author: MOURSUND, J.

text:
    GILBERT v. FINBERG et al.
    (Court of Civil Appeals of Texas. San Antonio.
    March 26, 1913.
    On Motion for Rehearing, April 30, 1913.)
    1. Evidence (§ 460) — Ambiguous Surveys— Explanation by Exteinsic Evidence.
    Where the field notes show a latent ambiguity when it is sought to apply the calls to the land, making it necessary to disregard either the north course or the east line of the survey, extrinsic evidence is admissible to show what land was intended to be embraced within the survey.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2115-2128; Dec. Dig. § 460.]
    2. Boundaries (§ B) — Calls—Superiority.
    Rules relating to the comparative dignity of calls are designed to aid in determining which calls of a survey were made by mistake, but the rules relating to actual surveys are frequently not applicable to office surveys.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec. Dig. § 3.]
    3. Boundaries (§ 36) — Surveys — Field Notes Sketch.
    In determining which call in the field notes of the survey was made by mistake, a sketch attached to the field notes, as well as the field notes of the entire block, of which the survey by description and by the sketch constitutes a part, may be considered.
    [Ed. Note. — For other eases, see Boundaries, Cent. Dig. §§ 160-162, 164, 166-176; Dec. Dig. % 36.]
    4. Boundaries (§ 37) — Sufficiency oe Evidence-Location oe Surveys.
    Evidence in trespass to try title held to show that the survey in controversy was located as claimed by plaintiff, showing that the first call of the field notes “along line of” a certain survey was inadvertent.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184-194; Dec. Dig. § 37.]
    On Motion for Rehearing.
    5. Evidence (§ 108) — Intention oe Witness.
    The knowledge of the person making calls in field notes of a survey as to the facts in connection with the survey is admissible in determining the meaning of the language used in the field notes; such evidence not constituting a statement of his intentions.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 202-212; Dec. Dig. § 108.]
    Appeal from District Court, Uvalde County; R. H. Burney, Judge.
    Action by Mrs. Kate L. Gilbert against Mrs. George Finberg and others in which defendants filed a cross-action. From a judg ment for defendants, plaintiff appeals.
    Reversed and rendered.
    See, also, 141 S. W. 82.
    Webb & Goeth, of San Antonio, and Love & Williams, of Uvalde, for appellant. G. B. Fenley and Martin, Old & Martin, all of Uvalde, and Clark & Bliss, of San Antonio, for appellees.

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

   MOURSUND, J.

Appellant sued appellees in the district court of Edwards county in trespass to try title to recover 640 acres of land in said county known as survey 71, block 3, of the Texas, Western & Narrow Gauge Railway Company’s lands, describing the same as follows: Beginning at the northwest corner of survey No. 70; thence south 1,900 varas to stake; thence west 1,900 varas to stake; thence north 1,900 varas to stake; thence east 1,900 varas to stake. And also describing the same by giving the boundaries according to an actual survey, in which the corners were marked on the ground. Appel-lees disclaimed title to a parcel of land described by field notes, containing 56 acres, and as to the remaining portion they pleaded a general denial and not guilty, also statutes of limitation of three, five, and ten years, and by cross-action sought to recover all of the land sued for except the 56 acres disclaimed, and further sought to recover 160 acres, out of survey No. 71; such cross-action being based upon the statutes of limitation. Appellant, by supplemental answer, pleaded not guilty to the claims of appellees under their cross-action. The' verdict being in favor of appellees, judgment was entered that appellant take nothing by her suit except the 56 acres to which title was disclaimed by appellees, from which judgment this appeal was taken. The opinion of this court upon the former appeal of this case is reported in 124 S. W. 980, and by the Supreme Court in 141 S. W. 82.

Findings of Fact.

An agreement of counsel was filed containing the following provisions:

“First. That survey No. 71, S. P. Ry. Co. lands, fronting- on the east bank of the Nueces river, in Edwards county, Tex., is properly and definitely located by its calls for natural and artificial landmarks, as given in the original field notes now in evidence, by running its south boundary line from the river on a line running S. 85° E. the distance called for, its east boundary line by running from its southeast corner N. 5° E. the distance called for, its north boundary line from its northeast corner N. 85° W. to the river, and then down the river with its meanders to place of beginning; said lines being run by the compass by allowing a variation of the needle from magnetic north, 9° 15', and that said lines will thus retrace the lines of the original survey.

“Second. It is further agreed that beginning the survey No. 1, block 3, T. W. N. G. Ry. Co. lands, at the southeast corner of said S. P. survey No. 71, and allowing the same variation of the needle, and then running the course of the east boundary lines of said S. P. survey No. 71, to wit, N. 5° E. the distance of 1,900 varas, and then running the north boundary line section 1, block 3, S. 85° E. at right angles to its first line, then its east boundary line S. 5° W. at right angles to its second line and parallel with its west line, then its south boundary line N. 85° W. on a line parallel with its north line, 1,900 varas, to place of beginning, and then by constructing the remaining sections of said block 3, from section 2 to 80, inclusive, in harmony with foregoing described courses — that is all west lines N. 5° E., all north lines S. 85° E., all east lines S. 5° W., and all south lines N. 85° W. — then the lines and boundaries of sections 68 and 71 of said block 3 will be located as claimed by the defendants, and, if so located, plaintiff will not be entitled to recover any of the lands described in her petition, except the 56 acres disclaimed by defendants.

“Third. It is further agreed that if in constructing section 1, of block 3, T. W. N. G. Ry. Go. lands, it is begun at the said southeast corner of section No. 71, S. P. Ry. Co. lands, and thence run its first or west line north, allowing a variation of the needle of 9° 15' from magnetic north 1,900 varas, then run its north boundary line east, at right angles with its west line, 1,900 varas, and then south, 1,900 varas, and then west 1,900 varas to place of beginning, allowing at all times the same variation of the needle, and, using the same variation of the needle, construct the remaining sections of block 3, from section 2 to 80, inclusive, and tying same to said section 1, and running their lines north, east, south, and west, respectively, then sections 68 and 71, of said block 3, will be located as claimed by plaintiff, and if so located by the evidence, plaintiff is entitled to recover the land described in her petition, unless defeated by limitation.

“Fourth. It is further agreed that the variation of the compass needle of 9° 15' on which the lands in controversy were actually located on the ground by recent surveys, and used in locating said lands according to both theories or plans hereinbefore outlined, was the true and correct variation of the needle.

“Fifth. It is agreed that either party may offer any other admissible evidence, to be considered upon any and all issues between the parties.’’

The N. E. and S. E. corners of survey No. 71 S. P. R. R. Co., according to the field notes, are evidenced by a stake and mound only, and to locate the same and the east line of the survey it is necessary to run the lines as stated in the above agreement. All of the 80 surveys in block 3 T. W. N. G. Ry. Co. are office surveys, made January 8, 1876, by Dennis Corwin, deputy surveyor of Bexar district, who up to the time he testified in this case had never been on the ground where these surveys are located, and who did not survey the east boundary line of survey No. 71 S. P. R. R. Co., and who, in explanation of his work and in answer to a question calling his attention to the' fact that the east line of said survey 71 S. P. R. R. Co. ran north 5° east, testified as follows: “The deflection of five degrees from the cardinal points, or from the north and south, escaped my observation. I certainly did not take notice of the fact that the S. P. R. R. Co. survey lines deflected five degrees from the north, south, east, and west course, because that fact was not known to' me.” Cor-win testified he was a land surveyor and civil engineer; that he began practical surveying in 1854, was elected district surveyor of Travis land district in 1859, and resigned in 1861 to enter the army, was afterwards deputy district surveyor of Young, Milam, Bexar, Palo Pinto, and Jack land districts. A certified copy from the General Land Office of the field notes of survey No. 1 in said block 3 was introduced in evidence; the calls contained therein being as follows: “Beginning at the S. E. cor. of Sur. No. 71, in name of S. P. R. R. Co. Thence N. 1900 vrs. along line of said Sur. to stake. Thence E. 1900 vrs. to stk. for cor. Thence S. 1900 vrs. to stk. for cor. Thence W. 1900 vrs. to beginning.” To this copy of field notes is attached a copy of a plat of said block 3, with an arrow thereon indicating the meridian, and while the same is upon the scale of only a half inch to the mile, yet it is clearly apparent therefrom that the lines of said block as shown on said plat run north and south and east and west, and do not correspond in course with the north and south lines of the surveys of S. P. R. R. Co. block shown on said sketch, which vary five degrees from an east and west course. The east line of survey 71 S. P. R. R. Co. is depicted as corresponding to the extent of its length with the west line of survey No. 1, block 3, and plainly does not run at right angles with the north and south lines of said survey 71 S. P. R. R. Co. In fact, the east lines of all the S. P. R, R. Co. surveys on this sketch appear to run north and south. Survey No. 72 S. P. Ry. Co. is depicted as south of survey No. 71, and as not extending so far east as No. 71, while in fact the field notes place it north of No. 71, and extending 67 varas further east than No. 71. The same error occurs in the sketch with reference to surveys 69 and 70, 63 and 64, and 77 and 78.

The plat of the 50 S. P. R. R. Co. surveys made by H. R. Biberstein shows Bull Head creek crossing the S. E. corner of survey 63, while the sketch places it about a half mile further south, and the sketch also places Cedar creek about a mile further north than it appears on Biberstein’s plat. The Corwin sketch contains only that portion of the S. P. R. R. Co. block located by Biber-stein which lies east of the east prong of the Nueces, and when so taken alone such surveys do not show as plainly the deflection of five degrees as is shown on the Biberstein plat, on which he has the meridian running through the portion of the block situated on the middle prong of the Nueces, in which portion most of the surveys are located on a due east and west course. The difference between the east and west lines of the surveys located on the middle prong and those ■on the east prong is very marked; but, the lines running north and south being short, the difference is hardly noticeable. Survey No. 2, block 3, begins at the N. E. corner of No. 1, running east 1,900 varas, then south, west, and north, each call being for 1,900 varas. Surveys 3 to 80 same block in their consecutive order tied to the preceding survey, with all lines 1,900 varas, the courses east, south, west, and north, with no calls for any object, natural or artificial, on the ground, except the first call in the field notes of No. 80, which reads: “Beginning at S. E. corner Sur. 79; thence S. cross creek 1900 vrs. to stk.” This circumstance is given no weight by either party, and probably occurred because the sketch places survey 80 on Oedar creek as it is erroneously indicated on said sketch.

