Opinion of the Court. custom of all surveyors; and if two such trees, answering the description, were afterwards found in the east line of the survey, properly marked, and situated at about the proper distance from the river San Andres, as called for in the survey, it was for the jury to say, in the light of all the evidence, whether said trees, so marked and so situated, were or were not the trees called for in the field notes; and, if they were, then they were such objects, and such a monument, as would control the call for course and distance. It is every day's experience in land trials, to establish by evidence the identity of both natural and artificial monuments called for in surveys. If the beginning point be at the mouth of a brook, or creek, where it empties into a river, evidence may be given, nay, must generally be given, to establish the identity of the brook; and when once established to the satisfaction of the jury, it has all the effect of any natural or artificial object called for in the survey, and will control courses and distances. In the present case the two hackberry trees relied on by the plaintiff were found in the acknowledged easterly line of the survey, in which they ought to be; (2) the evidence is that they were duly marked and blazed; (3) they were at about the proper distance from the river San Andres and from Cow Creek to correspond with the field notes of the survey, and to make the survey contain the quantity of eleven leagues, although they were nearly 4,000 varas south of the northeast corner of the tract as it would be fixed by giving to the first course of the survey its full length of 22,960 varas. Under these circumstances we think that the court was right in leaving it to the jury to determine whether the two hackberries relied on by the plaintiff were or were not the same which were called for by the survey, and in holding that if they were the same, then, as monuments, they would control the distance assigned by the field notes to the first course. It has been repeatedly held by the Supreme Court of Texas, as a general rule, that natural objects called for in a grant, such as mountains, lakes, rivers, creeks, rocks, and the like, control artificial objects, such as marked lines, trees, stakes, etc., and that the latter control courses and distances. Stafford v. King, 30 Texas, 257, 270; Booth v. Strip Opinion of the Court. pleman, 26 Texas 436, 441; Bolton v. Lann, 16 Texas, 96, 111, 112. There are exceptional cases, however, in which courses and distances may control, as where mistakes have been made by the surveyor as to objects called for, or where the calls for monuments are inconsistent with each other and cannot be reconciled, or where some other clearly sufficient reason exists for disregarding the general rule. Booth v. Upshur, 26 Texas, 71; Booth v. Strippleman, 26 Texas, 441. The request to charge that all rules have for their object the identification of the actual survey made by the surveyor, and that it is an invariable rule that the footsteps of the surveyor must be followed, and that the lines and corners must be located where he established them, was unnecessary, inasmuch as the court did charge substantially to that effect. The court expressly said: "Our purpose and your duty is to follow the tracks of the surveyor, so far as we can discover them on the ground with reasonable certainty, and where he cannot be tracked on the ground, we have to follow the course and distance he gives, so far as not in conflict with the tracks we can find that he made." We do not well see how it could be more plainly stated, that the main object to be reached by the whole inquiry was to ascertain and follow the actual footsteps of the surveyor. The final request was, in substance, a request to charge that if the jury believed from the evidence that the survey was actually made on the ground according to the first and second courses and distances, they must find for the defendant. As there appears to have been no doubt from the evidence that if the lines were so run, the second line, that is, the north or back line, would take in the greater part of the lot claimed by the plaintiff, the request would have been a proper one had it been qualified with the condition that the two hackberry trees were not satisfactorily identified as those called for in the Moreno grant. But without being so qualified the proposed instruction would have had a tendency to withdraw the minds of the jury from the controlling effect which the identification of those trees as the true northeast corner would properly have had on the conclusion to be reached by the jury, as to the question whether Opinion of the Court. the two lines referred to were, or were not, run and measured according to the field notes. For it is perfectly clear that they could not have been so run and measured, if the two hackberry trees mentioned in the field notes were the same as those relied on by the plaintiff. The request, therefore, should have been, that if the jury did not believe the hackberries were the same, then, if they believed that the two lines were run according to the field notes, they must find for the defendant. It still remains to consider the correctness of that part of the charge given which was excepted to by the defendants. The substance and effect of it was, that if the jury were not able to fix the disputed lines, or the disputed portions of the lines, with reasonable