebted to said common school district No. 3 in the sum of $883.15.
“Thirteenth. Wherefore plaintiff prays the court that said Eirst National Bank of Benjamin, Tex., be required to appear and prosecute this suit, and that upon a final hearing that judgment be rendered for the amount of said debt, interest, and costs of suit, and for such other and further relief as they may be entitled in law and in equity.
“Fourteenth. The plaintiffs further represent to the court that' they have an interest in the subject-matter of this suit for the following reasons, to wit: That said plaintiffs and each of them own property situated in said school district which is of the value of more than $2,000 each, and that by reason of the bonded indebtedness against said district it is necessary to levy and collect a sufficient amount of taxes to pay the interest on said bond and the sinking funds and to pay for the support and maintenance of said school, and that if said money is collected plaintiffs’ taxes will be reduced by reason thereof, and that if said debt is not collected that plaintiffs will suffer injury thereby, in that their property will have to be incumbered with taxes with the other property in said district for a greater amount than would be necessary if said debt was collected and said money placed to the credit of said common school district No. 3.
“Wherefore, plaintiffs pray that upon a hearing hereof judgment be rendered in favor of said county depository for the use and benefit of said common school district No. 3, for the amount of said debt, interest, and costs of suit, and for such other and further relief as plaintiff may be entitled to in law and in equity.”

To this petition defendants urged a general demurrer and nine special exceptions, all of which were sustained by the court, and the plaintiff, declining to amend, brought the cause to this court on appeal.

Appellants in their first assignment complain of the action of the trial court in sustaining defendant’s general demurrer to the trial petition as above set forth, and this contention we believe to be well taken. Under the law, plaintiffs, as trustees of common school district No. 3 of Knox county, were authorized to prosecute this suit. Appellees in their first counter proposition cite us to the cases of Lytle School District v. Haas, 24 Tex. Civ. App. 433, 59 S. W. 830, and Jernigan v. Finley, 90 Tex. 205, 38 S. W. 24. In the case of Lyfle School District v. Haas, above, the court held that the county treasurer alone could sue to require the transfer of school funds to the county treasury, and that the trustees of said district could not maintain such suit because, under article 926 of the Revised Statutes of 1895, the county treasurer was the custodian of all county funds, and, under the provisions of article 3935, said statutes, said officer was made the custodian of the school funds belonging to the county. And that under, the law it was the duty of the authorities of Medina county to turn over the school money due Atascosa county to the county treasurer of the latter county.

Appellants (plaintiffs in the trial court), in the case referred to, alleged in their petition :

“That a certain portion of Medina county, described by field notes, situated on or near the county line of Atascosa and Medina counties, had been duly and legally consolidated with the Lytle school district, of Atascosa county, as theretofore created, and existing, and that such consolidation had been duly made by an order of the commissioners’ court of Atascosa county at the February term, A. D. 1898, of said court, and that thereby said district had become, and still is, a legal public school district of said Atascosa county; that, for the scholastic year 1898 and 1899, defendants recognized said consolidated district as a public free school district of Atascosa county, and promptly transferred to the county treasurer of Atascosa county the public school fund belonging to said portion of Medina county; that on or about June 28, 1899, a number of citizens of said portion of Medina county presented a petition to the defendant Haas (who- was county judge of Medina county) praying to be detached from said Lytle school district, which petition was, without the consent of the qualified voters of said Lytle school district, in all things granted by the defendant Haas and the commissioners’ court of Medina county, but was rejected by Hon. N. R. Wallace, county judge, and by the commissioners’ court of Atascosa county; that there are now in the hands of the defendant G. B. Leinweber, county treasurer of Medina county, the sum of $385, public- free school funds available for the year commencing September 1,1899, belonging to said portion of Medina county, and that defendants had failed and refused to transfer the sum to the county treasurer of Atascosa county; that on or about January 1, 1900, plaintiff demanded the transfer of said fund, with which demand defendants failed and refused to comply, from which refusal on the part of defendants, plaintiffs appealed to Hon. J. S. Kendall, state superintendent of public instruction, of which appeal defendants had. due notice, and that on January 17, 1900, said state superintendent rendered his decision on said appeal, directing defendants to transfer said sum of money to the treasurer of Atascosa county; that said decision was not appealed from, and is now in full force' and effect, and binding on defendants, but that they have refused to comply with or obey the same.”