The Biberstein plat of the 50 S. P. R. R. Co. surveys was filed in the General Land Office August 3, 1874. Survey 71 S. P. R. R. Co. was patented February 7, 1881. Sections 1 and 71, block 3, were patented April 8, 1876. Section 68, block 3, was patented July 5, 1888. The locative calls contained in the patents correspond with those of the field notes hereinbefore stated.

A copy of the map of Edwards county used in the General Land Office prior to 1883 is in evidence, which indicates clearly that the east and west lines of block 3 are not 'considered to be upon the same course as the east and west lines of the S. P. R. R. Co. block, and indicates that said block 3 was laid off so as to have its lines run north, east, south, and west. It, however, does not show where block 3 ties onto the 8. P. R. R. Co. block, there being an apparent vacancy between survey No. 1, block 3, and surveys 72 and 77 S. P. R. R. Co., and the S. W. corner of survey 1, block 3, being opposite the S. E. corner of survey No. 72 S. P. R. R. Co., and approximately 950 varas north of the S. E. corner of survey No. 71 S. P. R. R. Co.

A copy of the map used in the General Land Office, dated March, 1883, is also in evidence, which indicates by dotted lines a slight conflict between survey No. 1, block 3, and surveys 71 and 72 S. P. R. R. Co., and shows clearly that the lines of block 3 are not considered as running on the same course as those of the S. P. R. R. Co. block, but as running according to the calls of the field notes.

Appellees’ witness Gray, a surveyor, being shown the sketch attached to field notes of survey No. 1, block 3 (called the Corwin sketch), testified it was on the scale of about one-half inch to the mile; that on such a scale the difference between lines running astronomically north and those running 5 degrees east of north would not be much to the ordinary eye; he thought it could not be detected; that it would not make much difference on a few sections, but the further you got away from your beginning point the greater the difference. Upon cross-examination he was shown another map, but the record does not disclose what map, and it is difficult to arrive at what he did testify concerning same.

Five degrees difference in course will make a difference of 165 varas in a mile. Survey No. 1, in block 3, is the N. W. corner of the block,, which runs east 10 miles and south 8 miles, and on the “Corwin sketch” is depicted as a square with the exception of survey No. 80, which falls below the 8-mile tier of surveys because the sixth tier contains only 9 surveys, one being omitted on the west evidently for fear of a conflict, as an S. P. R. R. Co. survey is shown on such sketch to extend east so as to conflict with block 3 if the sixth tier was filled out. On the map used in the Land Office prior to 1883, block 3 is given the same shape as in the Corwin sketch. On the map dated March 1883, survey No. 21 in the third tier, instead of being south of No. 20, is south of No. 19, and from then on the block extends a mile further east than in the Corwin sketch; but the section at the west end of the sixth tier is left vacant as in the Corwin sketch', dropping survey 60 to the next tier of surveys. It follows that upon the Land Office map of 1883 surveys 68 and 71, the location of which is involved in this suit, are located a mile east of their location as indicated by the “Corwin sketch.” No explanation of this is made, nor are the field notes of the block given in detail, but merely the statement that each survey ties onto its preceding one. We assume from the agreement that the field notes locate the surveys as shown by the Land Office map of 1883.

Considerable evidence was adduced by which appellees sought to show limitation, but the court held the same insufficient to raise the issue, and, no question being raised involving the correctness of such ruling, we will not make any findings in regard to such testimony.

Opinion.

Appellant contehds that the question of the location of the surveys in question, under the agreement and the evidencé, was one for the court and not for the jury, and this view is also entertained by appellees as shown by their subcounter proposition to the proposition submitted by appellant under the first assignment of error. Under the agreement and the evidence, we are of the opinion that the location of the surveys in question became one for the court, and will therefore consider the question whether a verdict should have been instructed for appellant.

There is nothing ambiguous on the face of the field notes of survey No. 1, block 3, but when it is sought to apply the calls to the land, they disclose a latent ambiguity; that is, they conflict with each other, and it becomes necessary to disregard either the north course or the east line of survey No. 71 S. P. R. R. Co. In such cases in order to determine the conflict and show what land was actually intended to be embraced in the survey extrinsic evidence may be resorted to. Sloan v. King, 33 Tex. Civ. App. 537, 77 S. W. 48; Hamilton v. Blackburn, 43 Tex. Civ. App., 153, 95 S. W. 1097.

When the S. E. corner and the east line of No. 71 S. P. R. R. Co. are located by running course and distance from its S. W. corner, and we then begin at such S. E. corner to apply the field notes of survey No. 1 to the ground, we find that it is impossible to run with the east line of said survey No. 71, and 'at the same time to run north, because such east line runs N. 5° E. and the divergence between the two lines at the end of 1,900 varas is 165 varas. As the two calls lead to different results, one or the other was inserted by mistake, and the one inserted by mistake should be disregarded. All rules relating to the comparative dignity of calls are designed to aid in determining which call or calls of a survey were made by mistake; but in passing upon an office survey, where there are no footsteps of the surveyor to follow, the rules relating to actual surveys are frequently not applicable.

In the case of Boon v. Hunter, 62 Tex. 588, the court said: “It is, however, not believed that the same rules in regard to the lines or corners of other surveys called for in a patent can be applied, when it clearly appears that no actual survey was ever made, and in such case it becomes necessary to look to all matters of description contained in the patent, in order to determine what particular land was conveyed and intended by the state and the grantee to be conveyed by the patent. If, in such a case, from a consideration of all these, in connection with the facts surrounding the parties, and the transactions to which the parties looked at the time the patent was issued, the thing granted can be with certainty identified, then the grant ought not to be held void; but such matters of description as were evidently given by mistake should be disregarded, and effect given to the calls which are certain and are found, which, in connection with others matters of description contained in the grant, will make it conform to the evident intention of the parties.”

Again, in the case of Sloan v. King, supra, the court, citing many cases in support of its statement, said: “It follows, therefore, that whenever the evidence is sufficient to induce the belief that the mistake is in the call for the natural or artificial objects and not in the call for course and distance, the latter will prevail, and the former will be disregarded.”

In passing upon the question of which call in this case was made by mistake or inadvertence,’ it is,' of course, proper ’ to consider the sketch attached to the field notes of survey No. 1, as well as the field notes of the entire block of which survey No. 1, both by description and by the sketch, constitutes a portion. We have here a block .of 80 surveys platted upon the sketch which beyond a doubt indicates the lines as running in accordance with the cardinal points of the compass, the field notes of said block containing 320 calls, all of which are either for north, east, south, or west. This block runs east 10 miles, and it is in evidence that a divergence of five degrees between two lines makes a difference of 165 varas be-, tween the two lines for each mile traversed, so that in laying out this block, if all courses were changed to read 5 degrees variant from the cardinal .points, the S. E. corner of the tenth section would be 1,650 varas distant from where it would be located if the line is run east. Certainly no surveyor of 22 years’ experience could intend to appropriate and have patented land not described ‘by him in his field notes, and to locate which something would have to be read into each patent. On the other hand, it is contended that the surveyor intended the west line of survey No. 1 to run with the east line of survey No. 71, as shown by his field notes, and that he did not intend to appropriate any land lying west of said line. It is safe to assume that a surveyor never deliberately or intentionally locates a survey so as to conflict with a prior survey unless he believes the former location to be invalid. These conflicts usually occur by mistake or inadvertence, and in this case it appears that the surveyor was very careless in using a defective plat of a portion of the S. P. R. R. Co. survey as a basis for his work, and •it further appears reasonable that such plat was not made from the field notes as, in addition to the mistakes in the numbers of the surveys, it also has the location of the two creeks essentially wrong. It is likely it was carelessly copied from the Biberstein plat or some other map. Having such basis, showing survey 71 to extend further from the river than 72, he adopted the S. E. corner of No. 71 as his beginning point, oblivious, doubtless, of the fact that by so doing his survey would conflict with survey No. 72, even if a conflict were avoided with No. 71. It appears that he not only had failed to prepare himself with the necessary data for accurate work, but that he did not have in mind the fact that the east line of No. 71 S. P. R. R. Co. ran N. 5° E., or he would not have called to run his lines north, east, south, and west. With careless or hasty work it was much easier to overlook the course of such east line than to make a mistake of five degrees in the courses of 320 lines. We think the evidence conclusively shows, even without his testimony to that effect, that at the time he did this work he did not know that the east line of Ño. 71 S. P. R. R. Co. ran N. 5° E. While he had opportunity to know such fact and should have known it, yet he undoubtedly did not know it, or he would not have made his field notes read as they do, nor made his sketch as he did. No surveyor would regard a difference of five degrees in course as too in-consequent to mention. In fact, the course is of necessity accurately stated, or else the whole science of surveying would fall and interminable confusion result.