certainty, they might locate the back, or northerly line, so as to embrace eleven leagues between it and the river, and between the east and west lines as acknowledged by the parties. This was allowing the jury to make the location of the back line depend on the quantity of the land enclosed, if they could not fix it from the evidence. In this we think there was error in the charge. The whole context immediately connected with the passage excepted to, was in substance this: that if the testimony satisfied the jury that the two hackberries discovered were identical with those called for in the grant, the back, or north, line must start from, or end with, them, running in a course north 70° west, or south 70° east; but that if the testimony did not satisfy them as to the identity of the trees, then they must fix the unmarked or disputed lines so as most nearly to harmonize the calls with the known corners and the undisputed line (that is, the east line). If the jury were not able to fix the disputed lines, or the disputed portions of lines, then they might resort to quantity, that is, locate the back line between the two recognized side lines so as to take in eleven leagues. Now, it seems to us, that the jury should have been told that if the testimony was not sufficient to identify the two hackberries with those called for in the grant, and could not fix the northeast corner nor the back line by any other marks or monuments, then they should fix it by the courses and distances of the first and second lines of the survey, except that the Opinion of the Court. second line should be extended so as to meet the recognized east line as marked and extended beyond the hackberries. This would have been in accordance with the rule, that course controls distance, and that course and distance control quantity, which is correctly laid down in Stafford v. King, 30 Texas, 257, and Welder v. Hunt, 34 Texas, 44. The statement in the first part of the charge, that the jury should follow the tracks of the surveyor, so far as they could be discovered, and when these were not to be found, they should follow the course and distance which he gives, so far as not in conflict with tracks that are found, was correct. Had this proposition been followed in the subsequent part of the charge, it would not have been open to criticism. But when directions were given to the jury in greater detail, they were not referred to the courses and distances given by the surveyor, in case they were unable to identify his tracks (that is, in case the proof relating to the two hackberries was insufficient); but they were told thus: "you will, from the whole proof, so fix the unmarked or disputed lines called for in the grant as in your judgment most nearly harmonizes the calls with the known corners and the undisputed lines;" and if not able to fix these lines in this way, then to resort to the rule of quantity. This was putting the matter as if it depended on the judgment of the jury whether the lines could be run according to the survey; whereas, if not compelled by fixed monuments (such as the plaintiff claimed the hackberry trees to be) to run the second, or back line, in a particular manner, there was nothing in the way, so far as the evidence showed, of running the first and second lines according to the field notes,-only extending the second line so as to meet the east line, the position of which was known. If the northeast corner was not determined by the hackberries, there was nothing to interfere with the location of the Moreno grant in exact accordance with the field notes, except the one thing of extending the second line far enough to meet the conceded location of the eastern boundary. It did not depend on anything requiring the exercise of judgment on the part of the jury; it was a matter of course. If the position of the eastern line had not been discovered at Syllabus. all, and nothing had been known but the beginning corner, the field notes would have furnished the only guide for locating the survey. The position of that line being known, it controlled the survey only in respect to that line, which required the second line to be extended sufficiently to reach it. But if the two hackberry trees, in that line, were also identified as the true northeast corner, then the position of the north line, and the length of the first course, would be controlled by those trees. We think there was error in not putting it to the jury with sufficient distinctness, that the course and distance of the first two lines of the survey must govern, if the evidence was not sufficient to fix the location of the northern line by identifying the two hackberries with those called for in the field notes for the northeast corner of the survey, or by some other marks or monuments. The judgment must be reversed, with directions to grant a new trial. CALIFORNIA ARTIFICIAL STONE PAVING COMPANY v. MOLITOR. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CALIFORNIA. SAME v. SAME. APPEAL FROM THE SAME COURT. Submitted November 25, 1884.-Decided March 2, 1885. A certificate of division of opinion under § 652 Rev. Stat., can be resorted to only when "a question " has occurred on which the judges have differed, and where the point" of disagreement may be distinctly stated. It cannot be resorted to for the purpose of presenting questions of fact, or mixed questions of fact and law, or a difference of opinion on the general case. VOL. CXIII-39 |