Defendants filed their original answer and plea in abatement, alleging that plaintiffs could not bring and maintain this suit; that the same could be done only by the county treasurer of Atascosa county, together with the' county judge of Atascosa county, as ex officio county superintendent of public instruction, and a general and special demurrer as well as an answer. They admitted the due consolidation of said district as alleged by plaintiffs, and that there was in the treasury of the county of Medina public free school funds apportioned to said portion of said county for the years 1899-1900 amounting to the sum of $385.54. They further alleged that, upon a petition filed by the majority of the voters of the Lytle consolidated district praying for the dissolution of said district and presented to the defendant Haas, the commissioners’ court of said Medina county by an order established another school district in Medina county, and that thereafter school trustees were appointed, for said newly established district, who had contracted with the teacher, etc. The plea in abatement was sustained and the cause was dismissed.

The holding of the court, in the easp to which reference is made above, that the county treasurer was the proper person to bring this suit for the transfer of the school funds by the authorities of Medina county of the school money due Atascosa county, was based, evidently, on the theory that so much of said school fund belonging to the Lytle school district of Atascosa county as had been apportioned for the benefit of those children of scholastic age residing in said Lytle school district but in Medina county, in fact belonged to the school fund of Atascosa county by reason of the consolidation of the two school districts above mentioned under the name and title of Lytle school district of Atascosa county; and that, such being the case, it was the duty of the county treasurer of Atascosa county to institute suit to compel the payment of this fund to Atascosa county, thereafter to be apportioned by the county superintendent to Lytle school district. That this interpretation of the court’s opinion and judgment is correct is shown by its reference to article 927, Revised Statutes of 1895, which reads as follows:

“The county treasurer shall keep a just and true account of receipts and expenditures of all the moneys which shall come into his hands by virtue of his office, and of the debts due to and from his county; and direct prosecutions according to law for the recovery of all debts that may be. due his county, and superintend the collection thereof.”'

Since the rendition of the opinion in this case just quoted, and also in the case of Jernigan v. Finley, 90 Tex. 205, 38 S. W. 24, to which appellees have cited us, the Legislature has provided for the establishment of county depositories, which may be in a banking corporation, association, or individual banker, in such county, and has further provided that, upon the selection of such depository by the commissioners’ court of the county:

“It shall be the duty of the county treasurer of said county, immediately upon the making of such order to transfer to said depository all the funds belonging to said county and immediately upon the receipt of any money thereafter to deposit the same with said depository to the credit of said county.” etc.

It would appear therefore that the county treasurer is no longer given the right, or charged with the duty, of being the custodian of the funds of the county, nor charged with the duty of bringing suit for the deposit, transfer, or possession of such funds; but that, under the amended law, the depository, as therein provided, is the proper custodian of the funds belonging to the county and which had been, by the order of the commissioners’ court, transferred to it, and, as such, it may have the right to bring suit for the deposit, transfer, or possession of any funds belonging to the county; but as to this right we are not called upon to decide in this case. But we do hold that in the case of a refusal of the depository to bring such suit, as was alleged in plaintiffs’ petition, such duty devolves upomthe beneficiaries of the funds, who in this case are the trustees of common school district No. 3. Therefore we hold the trial court erred in sustaining defendant’s general demurr'er to plaintiffs’ petition.

Hence it becomes unnecessary for this court to consider the question of whether or not the court erred in sustaining defendant’s special exceptions, because, having sustained the general demurrer, the plaintiffs had no opportunity to amend their petition so as to comply with the court’s ruling in sustaining any or all of the special exceptions.

The judgment is reversed, and the cause remanded for a new trial.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    FT. WORTH & D. C. RY. CO. v. FIRESTONE.
    (No. 8045.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 21, 1914.
    Rehearing Denied Jan. 16, 1915.)
    1. Evidence <&wkey;643% — Opinion Evidence-Expert Testimony.
    Where a witness was thoroughly familiar with the market value of land in the vicinity, and saw and examined plaintiff’s property immediately after the turf was burned, he is competent to testify as to the depreciation in the value of the land.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2359; Dec. Dig. &wkey;>543%.]