We cannot agree that the law permits this block of 80 surveys to be reconstructed upon a different course than that called for in the field notes merely because a call was made for the first line to run with an unmarked line of. which it is plain the surveyor did not even know the course," but assumed it was north. For appellees tb win, it becomes necessary to change each call in the 80 surveys; but if we change the first call by striking out the words “along line of said survey,” the entire block can be laid out according to the calls of the field notes and patents for course and distance, leaving a slight conflict between survey No. 1 and No. 71 S. P. R. R. Co., and increasing the conflict between said survey No. 1. and survey No. 72 S. P. R. R. Co., which would exist under the other theory. This conflict amounts to very little when considered in connection with the total acreage laid out, and, while there is no evidence of conflicts caused if the block be laid out according to appellees’ theory, it is safe to assume that when such block is depicted on the maps in use in the General Land Office as laid out north and south and east and west, a change as material as the one proposed would result in conflicts.

We are of the opinion that the court should have instructed a verdict for appellant, and the judgment of the trial court is reversed, and judgment here rendered that plaintiff recover the land sued for by her.

Judgment reversed and rendered.

On Motion for Rehearing.

Appellees complain of the assumption in our findings of fact .that surveys Nos. 68 and 71 are located as shown by the Land Office map of 1SS3, which assumption was based upon the written agreement filed in the case, and related solely to the question whether these surveys are located by the field notes in the ninth or tenth tier of surveys east of the beginning point of the block. If located in the tenth tier, a change of five degrees in the-course would throw the surveys further south than if in the ninth tier, and from the clause in the agreement which shows the relative positions survey No. 71 would occupy under the two theories we concluded the field notes must have placed the two surveys in the tenth tier, and therefore as depicted on the map of 1883, instead of as on the previous map and the Corwin sketch. We think it obvious from the connection in which we used the language ‘ ob-' jected to- that such was our meaning, but make this statement because appellees profess a fear that we assumed from the agreement the survey lines should be run according to the cardinal points of the compass instead of with a deflection- of five degrees from such cardinal points.

Appellees also infer, from our describing, in our findings of fact, the Land Office maps introduced in evidence, that we gave great weight to such maps in determining the issues in this case. The Supreme Court held these maps admissible in this case “for whatever they might be worth as throwing light on or as corroborative of the location of the land in suit as originally fixed and placed.” The opinions upon the former appeal do not disclose that the question was raised whether block 3'should be laid out according to the cardinal points of the compass or by lines variant five degrees from such points; in fact, it appears that the only question was whether the evidence was sufficient to show the location of survey No. 71, and it was held that it was not sufficient because the field notes connecting it with the beginning point of the block were not introduced, but merely the maps. Such maps being held admissible by Supreme Court and being admitted in evidence, we described the same in our findings .of fact, though of the opinion that as the case is made by the agreement filed herein they have no probative value “as throwing light on or as corroborative of the location of the land in suit as originally fixed and placed.”

Counsel for appellees have much to say concerning the question whether “north” means according to the true meridian or according to the magnetic meridian, and say we assume that it means according to the true meridian. They have signed an agreement filed in this case, by which it is provided that the lines of survey 71 S. P. Ry. Co. are correctly located by running upon a variation of 9° 15' E. and that the lines of block 3 are to be run upon the same variation, so far as locating surveys 68 and 71 is concerned. We are not informed whether by using the variation agreed upon they sought to locate the lines according to the true meridian, or whether they estimated that such a variation was required in order to locate the surveys where a survey according to the magnetic meridian, if made in 1876, would have placed the surveys. However, as ap-pellees in their motion for rehearing repeatedly assume that the east line of survey No. 71 S. P. Ry. Co. is a line running five degrees east of the sidereal north, we infer that the variation was agreed upon for the purpose of running the lines on the basis of the true meridian,. either in accordance with the cardinal points of the compass or variant five degrees therefrom. The discussion in regard to whether survey lines should be run according'to the true meridian or the magnetic meridian, is foreign to the issue in this case. The issue as made by the agreement is whether the lines of block 3 (using a variation of 9° 15' E.) shall be run according to the cardinal points of the compass or by courses varying five degrees from such points. Appellees’ real contention is that “north” does not necessarily mean north, but may mean about north, or in a northerly •direction, and that in this case in the call for the beginning line of survey No. 1, block •3, it means N. 5° E., and that each other •course called for in the field notes of the block must be construed to be five degrees variant from the course actually mentioned. Several cases are referred to in support of this theory, but all are very different from this case. The case of Grace v. Walker, 95 Tex. 39, 64 S. W. 930, 65 S. W. 482, which appellees contend is virtually overruled by us, was one involving the construction of an •agreement to donate land for a road. Certain landowners made a proposal for a •change of road which was accepted by the •city council by the adoption of an ordinance making the change and describing the road. The owners agreed to donate a strip of land 40 feet wide along the lines of their lands. The call construed by the Supreme Court read as follows: “Hence north along Kennedy’s and C. D. Grace’s west line to J. I. ■Chenowith’s S. E. corner.” Said line was not a true north line, and it was contended that the description in the ordinance could not be applied because a north course would pass through Grace’s land instead of along his line. The court held that the call for north gave only the course which was controlled by the calls for Grace’s west line and 'Chenowith’s southeast corner.

The written descriptions in a deed are to •be construed in the light of the facts known to and in the minds of the parties at the time, and with reference to any facts or monuments on the ground, which are referred to in the deed. It was apparent in ■said case that all the parties knew exactly where the lines were, and intended the road to run with such lines at a width of 49 feet, •and that the word “north” used by the city •council did not express the meaning of the parties, but was used mistakenly for the purpose of expressing the idea of a general northwardly direction. The calls for the lines expressed the true intent of the parties and controlled the call for a north course which was used mistakenly.

In this ease we find the words “north,” '“east,” “south,” and “west,” each used 80 times by a practical surveyor of long experience, who was preparing field notes of 80 ■sections of land, upon which field notes patents should issue containing as a means of identifying the land the field notes so prepared by him. It is safe to say he would not lightly use the words “north,” “east,” ■“.south,” and “west,” in any inexact sense, as all of his training forbade such course. He is bound to have known that a difference of five degrees in the course would make a difference of 165 varas in a mile. He calls for the west line of survey No. 1, block 3, to run north with the. east line of survey No. 71 S. P. Ry. Co., which line was not located on the ground, but was to be located on a course running N. 5° E. from the S. E. corner, which was also not located on the ground, but to be located by running course and distance from the S. W. corner of survey No. 71. He had never been on the ground, but the field notes and a sketch of the S. P. Ry. -Co. block were on file in the Land Office. The fact that he failed to call for the west line, survey No. 1, to run N. 5° E., in itself indicates that he overlooked the fact that- the line of survey 71 was to be located by that course; but his sketch and his other calls in the field notes of the 80 surveys make it very clear that he overlooked, or did not know, that the east line of survey 71 S. P. Ry. Co. was to be located by running N. 5° E. Appellees infer, from the fact that we lay little stress upon the testimony of Corwin to the effect that he did not know of such deflection in the east line of survey No. 71 S. P. Ry. Co., that we considered such testimony inadmissible.

We think the knowledge of the person making the calls in a deed or in field notes, with respect to facts having connection with his survey, is admissible as a circumstance to be considered with the other evidence in determining what he meant by language used by him, and do not agree with appellees that such testimony constitutes a statement of what he intended to do, or of what he did not intend to do. However, we think the evidence, aside from his testimony, plainly showed that at the time he made the office survey he either had not examined the field notes of survey 71 S. P. Ry. Co., or that he had not noticed or remembered the deflection in the course of the east line. The words “north,” “east,” “south,” and “west” mean due north, east, south, and west, and when applied to courses of lines cannot be discarded or given a different meaning unless used in connection with calls for specific objects or lines, which, in view of all the facts, more certainly locate the lines in accordance with the true intent of the party using the language than the calls for course.

The survey of the 80 surveys constituting block 3 being considered as one survey, it is apparent that, by letting the courses given for all lines control the call for a portion of an unloeated line of another survey, the true intent of the surveyor will be arrived at, and that is the object to be attained. We will also say that had the east line of S. P. Ry. survey No. 1 been located on the ground and known to the surveyor, and called for by its correct course, and yet all other calls been for the cardinal points of the compass alone, we would not feel authorized to change such other calls upon a mere presumption that the surveyor in compliance with a directory statute intended to make the surveys square.

We see no reason for changing the conclusion arrived at in our original opinion, and therefore overrule the motion for rehearing.


source: Caselaw Access Project

author: HARPER, C. J.

license: Public Domain

text:
    ROSENTHAL et al. v. SUN CO. et al.
    (Court of Civil Appeals of Texas. El Paso.
    April 3, 1913.
    Rehearing Denied May 1, 1913.)
    1. Evidence (§ 386) — Parol Evidence — Decree.
    Where the calls in a partition decree, supported by a map expressly made a part thereof, are unambiguous, extrinsic evidence that the survey occupied some other position was inadmissible.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 1678-1697; Dec. Dig. § 386.]
    2. Boundakies (§ 40) — Location—Question eob Juey.
    In trespass to try title involving the location of a boundary between a tract set apart by a partition decree and the adjacent tract, the question of the location of the boundary 7teW for the jury under the evidence.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 196-204; Dec. Dig. § 40.]
    3. Boundaries (§ 3) — Calls — Beginning Cornee.
    The beginning corner of a survey is not usually of any more importance in determining the location of the survey than any other corner therein.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec. Dig. § 3.]
    4. Boundaries (§ 40) — Questions eor Jury —Laying Out and Platting Lands.
    Where the laying out and platting of lands into subdivisions is one piece of work, but there is uncertainty as to the location, the question is for the jury.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 196-204; Dec. Dig. § 40.]
    5. Appeal and Error (§ 837) — Harmless Error — Instructions.
    The court on appeal, to determine whether a charge complained of was erroneous, must determine what issues involved were necessary to be passed on to enable the trial court to render a proper judgment.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3262-3272, 3274-3277, 3289; Dec. Dig. § 837.]
    6. Partition (§ 95) — Decree—Construction —Intention oe Court.
    A partition by decree of court is the act of the court, and its intention governs.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 300-316; Dec. Dig. § 95.]
    7. Partition (§ 95) — Decree—Construction.
    Where a plat, made part of the report of commissioners in partition and of the decree, covered all the land intended to be partitioned, but the field notes in the rejport did not do so, the question was as to the intent of the commissioners in their report and the court’s intention in its adoption by decree.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 300-316; Dec. Dig. § 95.]
    8.Appeal and Error (§ 1064*) — Harmless Error — Erroneous Instructions.
    Where there are two grounds on which the successful party may properly recover on a finding by the jury in his favor, and the court on appeal does not know whether, the first was controlling, it will not set aside the judgment for error in an instruction thereon.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064 ; Trial, Cent. Dig. §§ 475, 525.]
    Appeal from District Court, Harris County; Norman G. Kittrell, Judge.
    Action by Morris Rosenthal and others against the Sun Company and others. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    Presley K. Ewing, A. L. Jackson, John B. Warren, H. J. Dannenbaum, and Fisher, Sears & Sears, all of Houston, for appellants. S. H. Brashear and Carlton, Townes & Townes, all of Houston, and Greer & Minor, of Beaumont, for appellees.

