Duren v. Presberry

25 Tex. 512

• Court: Texas Supreme Court
• Decided: July 1, 1860
• Status: Published

Opinion

Wheeler, C. J.

The question submitted to the court below was as to the true beginning corner of the plaintiffs’ grant. The court appears to have been of opinion and decided accordingly, that the call for the south-west corner of the Brooks Williams league should control the other calls for bearing trees found to correspond with the calls in the grant, and the other evidence showing that the place where these objects were found was, in fact, the beginning point of the survey. In this opinion we cannot concur. We know of no rule for the construction of grants which would give a controlling influence to a call for the corner of a survey over a call, for bearing trees and marked lines, which are found upon the ground to correspond with tlie calls. The corner of a survey, though a good call, and one which may control mere course and distance, is not necessarily a more certain and material, or notorious object, than a marked line or marked trees called for in a grant, and will not necessarily control calls for those objects.

There can be little doubt, we think, from the evidence, that the beginning corner of the survey as actually made was at the point a thousand yards north of the corner of the Brooks Williams league, where the objects called for and the other marked line were found; and that the surveyor was mistaken in supposing that he was at the corner when he was upon the line a thousand yards distant from the corner of the Brooks Williams league. What distinguishes this case from Anderson v. Stamps, 19 Tex. Rep., is that there are calls in the grant which correspond with the objects found upon the ground. The correspondence of the bearing trees with the calls in the grant, and the marked line running to the second corner of the survey render it reasonably certain, we think, that the point where these objects are found is the true beginning corner of the survey, and that the call for the southwest corner of the Brooks Williams league, is a mistake. We are of opinion, therefore, that the court erred in holding that to be the beginning corner, and giving judgment accordingly for the plaintiff. The judgment, we think, should have been for the intervener, and it will be reversed and rendered accordingly.

Reversed and judgment rendered.