    2. Damages <§=>174 — Fires—Damage to Land —Evidence.
    While the measure of damages for the burning of the turf on land is the difference between its value immediately before and after the fire, testimony that the value of the land was depreciated in a specified amount per acre is admissible, substantially complying with the rule.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 462-467; Dec. Dig. &wkey;174.]
    3. Trial 45=3120 — Argument of Counsel.
    Where a witness testified that a turf fire had killed the roots of grass, a statement by ■counsel that the witness testified that it would take three or fours years for the grass to reset, is not error requiring reversal.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 285-287; Dec. Dig. &wkey;120.]
    4. Damages <&wkey;174 — Injuries to Land — Evidence.
    In an action for damages for a turf fire, evidence that the grass burned was thick, and was from four to ten inches high, is admissible.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 462-467; Dec. Dig. <@=>174.]
    5. Appeal and Error <@=>1050 — Review — Harmless Error.
    Testimony by witness that grass burned in a turf fire was of better quality than grass not ■burned, if erroneously admitted, was harmless, where there was no evidence as to the quality of the remaining grass.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. <@=>1050.]
    6. Appeal and Error <&wkey;1170 — Review — Harmless Error.
    Under court rule 62a (149 S. W. x), requiring the disregarding of immaterial errors, the refusal of an instruction in an action for damages for the burning of turf that no allowance could be made for injuries by droughts is harmless, where the court charged that the only damages recoverable were those suffered by reason of the fire, and there was nothing to show that the jury exceeded the court’s instruction.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. &wkey;1170.]
    Appeal from Clay County Court; W. T. Allen, Judge.
    Action by John H. Firestone against the Ft. Worth & Denver City Railway Company. From judgment for plaintiff, defendant appeals.
    Affirmed.
    Taylor & Humphrey, of Henrietta, and Thompson & Barwise and George Thompson, Jr., all-of Ft. Worth, for appellant. Want-land & Parrish, of Henrietta, for appellee.
   DUNKLIN, J.

John H. Firestone instituted this suit against the Ft. Worth & Denver City Railway Company for damages done to plaintiff’s land by reason of injury to the roots and turf of grass caused by fire alleged to have been negligently started by the railway company, and also for the value of the grass burned. From a judgment in favor of the plaintiff, defendant has appealed.

J. D. Utley, a witness for the plaintiff, after testifying what the market value of the.land was before the fire, was permitted, over defendant’s objection, to testify as follows:

“The market value of the land was damaged from $4 to $5 per acre by reason of injury and damage done to the turf and grass roots.”

One objection to this testimony was that the witness was not sufficiently qualified to give the opinion by reason of the fact that he had not seen the land before the fire. While it is true that the witness did so testify, yet it appears he was thoroughly familiar with the market value of lands in that vicinity and of that character, and that he saw and examined the land immediately after the fire, which, we think, was a sufficient predicate for the admission of the testimony.

Another objection urged to the testimony was that the only proper method of proving the damage done to the turf would be to prove the value of the land immediately before and immediately after the fire. This objection was also urged to testimony of like character given by the plaintiff, Firestone, who also testified to the market value of the land immediately before the fire. We are of the opinion that this objection is without merit, since it is quite clear that the testimony in both instances was a substantial compliance with the rule invoked by the objection.

The testimony referred to was the only evidence introduced to prove depreciation in the value of the land on account of injury to the turf, and, upon the theory that such testimony was not admissible, the same familiar rule for estimating such damages is made the basis of the further contention that there was error in the refusal of a special peremptory instruction requested by the defendant that no damages could be allowed by reason of injury to the grass roots and turf. That assignment is overruled, for the reasons stated already.

Plaintiff’s counsel, in argument to the jury, quoted the witness Utley as having testified that it would take three or four years for the grass to reset on the land. An assignment is presented to the court’s refusal of defendant’s request for an instruction that such argument could not be considered. While the witness did not so testify in specific terms, the argument was not so improper as to require a reversal of the judgment, since the witness did testify that he examined the roots of the grass after the fire and found that they had been entirely killed by the fire.

Another assignment is presented to the action of the court in overruling defendant’s objection to quite a lot of testimony given by Tom Firestone, John F. Firestone, Jr., and plaintiff, as shown by three separate bills of exceptions set out under the assignment. The only complaint made here is to that part of such testimony wherein the witnesses stated, substantially, that the grass burned was better than any other in the country and better than that which was left standing on plaintiff’s land. In two of the bills of exception a part of the testimony set out and objected to was undoubtedly admissible, as the same consisted of statements, substantially, that the grass burned was from four to ten inches high, was good thick grass', and the objection, being to the testimony as a whole was not tenable by reason of that fact. The same cannot be said of the other bill of exception, since the testimony there objected to consisted of the single statement that the grass burned was better than that which was not burned. If there was error in admitting that testimony we fail to perceive how it resulted in any harm to the defendant, since we are cited to no evidence showing the character or quality of the grass that was left standing.

Complaint is made of the refusal of another requested instruction that no damages could be allowed for injuries done to the turf by reason of hot weather and droughts. Indorsed on the requested instruction is the following:

“The foregoing charge was requested after the court read his main charge to the jury and before the conclusion of the opening argument by plaintiff. Befused. W. T. Allen, County Judge.”