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

   HARPER, C. J.

This was an action in the form and with the averments of trespass to try title, by Morris Rosenthal, William Sporn, Rannie Mooney, joined by her husband, J. E. Mooney, Susan West, joined by her husband, Fred R. West, Brack Har-grave, and the minors, Urilder, Nobles, and Wilson Hargrave, by their guardian, Clementine E. Majorowitz, suing as or in the right of the heirs of Mary Hargrave, deceased, against the Sim Company, J. R. West, and C. H. Howard, to recover a strip of land 90 feet wide off of and across the north end of a tract of 39.304 acres out of the James Strange survey in Harris county, allotted to the children of Mary Hargraye (hereinafter called the Hargrave tract), by the district court of Harris county, on January 22, 1894, in cause No. 14,271, entitled Geo. H. Hermann v. W. T. Payne et al. (hereinafter called the Hermann-Payne partition suit).

Plaintiffs alleged that there was, after said Hermann-Payne partition suit, a partition among the owners of said Hargrave tract, in cause No. 34,907, in the district court of Harris county, entitled Mary Elzina West et al. v. Brack Hargrave (hereinafter called West-Hargrave partition suit), and that thereunder, by one Ehrhardt, as surveyor appointed by the court, a purported subdivision of said tract had been made, supposed to cover all of it, and that said 90-foot strip comprised parts of certain lots of such subdivision, to wit, lots 1 and 5 in block 1, and lot 1 in block 2, owned by plaintiff Rosenthal, and lot 3 in block 1, owned by Susan West, and lot 4 in block 1, owned by Rannie Mooney, and lot 6 in block 1, owned by Edgar W. Hargrave and William Sporn, and lot 6 in block 2, owned by Edgar W. Hargrave, and lot 7 in block 1, and lot 7 in block 2, owned by Brack Har-grave, and lot 2 in block 2, owned by Urilder, Nobles, and Wilson Hargrave, but that if mistaken in the averment that said lots were in said 90-foot strip, nevertheless plaintiffs were the owners in fee simple of the 90-foot strip, and of said subdivisional lots, both of which were a part of said Hargrave tract. Plaintiffs further alleged that plaintiffs (except Edgar W. Hargrave and William Sporn, as to the lot 6 in block 1) had pooled their interests in said Hargrave tract for oil purposes, and had executed to the plaintiff Morris Rosenthal an oil lease thereof, with pow-er to sublease, reserving a tenth of the oil as royalty; and that said Rosenthal, in the exercise of his power of subleasing, executed to defendant Sun Company on January 23, 1908, an oil lease on said lots 1, 3, 4, 5, and 7 in block 1, and said lots 1, 2, and 7 in block 2 of said Hargraves subdivision, reserving one-sixth of the oil product as royalty. It was alleged that E. W. Hargrave and William Sporn, as to said lot 6 in block 1, executed an oil lease thereof to Oran West, with power to sublease and assign, reserving an eighth part of the oil as royalty, and that afterwards Oran West assigned and sublet the same to W. S. Farish, reserving a sixth royalty of the oil produced, and that subsequently, on January 20, 1910, said Farish duly assigned all his rights to the oil that had been or might thereafter be produced or taken from said lot 6 in block 1, under such lease, to plaintiff Morris Rosenthal. Plaintiffs further alleged that the defendant the Sun Company, aided and assisted by its codefendants, had extracted from said 90-foot strip, and from the north 90- feet of said subdivisional lot 6 in block 1, to wit, 240,000 barrels of oil, of the reasonable market value of $192,000, all of which it had wrongfully appropriated and converted to its own use, and had also extracted from the north 90 feet of said lots 1, 3, 4, 5, and 7 in block 1, and 'said lots 1, 2, and 7 in block 2, of said Hargrave subdivision, to wit, 210,000 barrels of oil, of the reasonable and market value of 80 cents per barrel, fqr one-sixth of which it became and was accountable to plaintiff Morris Ros-enthal, for the use of himself and coplain-tiffs, but that it had wrongfully appropriated and converted same to its sole and exclusive use and benefit, including plaintiffs’ one-sixth royalty, of the reasonable and market value of $28,000, for which it has refused to account to plaintiffs, notwithstanding due demand, basing its refusal upon the adverse claim that the wells from which such oils were produced are not on said lots covered by said lease to it. Plaintiffs further alleged that under their pooling agreement they had apportioned and assigned among themselves their interest in the recovery, so that the recovery by any would be for the benefit of all, without issue between them, and recovery by all for the benefit of each, likewise without issue between them. Plaintiffs prayed for the title and possession of said 90-foot strip, and for their damages for the oil taken out by defendants without right, and for recovery of their royalties on the oil taken out under said lease to defendant, and for costs and general relief.

The answer of the defendant Sun Company, so far as necessary to notice, set up, in connection with the plea of not guilty and general denial, as follows: (1) That plaintiffs’ action was barred by two years’ limitation for oil taken out prior to July 28, 1911, the date of the filing of the plaintiffs’ second amended original petition, upon which the trial was had. (2) That the lease to it from Morris Rosenthal was delivered and accepted as alleged by plaintiffs, but that the 90-foot strip was cut off of and across the south end of a tract of 39% acres allotted to J. D. Bourgeois in said Hermann-Payne partition suit, and that it had an oil lease thereon from the owners, W. H. Bailey, J. R. West, Geo. L. Glass and Eugene W. Booth, to whom it had paid the royalties, both before and since the instant suit, and they were impleaded for recovery over 'by cross-action, if it was east. (3) That whether the true division line placed the 90-foot strip in the J. D. Bourgeois or in the Har-grave tract, the respective owners had agreed upon a boundary line between said tracts, so as to place said 90-foot strip in the J. D. Bourgeois. (4) That plaintiffs were estopped to claim the 90-foot strip to be a part of the Hargrave tract, for the reason that they, or those under whom they claim, had by said Ehrhardt plot of the Hargrave, and deeds and releases adopting and recognizing it, or by pointing out the line on the ground, or by other acts or statements, represented the dividing line to be where it, the Sun Company, claims it to be, that is, so as to put the strip in question in the J. D. .Bourgeois tract, south of the wells in dispute, and that on the faith of such representations it had been reasonably misled into changing its position for the worse at great outlay, by drilling wells and paying over royalties to claimants of the J. D. Bourgeois tract.

The impleaded defendant, J. R. West, died pending the suit, and on petition by plaintiffs, his heirs and representatives were brought in, to wit, his administratrix, Isabella West, and his minor children, Emmett, James R., and Sam West, and Edna Wilson, an adopted daughter.

The impleaded cross-defendants, including the heirs and representatives of J. R. West, deceased, the minors, by their regularly appointed guardian ad litem, S. H. Brashear, duly answered practically to the same effect as the defendant the Sun Company.

The plaintiffs, under leave of the court, filed a supplemental petition in reply, in which they, after interposing a general denial to the averments of the answers, alleged:

“That in the alleged Hermann-Payne partition suit, under which both sides claim, the surveyor merely ran the outer lines of the alleged Strange survey, and meandered the San Jacinto river, then located the M. Bourgeois, the M. Boudreau, the J. D. Bourgeois, and Mary Hargrave tracts in their order, by course and distance, tying each to the other without running the lines on the ground, and conforming the location of the Dunman 150-acre tract called for to such course and distance; and, by locating said tracts in the-manner and by the course and distance as done by said surveyor, the true boundary line between the J. D. Bourgeois and Hargrave tracts is north of the wells in question, where the plaintiffs claim it to be.

“That there never was any agreement between the respective owners of said J. D. Bourgeois and Mary Hargrave tracts, as held under said Hermann-Payne partition suit, fixing the boundary line between them at any point different from the true boundary line as above stated.

“That, as concerns the claim by defendants of estoppel based on acts or conduct of plaintiffs, or those under whom they hold, arising from instruments placed of record, or from pointing out of the dividing line, the only color therefor comes from a plat and subdivision of the Hargrave tract made by the surveyor Ehrhardt, who was appointed by the court in the alleged West-Hargrave partition suit to partition the whole of such tract, which subdivision the defendants claim puts the boundary line between the J. D. Bourgeois and Hargrave tracts south of the wells in question. But, in this connection, the facts are that the Hargrave heirs never authorized said surveyor to subdivide less than the whole of said tract, or to place said dividing line at other than its true boundary, and they were unaware that he had done so, if he had, until about or after the commencement of this suit; that the defendants, and each of them, had equal means and opportunity of knowing the true boundary line between said tracts, and the acts and conduct of plaintiffs, and those under whom they claim, in respect to such subdivision and plat, or any recognition of same, would not have been taken by a reasonable person situated as were the defendants, or any of them, that the true boundary between such tracts was, or was recognized by plaintiffs as, south of said wells, or that plaintiffs, or those under whom they hold would set up no claim to the Hargrave tract as north of such line, and plaintiffs, and those under whom they hold and claim, had no reasonable grounds to anticipate that one in the situation of the defendants, or any of them, would, on the faith of such acts or conduct on the part of plaintiffs or those under whom they claim, treat the true boundary line as south of the wells in question, and on that assumption change their position to their pecuniary harm or prejudicially, as claimed, without taking proper steps to ascertain the true whereabouts of such boundary for themselves.

“That, as concerns the claim that plaintiff's were estopped by standing by in silence while the wells were being drilled and the royalties paid over, the facts are that plaintiffs were unaware, during such time, that the boundary line, which it is claimed was being acted on, was not the true one, and further during all such time, the defendants, and particularly the Sun Company, had equal and superior means and opportunity to ascertain the true boundary line.

“That, in point of fact, the defendant the Sun Company, in drilling the wells and paying over the royalties, acted on its own independent judgment, and not on account of anything said or done, or fraudulently concealed by the plaintiffs, or those under whom they hold, or any of them.

“That if the plaintiffs, and those under whom they claim, have, by acts or conduct, recognized a line south of said wells as being the true line, or if there-was any such subdivision or plat, such was by mistake, and arose out of the error of uniting the Har-grave tract on the south with the Steele tract, which by mistake and error stopped 90 feet short; but, as concerns any agreement or estoppel between the owners of the Hargrave and Steele tracts, giving the Har-grave tract more than it is entitled to by 90 feet on its south, the owners or claimants of the J. D. Bourgeois were not parties .thereto, nor are they in privity therewith, and such are not binding for or against them, and cannot affect the location of the true boundary on the north between the Hargrave and J. D. Bourgeois tracts, whatever gain might thereby go to the Hargrave.”

The defendant Sun Company filed a first supplemental answer in rejoinder, practically reiterating the averments of its defenses as above set out.

A trial by a jury resulted in a verdict and judgment for the defendant, 'against which plaintiffs duly filed their motion for new trial, presenting the points of error herein relied on, which motion was overruled, and thereupon plaintiffs duly perfected their appeal by notice and bond, as required, and regularly assigned errors.

By a decree entered in the district court of Harris county January 22, 1894, confirming a report of commissioners, a large body of land was partitioned among a number of claimants. This dispute arises as to the boundary of two of the parcels set apart-in severalty in the decree, and therefore, while brought in form of trespass to try title, in fact involves the true location of the boundary line between the J. D. Bourgeois subdivision and that set apart by the partition decree to the children of Mary Hargrave.

The said partition suit (Hermann-Payne) by which the court allotted to the parties thereto parts of the James Strange and J. B. Jones surveys and the J. Dunman labor is the common source of title. The three surveys are bounded on the north by the San Jacinto river; the J. Dunman labor lies west of the James Strange and east of the part of the Strange there partitioned. Out of that survey is a tract of 432 acres, extending'the surveys full length to the river on the north, and known as the Wilson 432-acre tract. The decree of partition reads:

“On this 22d day of January, 1894, came on to be heard the report of commissioners, * * * which said report, field notes and map, are as follows: Now comes T. W. Archer and P. S. Humble, two of the commissioners, * * * ■ and having had said lands surveyed and platted by J. J: Gillespie, * * * have made and do make this, our report: We have allotted and set apart to W. T. Payne 152.91 acres, with improvements thereon. * * * We attach field notes and metes and bounds of each part allotted to each party in said cause, also a map showing a plat of all said lands, and the parts set apart to each.

“Field notes of a survey of 108.614 acres of land made for M. Bourgeois off the north end of the Strange survey: Beginning at the northeast corner of the J. Dunman labor on the south bank of the San Jacinto river, the same being the northwest corner of this survey; thence south 751.5 varas to corner; thence west 673 varas to corner on the west line of the Wilson 483-acre tract; thence north 269.3 varas to the San Jacinto river; thence up said river with its meanders to the place of beginning.

“Field notes of 23.07 acres made for the heirs of M. Boudreau out of the Strange survey, south of and adjoining 108.614 acres made for M. Bourgeois: Beginning at said Bourgeois’ southwest corner; thence south 191 varas to corner; thence east 673 varas to corner; thence north 191 varas to M. Boudgrois southeast corner; thence west 673 varas to the place of beginning.

“Field notes of a survey of 39.304 acres made for J. D. Bourgeois out of the Strange survey, south of and adjoining the 23.07 acres made for the heirs of M. Boudreau: Beginning at the southwest corner of a survey of 23.07 acres made for Boudreau; thence south 329.6 varas; thence east 673 varas; thence north 329.6 varas; thence west 673 varas to the place of beginning.

“Field notes of a survey of 39.304 acres of land made for the children of Mary Har-grave out of the Strange survey, south of and adjoining the J. D. Bourgeois 39.304 acres: Beginning at the southwest corner of J. D. Bourgeois 39.304-acre tract; thence south 632.7 varas; thence east 209 varas to the west line of the Dunman 150 acres; thence north 439.7 varas to the northwest corner of said 150-acre tract; thence east 464 varas; thence north 193 varas; thence west 673 varas to the place of beginning.

“Field notes of a survey of 39.304 acres out of the Strange and Dunman labor surveys made for (Mary Steele et al.) south of and adjoining a survey of 39.304 acres made for Mary Hargrave et al.: Beginning at southeast corner; thence south 567.2 varas to W. T. Payne’s northeast corner; thence west 391.2 varas along said Payne’s north line to corner; thence north 567.2 varas ; thence east 391.2 varas to the place of beginning.

“Field notes of a survey of 151.91 acres of land made for W. T. Payne out of .the J. Strange, J. B. Jones surveys, and the J. Dun-man labor: Beginning at a stake at the tram on the west line of the J. Dunman 150-acre survey 1,110 varas north of its southwest corner and 255 varas north and 209 varas east of the J. Dunman labor southeast corner ; thence east 1,266 varas to the west line of the Holmes 50-acre tract; thence south 682 varas; thence east 1,266 varas to stake; thence north 682 varas to the place of beginning.”

J. W. Gillespie testified as follows of the way the field notes and map adopted were arrived at: “J. J. Gillespie was my father. I assisted him in making the surveys. We went upon the ground; first we run the east line of the Strange, which was the east line of the Wilson, and then the east line of the balance of the Strange which was the west line of the Wilson 480 acres. We extended it then from the south line of the Strange to the river, the north line of the Strange. 1 could not tell now just exactly what we took up next after we run that line. The only one of the tracts in the report of the commissioners that we surveyed and actually located on the ground was the Payne; and in fixing this northeast corner of the Payne we began by measuring 1,110 varas from the southwest corner of the Dunman 150 as pointed out to us by an old settler by the name of Joe Dunman. I saw that the northeast corner was 1,110 varas north of the southeast corner of the Dunman 150 and 255 varas north and 209 varas east of the southeast corner Dunman labor. We then tied to these two surveys. We then surveyed the Payne tract and fixed the four corners. (Note from this description it appears there are two ‘east’ calls and no ‘west.’) I began at the northeast corner of the Strange and ran down 5,645 varas to southeast corner. I meandered some of the San Jacinto river, meandered across the Wilson tract, but just how much I do not now remember. X knew or thought I knew where the southwest corner of the Dunman labor was, and from that I located the intervening surveys between the Payne tract and the San Jacinto river. The call was 2,727 varas from the Dunman •corner to the river, and I knew that the north line of the Payne was 255 varas north of the south line of the Dunman, so had the difference to work on in reaching the river from the Payne. In making the field notes I think we began both ways, i. e., at the river and going south to the Payne, and at the Payne and north to the river. The notes will show the way it was done, and they will show the way they were made. There are not any of those blazed trees there now that are called for in the patent for corners of either the Strange or Dunman. It’s hard to tell what is understood by a call for the bank of the river. In this case we intended that corner to be 2,727 varas north of the south line of the Dunman labor. I did not intend to start at any point different from the northeast corner of the Dunman and the northeast corner of the Strange, which I was ordered by the court to survey. The Payne tract cuts off a portion of the south of the Dunman labor, 255 varas north and south. If you subtract that from the 2,727 varas, you will have 2,472 left of the east line of the Dunman labor; add 567.2 varas for the Steele, 632.7 varas for the Mary Har-grave, 329.6 varas for the J. D. Bourgeois, the 191 varas for the M. Boudreau, and the 751.5 varas for the M. Bourgeois; they exactly correspond with the land I had left after I fixed the Payne. I intended to slice that land between the Payne and the river by a line running east and west and give those distances to each tract, just as I would a cake. If I take the Payne tract as a basis and give the Steele tract the distance shown in my plat and field notes and likewise the other surveys named to the river north, then the 90-foot strip will not be on the Hargrave. The northeast corner is a good high bank— clay — and has not varied for many years. I went to that corner when I made the partition. I know the 90-foot strip. If you take the measurements on the east side from this high bank corner, and give each tract its quantity called for on the map and in the field notes filed, the 90-foot strip will be on the Hargrave tract; and then if you run on around and north up the east line of the Dunman and the west line of the tracts in controversy, and give each tract its west line measurement according to the field notes of the partition decree, you would stop about 350 to 400 feet south of the water in the river.”

Appellants’ first assignment of error raises the point that as a matter of law the court should have instructed a verdict for the plaintiffs, first, because “the undisputed evidence showed that by properly locating the M. Bourgeois, by its calls .in the Hermann-Payne partition suit, and tying thereto in their order by course and distance the Boud-reau, the J. D. Bourgeois, and the Hargrave tracts, as required to be done, the 90-foot strip would be in the Hargrave tract.”