Several of plaintiff’s witnesses, including himself, testified that there has been continued droughts in the vicinity of plaintiff’s land for several years, and that the grass had been very short on account thereof. In the charge given by the court to the jury injury to the turf by reason of the fire was the only basis submitted for allowing plaintiff damages for depreciation in the market value of his land. Aside from the suggestion of appellee that the requested instruction was not presented at the proper time, we are of the opinion that its refusal did not constitute reversible error, since there is nothing in the record to indicate that the jury went beyond the court’s instruction and allowed damages to the turf caused by drought and hot weather, and not by fire. Bule 62a (149 S. W. x).

The judgment is affirmed.
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author: CONNEB, C. J.

text:
    HARRIS et al. v. TAYLOR COUNTY.
    (No. 8068.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 19, 1914.
    Rehearing Denied Jan. 23, 1915.)
    1. Convicts <&wkey;ll — Bond—Sufficiency.,
    Under Bev. St. 1911, art. 6251, requiring two sureties thereon, a convict bond executed by one as principal and another as surety was invalid.
    [Ed. Note. — For other cases, see Convicts, Cent. Dig. §§ 30, 31; Dec. Dig. &wkey;>ll.]
    2. Convicts &wkey;>ll — Convict Bond — Consideration.
    The custody and control of a convict given to the principal and surety in a convict’s bond executed to the county judge and his successors in a penal sum afforded a sufficient consideration for the bond as a common-law obligation, though for want of two sureties, it was invalid as a convict’s bond.
    [Ed. Note. — For other cases, see Convicts, Cent. Dig. §§ 30, 31; Dec. Dig. &wkey;ll.]
    3. Convicts &wkey;>ll — Convict Bond — 'Validity as Coíimon-Law Obligation.
    Such bond, though invalid as an official or statutory bond, for want of two sureties, as required by Bev. St. 1911, art. 6251, was obligatory as a common-law bond.
    [Ed. Note. — For other cases, see Convicts, Cent. Dig. §§ 30, 31; Dec. Dig. &wkey;>ll.]
    4. Evidence &wkey;>317 — Competency—Hearsay.
    In an action on a bond executed in consideration of the custody and control of a convict, wherein the deposition of the convict offered by defendants was to the effect that he had paid his fine and costs, and where it was not objected that a proper predicate had not been laid, testimony as to his conflicting statements was not objectionable as hearsay, not made in defendants’ presence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1174^1192; Dec. Dig. &wkey;317.j
    Appeal from District Court, Taylor County; Thos. L. Blanton, Judge.
    Action by Taylor County against I. G. Harris and another. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    D. M. Oldham, Jr., of Abilene, for appellants. H. Bob Keeble, of Abilene, for appel-lee.
   CONNEB, C. J.

On February 5, 1912, appellant I. G. Harris, as principal, and appellant W. C. Fisher, as surety, executed a convict bond hiring Melvin Craig, who had theretofore been convicted of a misdemeanor, payable to Thomas A. Bledsoe, county judge of Taylor county, Tex., in the sum of $139.09, conditioned as required by Bevised Statutes 1911, art. 6251. This suit was instituted by Taylor county upon said bond, alleging that it was due and unpaid. The trial resulted in a judgment for the county as prayed for.

One of the material contentions made on the trial below and here is that the bond sued upon has but one surety, whereas the article of the statute already cited requires two. The fact is as stated in the objection, and our Court of Criminal Appeals, in the case of Ex parte Millsap, 39 Tex. Cr. R. 93, 45 S. W. 20, held such a bond invalid. We think it must be held that the bond under consideration in this case is not valid as a státutory bond, but appellee insists that, while it may be unenforceable as a statutory bond, it is nevertheless good as a common-law obligation, and we think this contention must be upheld.

The bond in express terms obligates appellants to pay to “T. A. Bledsoe, county judge of Taylor county, Tex., and his successors in office, the penal sum of $139.09, well and truly to be paid,” to which they bound themselves, their heirs and assigns, jointly and severally, conditioned upon the payment of said sum specified in the bond, and it is undisputed that said sums to the extent of the judgment herein have not been paid. By virtue of the execution and delivery of this bond, which was accepted by the county judge, appellants received the lawful custody and right of control under our statutes of the convict, Melvin Craig, which in a contractual sense constitutes a sufficient consideration for the obligation. See Nat. Bank v. Lester & Hazzard, 73 Tex. 542, 11 S. W. 626; Jacobs v. Daugherty, 78 Tex. 682, 15 S. W. 160; People v. Henry Johr et al., 22 Mich. 461; 4 Elliott on Contracts, § 3491; Murfree on Official Bonds, §§ 63, 324. These authorities undoubtedly sustain the proposition that, even though an official or statutory bond ruay fall short of the requirements of the statute, it may yet be obligatory as a common-law bond, and to the authorities above cited we will add the case of Bernheim v. Shannon, by this court and reported in 1 Tex. Civ. App. 395, 21 S. W. 386. In that case there was but one surety upon a claimant’s bond, whereas the statute required two, and it was held that, while the bond was invalid as a statutory bond, in that it contained but one surety, it was nevertheless enforceable as a common-law obligation. Nor do we think that in so holding we are in necessary conflict with the case of Ex parte Millsap, cited in behalf of appellants. In that ease Millsap had been convicted of a misdemeanor, and had been released on a county convict bond signed by the principal and one surety only. The fine and costs not having been paid, he was later arrested, and sought to regain his liberty, on writ of habeas corpus, by interposing the bond and our Court of Criminal Appeals merely held that the bond did not authorize the relief he sought. The issue there was between the convict and the state, and. not between the county and the principal and sureties on the bond, as here. Millsap, by virtue of his conviction, was lawfully committed to the custody of the proper officers until his fine and costs had been paid, and he could only be released by the payment of such fine and costs, or upon the execution and delivery of such bond as thb statute provided, and, neither having been done, the court merely refused to discharge him, and the general language of the decision denouncing the bond as invalid must be interpreted in the light of the issue before the court.

Error is assigned to the action of the court in .permitting the witnesses Rob Keeble and E. M. Overshiner to testify to certain declarations of the convict, Melvin Craig, to the effect that he had not paid the fine and costs in the case wherein he had been convicted, to which appellant objected “as being hearsay statements, made by persons not being parties to this suit, and not in the presence of either party to this suit.” The record discloses that this testimony was evidently offered as tending to impeach the witness Melvin Craig, whose deposition was offered by appellants, and who therein testified that he had paid said fine and costs. No objection seems to have been urged that the proper predicate had not been laid, and, this being true, the objection that Craig’s conflicting statements were hearsay, and. not made in appellant’s presence, is untenable.

While the evidence on the issue of the payment of the fine and costs in the case against Melvin Craig and the subsequent discharge of the bond sued upon in this case is conflicting, we think it, on the whole, sufficient to support the court’s finding and judgment in favor of the county.

It is, accordingly, ordered that all assignments be overruled and the judgment affirmed.

Affirmed.
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author: LEVY, J.