Of course, if the calls in the partition decree, supported by the map which is expressly made a part thereof, give rise to no ambiguity, extrinsic evidence cannot be resorted to to show that the survey occupied some other position. Warren v. Sapp, 97 S. W. 125; Johnson v. Archibald, 78 Tex. 96, 14 S. W. 266, 22 Am. St. Rep. 27.

It is admitted that if the land be platted to the south, beginning with what plaintiffs claim was a fixed northeast corner of the M. Bourgeois 108-acre tract, the 90-foot strip would be where appellants claim it to be; if it should be platted to the north, with the Payne north line as a base, the 90-foot strip would be where appellees claim it to be. The question under the above assignment then is: Was there any inconsistency or ambiguity, such as under the law would require the cause to be submitted to the jury? The partition was the act of the court through the commission appointed. It is undisputed that the map and field notes when sought to be applied to the land as it actually measures out would not fit it. There was-nothing said in the report about marked-lines, but simply described the several subdivisions by metes and bounds after naming, a beginning corner, to wit,' the Dunman northeast corner, without locating it by any natural or artificial object except to say “on the- bank of the San Jacinto river.” The field notes would indicate that the several subdivisions as reported by the commission began at the M. Bourgeois 108-aere tract on the river and each in their order tacked to it, but the surveyor who was on the ground and who made the field notes testified, without objection, that he did not survey any of the subdivisions but did run some of the lines, of adjoining surveys as above noted; that he first located the Payne tract, and then calculated the distance between that and the Dunman corner, and in making the field notes intended to cut the space up between the Payne north to the river like he would a cake, giving so many varas north and south to the Steele, the Hargrave, the Bourgeois, the Boudreau, and the M. Bourgeois. The calculations and field notes were made in the office, all based upon the Payne tract.

The evidence further shows that the field notes without the plat (the plat or map was a part of the decree of the court and expressly mentioned therein as a part [Lyon v. Waggoner, 37 Tex. Civ. App. 205, 83 S. W. 46]) will not cover the ground intended to be partitioned by the court — a 90-foot strip unassigned — and if we measure from named corners either the northwest or northeast corner of the M. Bourgeois 108 on the river and then give each subdivision its number of varas south until we take up the space called for, there is left a 90-foot strip north of the-Steele, or else its calls for distance must give way and the Steele tract take to the-Payne, thus giving it more land than was intended it should have and the tract of 108-' acres on the river less. On the other hand, if we begin with the surveyor and lay out the Payne tract on the ground and give each tract its measurement north and wind up at the river, as the surveyor says he did in figuring the tracts in making his field notes in the office, then each gets approximately the amount the commissioners reported to’ the court each should have, and there would be no land unpartitioned.

It will further be noted that the beginning corner of the 108-acre tract was not located on the ground, but was located at the northwest corner of the Dunman, and the measurements for each subdivision were calculated from the southeast corner of the Dunman. If we had no evidence as to how these descriptions were arrived at, then we would, under the rules applicable, begin at the San Jacinto river and come south in locating the lines, because the field notes call for them that way; but since the field notes in the decree of partition do not cover all the ground, and they were all made at the same time by the same surveyor, and that which is called the beginning subdivision is of no more importance by reason of its position in the report of the commissioners as adopted by the court than any other, for the same reason that that which is designated as the beginning corner of a survey is not usually of any more importance in determining the location of a survey than any other corner in such survey, so we conclude that the laying out and platting of lands into subdivisions is one piece of work, and if there is uncertainty as to the location, the jury must pass upon the matter. State v. Sulflow, 128 S. W. 653; Dyon v. Waggoner, 37 Tex. Civ. App. 205, 83 S. W. 46. So we conclude that the trial court did not err in submitting the question to the jury.

The second assignment of error groups the fifth, sixth, and eighth as raising the same question, viz,: Did the court err in submitting the case under the following .paragraphs of its charge: “(6) On the other hand, if you do not believe from a preponderance of the evidence that the said boundary line, as fixed in the Hermann-Payne partition suit, was north of the wells in question, as claimed by the plaintiffs; or if you believe the commissioners did not mean to put the boundary line north of the wells in question — then in either event named in this paragraph you will find for the defendants. (7) If you believe from the evidence that the northwest corner of the M. Bourgeois, as called for in the Hermann-Payne partition suit, cannot be ascertained with accuracy, but that its northeast corner can be, and that by reversing from that point the calls of such field notes for such tract, and then tying thereto in their order by course and distance the Boudreau, the J. D. Bourgeois, and the Har-grave tracts, the 90-foot strip in dispute will be in the Hargrave, and you believe that such, result conforms to what was done and intended by the surveyor in the Hermann-Payne partition suit, then such 90-foot strip must be taken by you as placed in the Har-grave by the Hermann-Payne partition suit, otherwise not.” Because the submission of the meaning or intent of the partition surveyor or commissioners, as done, was erroneous as applied to the facts of this case.

Having determined that from a proper construction or interpretation of the facts of this case they show such an ambiguity as required the trial court to submit the case to the jury, then, to determine whether the charge of the court complained of was error, it becomes necessary to determine what issues involved were necessary to be passed on in order that the court might render a proper judgment.

As was said in Barnett v. Mahon, 31 S. W. 329: “The partition being the act of the court, the intention of the court is what is to govern.” The decree consists of the approval or adoption of the report of the commissioners. This report was accompanied by an attached plat and field notes. The division intended then is that portrayed in the plat and field notes. The plat expressly made a part of the report of the commissioners, and also adopted by and made a part of the decree of the court. Since the plat covers all the ground intended to be partitioned, and the field notes as they appear in the report do not cover all the ground, the material matter of inquiry was what was the intent of the commissioners in their report, and the court’s intention in its adoption by decree? So the question was whether the commissioners began at the south and platted to the north, thus fixing the line between the Hargrave and the J. D. Bourgeois, where the appellees contend it is, or whether they began at the north and coming south fixed or intended that the line in question should be fixed where appellants claim it is; and, besides, the line in question was not run, and the jury must necessarily find where it was intended to be.

What we have said above disposes of the third and fourth assignments; they having raised virtually the same questions.

The sixth and seventh assignments charge that the trial court erred by its general charge in submitting to the jury as one of fact the question of agreed boundary and estoppel instead of determining the issue as one of law against the defendant.

There was ample evidence to raise the question of agreed boundary, and the court should have submitted the question, as he did, to the jury; ibut if we are in error in this, there being two grounds upon which defendants could recover upon a finding by a jury in their favor, and not knowing whether the first was controlling, we would not set the judgment aside.

The other assignments are to the question of oil taken from the 90-foot strip and not necessary to decide.

Affirmed.


author: KEY, C. J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. BROWN.
    (Court of Civil Appeals of Texas. Austin.
    April 2, 1913.)
    1. Oabbiers (§ 383) — Passenger’s Action for Injuries — Sufficiency of Evidence-Question for Jury.
    • In an action for the death of a person thrown off a railroad train by a porter, evidence held sufficient to make a question for the jury as to whether deceased was á passenger or a trespasser.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1492-1493; Dec. Dig. § 383.]
    2. Carriers (§ 239) — Carriage of Passengers — 1 ‘Passenger’ ’ — ‘ ‘Trespasser.”
    A person who boarded a train, intending to pay his fare when demanded by the person entitled to receive it, and who would have paid it upon such demand to the conductor, was a “passenger,” and not a “trespasser,” although he had already delivered a sum equivalent to his fare .to the porter, who had no authority to •collect fares.
    [Ed. Note. — For other cases, see Carriers, •Cent. Dig. §§ 974, 975; Dec. Dig. § 239.

    For other definitions, see Words and Phrases, vol. 6, pp. 5218-5227; vol. 8, pp. 7748, 7094.]
    Appeal from District Court, Falls County; Richard I. Munroe, Judge.
    Action by Mark Brown against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Reformed and affirmed on condition that plaintiff file remittitur.
    Spivey & Carter, of Marlin, for appellant. Nat. Llewellyn, of Marlin, for appellee.

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

   KEY, C. J.

This is the second appeal in this case (Railway v. Brown, 135 S. W. 1076), and reference is here made to our former opinion for a full statement of the nature of .the case. The former judgment was reversed on account of an error in the court’s charge, and in the refusal of a requested in.struction. At the last 'trial the case was properly tried, and a verdict and judgment were rendered for the plaintiff for $2,000, to reverse which this appeal is prosecuted.

But two assignments are presented in appellant’s brief, and these are, first, that the evidence was not sufficient to authorize the court to submit to the jury whether or not the deceased was a passenger on appellant’s train at the time he received the injuries which resulted in his death; and, second, that the verdict is excessive.

As to the first question, the testimony is substantially the same as it was on the former trial, and as stated in our former ■opinion, and we held that it was sufficient to require the court to submit the case to the .jury. It is true that, in ordet for the plaintiff to recover, it was necessary to prove that the deceased was a passenger .on appellant’s train, and that he was pushed off of it by the porter, as alleged by the plaintiff. It is not denied in this court that there was sufficient evidence to warrant a finding that the porter pushed the deceased off the train while it was running, and that his death resulted from that wrongful act; but the contention is that the evidence fails to show that the deceased was a passenger. The proof indicates that the deceased boarded the train without a ticket for the purpose of going from Brueeville to Lorena, a distance of five or six miles, and that he had in his pocket more than enough money to pay his fare. The plaintiff also submitted testimony to the effect that, soon after the train left Lorena, the deceased was found lying across the track in a semiconscious condition.