text:
    BAUGH v. McLAIN et al.
    (No. 1384.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 2, 1915.
    On Rehearing, Feb. 25, 1915.)
    1. Public Lands <&wkey;176 — Texas — Certificate-Rights of Assignee.
    Where a conditional land certificate issued in 1838 was in the same year sold and transferred, neither a subsequent purchaser of the land at administration sale of the original grantee’s estate, nor his heirs, were in a position to question the issuance of the patent in virtue of the certificate.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 571-575; Dec. Dig. &wkey; 176.]
    2. Public Lands <&wkey;178 — Texas — Certificate — Assignment.
    Under the law of 1837, there was no prohibition or restraint upon the grantee’s sale of a conditional certificate.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 579-582; Dec. Dig. <&wkey;> 178.]
    3. Public Lands <&wkey;178 — Texas — Certificate — Validity of Assignment.
    Where there was no proof that one who purchased a conditional certificate from the original grantee was then county surveyor, and it was found that he was not, the sale of the certificate to him was not void.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 579-582; Dec. Dig. &wkey;^ 178.]
    4. Public Lands &wkey;>175 — Texas — Forfeiture-Relocation.
    Where the purchaser of land at administration sale of the estate of the original holder of the conditional certificate, which had been assigned by him to another, received an unconditional certificate and relocated it upon the survey made for the conditional certificate, and filed his field notes in 1854, failing to comply with the law requiring field notes to be filed within one year from the date of relocation, the land commissioner was authorized to forfeit the relocation, the effect of which, under Acts 1852 (3 Gammel’s Laws, p. 936), was to make the land subject to survey as vacant land by the holders of valid certificates.
    [Ed. Note. — For other cases, see Public Lands. Cent. Dig. §§ 555-570; Dec. Dig. <&wkey;> 175.]
    5. Public Lands <&wkey;176 — Certificate — Rights of Assignee.
    Where a patent and certificate for an un-located balance issued in the name of the heirs of the deceased grantee, it inured to the benefit of the purchaser from the grantee’s estate in administration, who lost no rights by the issuance of the certificate to him as assignee, but retained such rights as he could legally establish.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 571-575; Dee. Dig. &wkey;> 176.]
    6. Public Lands <&wkey;178 — Texas — CERTIFICATE — Loss oír Rights — Acquiescence with Knowledge.
    Where the grantee of a conditional certificate transferred it, and it was filed March, 1854, it was notice 'of an adverse claim to the purchaser in administration of the grantee’s estate, whose relocation filed in P. county October, 1854, was forfeited by the land commissioner; and where the conditional certificate was applied by a subsequent assignee to land in A. county, and patent issued thereon, the purchaser acquiescing therein precluded himself from asserting against the state or such assignee’s successors any prior valid right to the land in P. county.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 579-582; Dec. Dig. <&wkey;> 178.]
    On Rehearing.
    7. Public Lands <&wkey;178 — Texas — Ceetifi-cate — Conclusiveness off Recital.
    Under Act Sept. 5, 1850 (3 Gammel’s Laws, p. .38), authorizing the county court, as a land board, to issue unconditional certificates “when the party applicant had previously obtained a conditional one,” the recital, in an unconditional certificate, that one K. was the assignee of the deceased grantee of a conditional certificate was conclusive of K.’s ownership of the certificate, and as against the grantee’s prior assignee, whose certificate had not been filed.
    [Ed. Note. — For Lands, Cent. Dig. § 178.] other cases, see Public i 579-582; Dec. Dig. &wkey;
    Appeal from District Court, Panola County; W. C. Burford, Judge.
    Trespass to try title by W. Pauline Baugh against Julia A. McLain and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    This is an action of trespass to try title, brought by appellant for the recovery of 1,280 acres of land in Panola county. The case was tried before the court without a jury, and judgment entered denying appellant a recovery of the land.
    It is admitted that appellant is the sole heir of James T. Kelly, and her claim to ownership of the land in suit is in virtue of such heirship. And appellees have title through vendors under patents issued on surveys made since 1870, covering all the land in suit.
    The material facts in the case are that on June 11, 1838, the board of land commissioners issued to Joseph Humphreys conditional land certificate No. 36, second class, for 1,280 acres of land. This certificate was located and survey made for Joseph Hum-phreys on August 20,1838, by the deputy surveyor in then Shelby, but now Panola, county; and on January 30, 1839, the field notes were filed and approved by the county surveyor. The field notes of this survey were never returned to the general land office. But it appears as a fact that on August 5, 1838, Joseph Humphreys, by written conveyance, sold and transferred, for a valuable consideration, this conditional certificate to Richard Hooper. In 1842 Joseph Hum-phreys died, and the probate court of Harrison county appointed two joint administrators of the estate of Joseph Humphreys, and the survey of August 20, 1838, was inventoried as a part of the estate. On an order of sale of the probate court, the administrators, by deed of April IS, 1844, for a valuable consideration paid by Kelly, conveyed to James T. Kelly, by metes and bounds, 1,230' acres of the land out of the survey for the conditional certificate. And by deed of June 30, 1846, the administrators under orders of sale conveyed, for a valuable consideration, to James T. Kelly 50 acres of this same survey. It does not appear that Kelly had notice of the transfer of the certificate to Hooper at the time of his purchase from the administrators. On February 16, 1852, the county court, sitting as a land board, issued an unconditional certificate No. 41, second class, on the conditional certificate No. 36, reciting that James T. Kelly was entitled to it as assignee of Joseph Hum-phreys, deceased. The conditional certificate was filed in the land office on March 13, 1854, and the unconditional certificate was filed in the land office on October 24, 1854. On August 4, 1853, James T. Kelly as a fact relocated the unconditional certificate No. 41 on the same survey in Panola county made for the conditional certificate. The survey- or’s records of Panola county show the following:
    “James T. Kelly refiles the headright of Joseph Humphreys for 1,280 acres, and files same on the original survey of the same in survey No. 74, Dist. No. 5, on the west side of Sabine river at Pulaski. This August 4, 1853‘
    “[Signed] Jas. T. Kelly.”
    Kelly had the surveyor of Panola county make survey of the land on the ground July 28, 1854, and such certified field notes of the survey were filed in _ the general land office October 21, 1854. It reasonably appears that these field notes are corrected field notes of the surveyor made August 20, 1838. No other person had located upon or surveyed the land for appropriation. The land commissioner, acting on the return of the field notes, entered the following:
    “Forfeited in consequence of nonreturn of field notes within the proper time, and the claim patented in Anderson county.”
    The date of the forfeiture, it is inferred, was at the time of or before the patent dated September 17, 1858. A survey was made, it appears, in Anderson county on March 10, 1853, by virtue of the conditional certificate No. 36 for John Smith as assignee, and filed and certified by the county surveyor. The administrator of Richard Hooper, deceased, conveyed to John Smith the land in Anderson county and the unlocated balance of unconditional certificate No. 41. It appears as a fact that the issuance of the unconditional certificate No. 41 was by the commissioner of claims approved on July 27, 1858, but was 'by him “registered and approved for the benefit of the heirs of Joseph Humphreys, the board not being authorized to issue to an assignee, and Humphreys seems to have been dead.” The notation also appears on the record of the headlights registered by the court of claims in reference to the certificate No. 41, “alleged owner, John Smith.” On September 17, 1858, a patent was issued to the heirs of Joseph Humphreys, by virtue of unconditional certificate No. 41, for 946 acres in Anderson county, Tex. On September 24, 1858, the commissioner of claims issued certificate to the heirs of Joseph Humphreys, deceased, for the unlocated balance of 334 acres of unconditional certificate No. 41, and a survey made therefor June 10, 1862, and field notes returned to the general land oflice for land in Shelby county February 23, 1863. The Humphreys certificate was not patented in Panola county. The several patents under which appellees hold title were on separate and distinct surveys made since 1871, and cover all the land in suit. It appears that Richard Hooper was county surveyor in 1838, but it does not appear that this Richard Hooper was the same Richard Hooper that purchased the conditional certificate. The court made the finding, which is supported by proof, that Richard Hooper was by purchase the owner of conditional certificate No. 36. '
    W. S. Anthony, of San Antonio, H. N. Nelson, of Carthage, and A. C. Bullitt, of San Antonio, for appellant. Brooke & Woolworth and R. W. Priest, all of Carthage, and Charlton & Charlton, of Dallas, for appel-lees.
   LEVY, J.

(after stating the facts as above). Appellant’s right, as heir of James T. Kelly, is entirely dependent upon James T. Kelly’s having title or claim as against the state for the land situated in Panola county prior to and at the time the state patented the land to the several vendors of appellees. And it is believed that the trial court properly entered judgment for the defendants, for the record shows that appellant failed to establish title or claim in James T. Kelly to the land in suit in Panola county on any ground upon which the court should have decreed title to her.

Finding the fact to be, as the court did, that on August 5, 1838, Joseph Humphreys made conveyance of his conditional certificate No. 36 to Richard Hooper, and that Richard Hooper became the legal owner of the same, it would not appear that James T. Kelly was the legal assignee. And James T. Kelly not being the legal assignee of the original grantee, then neither Kelly nor his heir for him would be in a position to question the issuance of the patent in virtue of the certificate by the state.

As the conditional certificate was issued under the law of 1837, there was no prohibition or restriction upon such sale by the grantee. Graham v. Henry, 17 Tex. 164; Merriweather v. Kennard, 41 Tex. 281.

And as there is no proof in the record that the Richard Hooper who purchased the certificate was the same Richard Hooper who was county surveyor at the time, and as the court’s judgment would comprehend the finding that he was not, the sale of the certificate to Richard Hooper was not void. The recital in the unconditional certificate that James T. Kelly was the assignee of Joseph Humphreys, deceased, was not conclusive of his ownership. The unconditional certificate was issued by the county court at the time the act of September 5, 1850, was in force. 3 Gammel’s Laws, p. 38. That act only authorized the county court, as a land board to issue unconditional certificates “when the party applicant has previously obtained a conditional one.” The “party applicant” clearly intends to refer to the original grantee. And the commissioner of claims, it appears, so construed the law at the time he registered and approved this unconditional certificate as a genuine certificate. He registered and approved the certificate only “for the benefit of the heirs of Joseph Humphreys” upon the ground that the county court, as a land board, was not authorized to issue an unconditional certificate to an assignee, and Joseph Humphreys was dead. The register also shows, it is observed, that, at the time of the approval by the court of claims, there was noted another claimant as assignee besides Kelly. It is thought that the trial court was authorized to hear proof of ownership and decide it, as the county court, sitting as a land board, had not power at that date to issue unconditional certificates to an assignee, and, as a consequence, the recital in the certificate that James T. Kelly was entitled to it as assignee of Joseph Humphreys, deceased, would not be .conclusive of his right as assignee. The cases cited and relied on by appellant as seeming to hold that the act of a land board in issuing a certificate would be conclusive of the fact as to the assignee entitled to it are not at variance with this ruling, for those decisions were under different legislative acts than the act of 1850, and such other acts conferred different powers upon the board. The case of Pitts v. Booth, 15 Tex. 453, had under review the act of February 4, 1854, and the case of Merriweather v. Kennard, 41 Tex. 281, had under question the law of 1846 (Hart, Digest, 3097); and while the case of Capp v. Terry, 75 Tex. 396, 13 S. W. 53, was considering a certificate issued of date February 20, 1850, the land board was acting under the law in force prior to the passage of the act of September 5, 1850.