John Bolden testified as follows: “I remember the occasion of Spencer Brown being hurt on the railroad at Lorena. No. 4 came up. I do not remember the date; it has been so long, but I know it was in the evening about dusk. No. 4 ran in and I was there at the depot, and after it left some one says, ‘There is a man- lying across the track back there.’ And then some of us rushed back to see what it was, and found this boy. I did not know him. We made arrangements to take him over and put him in a house. After we got there, we never could get anything out of him though. He was unconscious. He would wake up, it seemed like, when we would say something to him. We never could get him to- talk, except he seemed to have money on his mind, and every now and then he would say, T had money; I paid my way,’ and he would go back unconscious. That is all we could get out of him. He was kept there all night and taken to Waco next morning. That is all 11 know about it. I know now who the boy was; I just know he was a Brown; I never did-' pay much attention to his name. I disremember what the boy’s name was. Yes, sir; he made that assertion several times that he had money and paid his way; and we would ask him who he was and where he was from, none of us knew him, and it seemed like he would sink back unconscious.”

Dr. Gordon, who went immediately to see the deceased and testified as to the nature of his injuries, also stated: “When I got to him he was in an unconscious condition and suffering from a considerable shock. 1-Ie did not make any direct statement to me, but I heard him saying something while I was attending to him about being on the train and they shoved him off; he was in a semiconscious condition.”

Claude Elliott testified that as the train approached Lorena he went into the negro coach, saw the porter and another man standing on the front platform of that coach, and he stated, in effect, that the porter pushed the other man off the train.

Counsel for appellant contend that the mere statement of the deceased to the effect that he had money and had paid his way was not sufficient evidence tending to show that he was a passenger to authorize the submission of that issue to the jury. The argument seems to be that the statement referred to fails to show that he paid his fare to the conductor, the only person on the train who was authorized to receive it, and that it also fails to show that he boarded the train in good faith, intending to pay his fare. We are unable to agree with either of these contentions. If it be true, as contended, that he had not paid his fare unless he handed the money to the conductor, then it seems to us that the general statement that he had paid his fare embraced by implication the statement that the money was delivered to the person authorized to receive it, otherwise it would not constitute a payment of his fare. It is true that upon the last trial the witness said that he stated that he had paid his way, but we fail to see any substantial difference between that and the statement that he had paid his fare.

Furthermore, whether the deceased meant by the statement referred to that he had delivered the money to the conductor or to the porter, it seems clear to us that it tended strongly to show that he boarded the train intending to pay his fare when demanded by the person entitled to receive it, and that he would have paid it upon such demand to the conductor, although he may have already delivered to the porter a sum of money equivalent to the fare; and, if such were the conditions at the time of his injury, then he was not a trespasser but a passenger. I-Ience we conclude that the first assignment is without merit, and must be overruled.

We sustain the second assignment, and hold that the verdict is excessive to the extent of $750. If the appellee remits that sum by April 16, 1913, the judgment will be reformed and affirmed; otherwise the case will be reversed and remanded.

RICE, X, being disqualified, did not sit in this case.

       Remittitur filed April 9, 1913, and judgment reformed and affirmed. Costs of the appeal taxed against appellee.


author: HENDRICKS, J.

text:
    HART, Justice of the Peace, v. WILSON.
    (Court of Civil Appeals of Texas. Amarillo.
    March 29, 1913.
    On Motion for Rehearing, April 26, 1913.)
    1.Mandamus (§ 10) — Ineffectuality of Writ — Appea:o-!3ecurity fob Costs.
    Under Rev. Civ. St. 1911, art. 2394, relative to appeals from justice court, which provides that where the appellant is unable to pay the costs of appeal or give security therefor he may nevertheless prosecute his appeal but shall be required to make strict proof of his inability to pay the costs or any part thereof, that such proof shall be made before the county judge or court trying the case and shall consist of the affidavit of the party stating his inability to pay the costs which may be contested by any officer of the court or party to the suit, whereupon the court or justice of the peace shall hear the evidence and determine the right of the party to his appeal, a justice of the peace, who upon a contest set aside an affidavit in lieu of a cost bond, could not be compelled by mandamus to send up the transcript in order that the appellant might perfect his appeal, where the record showed the ability of appellant to pay the costs or at least a part thereof.
    [Ed. Note. — For other cases, see Mandamus. Cent. Dig. § 37; Dec. Dig. § 10.]
    2. Mandamus (§ 68) — Necessity of Oleas Legal Right.
    An officer cannot be compelled by mandamus to perform an act unless it is one that is imperatively required of him by law to perform.
    [Ed. Note. — For other cases, see Mandamus, Dee. Dig. § 68.]
    3. Justices of the Peace (§ 159) — Appea:o-Security for Costs — Appeals in Forma Pauperis.
    Under Rev. Civ. St. 1911, art. 2394, relative to appeals from justice court, which provides that an appellant who is unable to pay the costs of appeal or give security therefor may nevertheless prosecute his appeal by making strict proof of his inability to pay the costs or any part thereof, an appellant, who with his wife owned as community property two cows and a yearling heifer which were not shown to have been the proceeds of a homestead or to be milch cows or cows intended to be used as milch cows and which were worth $105, was not entitled to appeal without giving security for costs.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 544, 550-578; Dec. Dig. § 159.]
    4. Courts (§ 207) — Appeal — Sending up Transcript — Mandamus.
    A county court has jurisdiction to compel a justice of the peace by mandamus to send up a transcript in order that an appellant may perfect his appeal; such jurisdiction being necessary to the enforcement of that court’s jurisdiction.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 762; Dec. Dig. § 207.]
    On Motion for Rehearing.
    5. Mandamus (§ 187) — Appeal—Reversal-Subsequent Proceedings.
    In a mandamus proceeding in the county court to compel a justice of the peace to send up a transcript in order that an appellant might perfect his appeal, on reversal of the judgment granting the writ on the ground that appellant had not shown that the justice of the peace erred in refusing to permit him to appeal without giving a cost bond, the cause would be remanded to the county court, which could retry it upon such pleadings and testimony as would meet the issues involved and not to the justice court.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 427-437; Dec. Dig. § 187; Appeal and Error, Cent. Dig. § 570'.]
    6. Mandamus (§ 187) — Appeal — Fundamental Error.
    Where the ^petition for a writ of mandamus to compel a justice of the peace to set up a transcript in order that an appeal to the county court might be perfected alleged the filing of a pauper’s affidavit in lieu of a cost bond, but did not attack the subsequent action of the justice of the peace in setting aside such affidavit on the hearing of a contest, and the evidence failed to show that the justice erred in setting it aside, the granting of the writ was a fundamental error apparent upon the face of the record.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 427-437; Dec. Dig.' § 187 ;* Appeal and Error, Cent. Dig. § 570.]
    Appeal from Wilbarger County Court; R. S. Houssels, Judge.
    Mandamus by W. N. Wilson against P. D. Hart, Justice of the Peace. From the judgment, defendant appeals.
    Reversed and remanded.
    Berry & Stokes, of Vernon, for appellant. Storey & Warlick, of Vernon, for appellee.

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

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

   HENDRICKS, J.

This action is one of mandamus, instituted in the county court of Wilbarger county, Tex., by appellee, to compel Hart, the justice of the peace, and appellant herein, to “prepare a complete record and transcript of all the proceedings had” in the justice court in the case of Stultz v. Wilson, “in order that a trial de novo may be had in said county court of Wilbarger county”; the record and evidence in this mandamus proceeding showing that, at the trial of the original cause in the justice court, Stultz, the respondent in mandamus, and appellant herein, obtained a judgment against Wilson in the justice court for $129.95 and foreclosure of an attachment lien upon certain horses, the evidence further disclosing that the appellee and relator herein, as the unsuccessful litigant in the justice court proceeding, attempted first to perfect his appeal by giving security for costs, which was unavailing, and, second, within the requisite ten days, in lieu of the appeal bond attempted to comply with the other provisions of the statute, by filing an affidavit in forma pauperis, and making proof of his inability to pay the costs, or any part thereof.

The articles of the statute with reference to appeals by affidavit from a judgment of the justice court are as follows:

“Art. 2394. Where the appellant is unable to pay the costs of appeal, or to give security therefor, he shall nevertheless be entitled to prosecute his appeal; but, in order to do so, he shall be required to make strict proof of his inability to pay the costs, or any part thereof. Such proof shall be made before the county judge of the county where such party resides, or before the court trying the same, at any time within ten days from and after the date of the judgment rendered therein, and shall consist of the affidavit of said party stating his inability to pay the costs; which affidavit may be contested by any officer of the court or party to the suit; whereupon, it shall be the duty of the court trying the case, or the justice of the peace of the precinct in which said case was tried, or the county judge of the county in which the suit is pending, to hear the evidence and to determine the right of the party to his appeal.”

“Art. 2395. When the bond, or the affidavit in lieu thereof, provided for in the two preceding articles, has been filed, and the previous requirements of this chapter have been complied with, the appeal shall be held to be perfected.”

In discussing this matter, it is to be noted that the statute regulating appeals from the justice court, prescribing the affidavit in forma pauperis, is in substance the same and in language in some respects identical, as the statutes prescribing the same affidavits in lieu of an appeal bond in cases of appeal from the district and county courts; and the decisions of the higher courts in construing the latter statutes, on account of the identity of the statutes, would necessarily control the construction of the statute with reference to appeal from justice courts: “The statute defines what the proof it requires shall be, when it provides that it shall consist of the affidavit of said party, stating his inability to pay the costs, and its evident purpose is to enable the appellant to make prima facie proof of his inability to give the required security and to enable those having conflicting interest to controvert such proof.” Smith v. Buffalo Oil Co., 99 Tex. 78, 87 S. W. 659. In the absence of a contest, “the affidavit of the party is sufficient,” without further proof, to make out the prima facie case of inability. Graves v. Horn, 89 Tex. 78, 33 S. W. 322.