But even assuming that it was established that James T. Kelly was the assignee of the unconditional certificate, it nevertheless must be held in this record, it is believed, that the application of the unconditional certificate to the Anderson county survey and issuance of patent and of certificate for unlocated balance to the heirs of Joseph Humphreys were not wholly unauthorized and void. It appears that, upon the issuance of the unconditional certificate, James T. Kelly undertook to make relocation of it, in accordance with sections 2 and 3 of the act of 1852 (3 Gammel’s Laws, p. 936), upon the same survey in Panola county previously made for the conditional certificate No. 36. In clear point of fact, it appears in the record, James T. Kelly made relocation of the unconditional certificate on August 4, 1853. The field notes of the survey on which said relocation was made were returned and filed in the land office October 21, 1854. These field notes as made were merely corrected field notes, it must be presumed as a fact, for the relocation of the certificate was in point of fact made on the same survey, and intended so to be done, made for the conditional certificate. The land commissioner, in passing on the field notes filed in the land office by James T. Kelly on October 21, 1854, acted on same on or before September 17, 1858, as follows:

“Forfeited in consequence of nonreturn of field notes within the proper time, and the claim patented in Anderson county.”

There was evident failure of compliance with the terms of the law requiring the return of field notes to the land office within a year from the date of relocation, and the land commissioner acted, in making actual forfeiture of the relocation, within his authority. The effect of the fact of forfeiture of the relocation for noncompliance with the terms of law in respect to the proper return of field notes and certificate of relocation was to make the land thereafter subject to survey as vacant land by persons holding valid certificates. Acts of 1852; House v. Talbot, 51 Tex. 462. And after such forfeiture in fact, and according to terms of law of the relocation of the unconditional certificate upon the Panola county survey, there was actual issuance of patent in virtue of the same unconditional certificate to land in Anderson county, and actual appropriation of land in Shelby county in virtue of certificate for the unlocated balance.

Though the patent and certificate for unlocated balance issued in the name of the heirs of Joseph Humphreys, deceased, same inured to the benefit of James T. Kelly, if he was the legal assignee, and he lost no advantage given him by the issuance of the certificate to him as assignee, but still retained such rights as he could legally establish. Merriweather v. Kennard, 41 Tex. 273; Hermann v. Reynolds, 52 Tex. 391; Lindsay v. Jaffray, 55 Tex. 626.

At the time of the issuance of the patent and certificate, both the conditional-and the unconditional certificates were on file in the land office. And the conditional certificate being on file since March, 1854, Kelly would have means of knowing that there were claimants of ownership thereof adverse to him. And knowing, as it must be presumed that Kelly did, of the forfeiture of his relocation and of the application of the certificate to the survey in Anderson county made by John Smith, assignee of the conditional certificate, and patent issuing thereon, and taking no proceedings in respect thereto, but acquiescing, it is thought that Kelly would be precluded to assert against the state or the appellees any prior valid right to the land in Panola county. And in view of the facts it is not believed that the acts of 1871 could be held applicable and operative and could make void the issuance of the several patents to the land under which appellees hold title. 6 Gammel’s Laws, p. 962; Id., vol. 7, p. 47; Adams v. Railway Co., 70 Tex. 252, 7 S. W. 729.

The judgment is affirmed.

On Rehearing.

Appellant, in an ably prepared argument, insists that this court was in error in affirming the judgment upon the grounds that Richard Hooper, and not James T. Kelly, was by purchase the owner of conditional certificate No. 36, and that even if Richard Hooper was not the owner, but James T. Kelly was the legal assignee of unconditional certificate No. 41, nevertheless the heir .of James T. Kelly could not recover in this suit because Kelly’s right of location had been so forfeited in fact by the land commissioner for Kelly’s failure to make return of field notes, as required by law, as to reannex the land to the rest of the public domain and make it subject to be located on and patented by appellees’ vendors. These points rest on the facts.

It is believed that appellant correctly states that we were in error in declaring that the recital in the unconditional certificate No. 41 that James T. Kelly was the assignee of Joseph Humphreys, deceased, was not to be regarded as conclusive of Kelly’s ownerership of the certificate, as against Richard Hooper. Upon a further consideration it is thought that there is not created by the act of 1850 a state of difference from the former laws, and that the cases cited would have application to the act of 1850 the same as in preceding acts. The fact, therefore, would appear that James T. Kelly was the assignee of unconditional certificate No. 41. But it is concluded, as before, that it has been proven that such right of Kelly to location on the particular land in suit had been so forfeited by the land commissioner, under terms of law, as to rearmes the land to the public domain and make it subject to be located on and patented to appellees’ vendors. And this fact, in connection with Kelly’s acquiescence, as before discussed, ultimates in the affirmance of the judgment.
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