The statute with reference to appeal from justice court, where appellant is unable to “pay the costs of appeal, or to give security therefor,” says that, “in order to do so, he shall be required to make strict proof of his inability to pay the costs or any part thereof.” New Revised Statutes, art. 2394. The statutes with reference to appeal from district and county courts uses the identical language quoted, and in passing upon the above language of the statute the Supreme Court said, in the case of Pendley v. Berry, 95 Tex. 74, 65 S. W. 33: “We think the statute means that where the party can pay the costs, or a part thereof, he must do so. This is implied in the rule that unless he can show his inability to pay any part of the costs he cannot appeal upon affidavit alone. Plainly, if this state of facts cannot be shown, the intention is that the party shall do that which he cannot show his inability to do.” (The emphasis is ours.)

All these statutes also use the following language: “Such proof shall * * * consist of the affidavit of said party stating his inability to pay the costs.” And the Supreme Court further, in commenting upon the case of Stewart v. Herdenheimer, says that the case simply held that the words “or any part thereof,” with reference to the inability to pay, does not have to be inserted in the affidavit, and the affidavit without such language is sufficient “when uncontested,” as was previously held in the Graves-Horn Case, supra; ' but when it comes to a contest, the words ,o£ the statute, “he shall be required to make strict proof of his inability to pay the costs, or any part thereof,” is construed by the Supreme Court in the following language: “But the previous part of the statute cannot be wholly rejected (meaning the last quotation from the statute) and its operation is to require that upon contest the facts must show the inability spoken of” — that is the inability to pay a part of the costs — as well as the whole costs, where the inability of the appellant is questioned and contested by the appellee. Pendley v. Berry, supra.

Of course, under the rulings of the Supreme Court, when a contest is filed, the “facts must show the total inability” mentioned in the statute, in order to preserve the right of appeal, or at least, if the record shows the ability to pay the costs or a part thereof, the affidavit is overturned and the right is lost. And in order for the mandamus to lie against the opposite party, who is an officer, “We must see that the act which it is sought to compel him to perform is one that is imperatively required of him by law to perform.” Insurance Society v. Love, 102 Tex. 278, 115 S. W. 26. In this matter the act sought by mandamus to compel respondent to perform is to send up the transcript in order that relator may perfect his appeal, and if the facts do not show a total inability to pay or are suggestive of an ability to pay the costs, or a part thereof, then it is not “imperatively required of him to perform.” Chief Justice Rainey expressed it rather succinctly as to this particular question, in the case of Trapp v. Frizzell, 98 S. W. 947: “The Constitution gives the right to appeal, and the law has provided the mode for so doing. When a party takes an appeal from a judgment against him, and makes affidavit of his inability to give security, as required in article 1401, Rev. St. 1895, and it is then contested, he is then ‘required to make strict proof of his inability to pay the cost of any part thereof.’ If he does this, then the jurisdiction of the appellate court attaches, and the power does not lie with the court or judge before whom such proof is made to deny the right of appeal”—citing Pendley v. Berry, quoted by us, supra, and Murray v. Robuck, 89 S. W. 782, decided by Justice Neill of the Fifth district. In the latter case all the property respondent had was a cow, a calf, a sow, some pigs, a growing crop on 15 acres of rented premises and which the San Antonio court said, in sustaining üie right of appeal and mandamus, “this property was all exempt under the law from execution,” and that is where this case departs from that case.

This record conclusively shows that four horses were conveyed to the relator’s wife, and suggests that it was done in consideration of the relinquishment of her homestead right, transferred previously by husband and wife; and the horses conveyed to her, as indicated in the record, in order that she might hold the property for reinvestment in another home. Relator said, “that the bill of sale was issued to her for the reason that she refused to sign the deed to the home unless this property was placed in her name.” "She wanted it that way so that she could see that it went into another home.” The same were the facts in the case of Blum v. Light, 81 Tex. 420, 16 S. W. 1090, except that the bill of sale in that case is shown to have been a conveyance to the wife of the horses and cattle as her separate property, by the terms of the conveyance. The evidence in this case shows that, a “short time” (but when is not shown) before the filing of the affidavit, the homestead was sold, and considering the statute with reference to exempting the proceeds of the homestead for a period of six months after the sale, and the testimony that the wife signed the deed in consideration of the conveyance to her in order that she could see that the proceeds went into another home, we are not disposed to disregard the court’s findings. But as to the three head of cattle, the two cows and a yearling heifer, which the record conclusively shows was owned by them (presumptively as community property) and not shown to have been the proceeds of the homestead, and uncontradicted that they were worth $105, with no testimony whatever that they were milch cows or that the grown cows had ever been milked and were dry, or were intended to be used as milch cows, we are unable to agree with the court’s finding that they should be eliminated in considering the relator’s ability to pay the costs or any part thereof. In the Pendley-Berry Case, supra, the district judge had found that the appellant had $40 and was able to pay a part of the costs of the appeal, but disregarded it on the contest and sustained the affidavit, and the Supreme Court said: “The decision of the district judge that the appellant was entitled to appeal without paying or depositing the sum named is not conclusive. The statute says, it is true, that the judge hearing the contest shall ‘determine the right of the party to his appeal,’ but this means evidently that he shall determine the facts which are in issue before him on which the right to appeal is made to depend. After ascertaining and stating such facts, he cannot conclude the appellate court by judging that the right to appeal does or does not exist.” The trial court’s finding of fact is just as deficient, when in the face of the record, as a finding of law, and this record is conclusive upon this appeal that the three head of cattle mentioned constitute community property, and the court’s finding is positively inefficient wfien he says they should not be considered in determining the matter of appeal. If the court meant they were exempt as “milch cows,” there was absolutely no proof of the exemption. This court announced the rule in a majority opinion (Chief Justice Graham dissenting) in the case of Patterson v. English, 142 S. W. 18, through' Associate Justice Hall, that where the testimony showed that three heifers in a debtor’s possession intended to be used by him as milch cows, although never having been milked, were exempt—which we think is clearly a correct holding. But this record is devoid of any such testimony, and in the absence of any testimony indicating that they could not be used as available property for the purpose of paying the coste, or at least a part thereof, the relator has fallen far short of the prescription of the law, when, as the Supreme Court says, “upon contest the facts must show the total inability” in order to obtain the right of appeal by affidavit. The order of the justice of the peace, setting aside the affidavit, must stand unless the evidence is suggestive that he deprived relator of the right of appeal. When notified of the pending contest, relator failed to appear and disregarded the hearing. Of course, the right of appeal is a valuable right, and, however much this record might appeal to us otherwise, we are not constrained to disregard the opinions of the higher courts, and what we consider the inevitable logic of the record, and give the right where the measure of the law in unfulfilled.

It is to be observed that relator, in his application for mandamus, in reality does not attach the action of the justice of the peace in setting aside the affidavit. We think it is clearly incumbent upon him to plead and prove that the justice of the peace had not the right to set aside the affidavit in order to show the county court that he was entitled to right of appeal; the opinions of the Supreme Court are to our minds conclusively persuasive of the proposition, and in the event of another hearing, and another appeal, we would suggest that the record be more specific. For example, the notation on the docket of the justice court in regard to the filing of the affidavit, introduced by relator, says:' “Affidavit in lieu of cost bond filed this 7th day of May, A. D. 1912, and proof made of inability to make cost bond or secure same. P. L. Hart, J. P., Preet. No. 7.” If such is the affidavit and the record speaks the truth, the form of the affidavit really controlling under the decisions, oral proof being unnecessary until the contest arises, relator has not complied with the law. It is true the justice of the peace says, “an affidavit in forma pauperis” was presented to him; but, if his docket bespeaks a character of affidavit in forma pauperis, it is not one. The affidavit is not. in the record.

The county court, we think, is entitled to jurisdiction of this mandamus under the Constitution, “as necessary to the enforcement of the jurisdiction of that court” in order to determine the relator’s right to appeal to that jurisdiction, and we do not think the objection that certiorari is an adequate remedy is tenable; if relator is unable to give bond on appeal, he would be unable to do it in a proceeding in certiorari; and, the matters discussed being apparent upon the record going to the very right of the case and the foundation of the cause, it is ordered reversed and remanded.

On Motion for Rehearing.

We note the following language in the argument upon motion for rehearing: “The law says that trials of cases from the justice court to the county court shall be ‘de novo.’ Xet it seems that in this case the higher court has seen fit to send this cause, not back to the court from where it is appealed, which was a court of record, but it has gone further and sent it to the court which is not one of record. * * * In fact, there is no way that we can see thus far to get this case back before the honorable justice of the peace.” This court reversed and remanded this cause to the county court, and the effect of its judgment would, of course, be extended no further. The county court has the jurisdiction to retry this cause upon such appropriate pleadings and testimony as it deems will meet the issues involved, as it is a direct proceeding for mandamus in that court and to that extent is an independent suit to meet the purposes of that proceeding.

The appellee is insistent that fundamental error apparent upon the face of the record does not exist in this cause. In this cause the relator executed a pauper’s affidavit in another proceeding in the justice court, which was set aside by the justice ot the peace upon a contest filed by the opposite litigant in that cause, upon proper notice given to the relator, who was the defendant in the other case. The relator, in his petition for mandamus, in order to obtain the right of appeal, alleged the pauper’s affidavit but did not assail the subsequent action of the justice of the peace in reversing his former action, in setting aside the pauper’s affidavit. This fact was prominent in this record. This latter order of the justice of the peace, standing unassailed by relator in this mandamus proceeding in the county court, we decided then, and reiterate, that it went to the very right of the cause and to the foundation of this proceeding. It is true we inspected the record and discussed the inefficiency of evidence to support a fundamental finding necessary to maintain the judgment of the court; and, the lack of pleading being apparent, it was better to discuss the evidence than leave appellee in the dark; and without a pleading assailing the order of the justice of the peace, with the additional evident circumstances; in the record of an absolute lack of testimony to sustain the judgment of the court, we held that this order of the justice of the peace, not having been shown to have been improper, by either pleading or evidence, and fundamentally controlling the right of appeal, until stricken down, would necessarily stand.

The motion for rehearing is overruled.