Tippett v. Woolley

230 S.W.2d 283, 1949 Tex. App. LEXIS 2242
CourtCourt of Appeals of Texas
DecidedNovember 23, 1949
DocketNo. 4689
StatusPublished
Cited by5 cases

This text of 230 S.W.2d 283 (Tippett v. Woolley) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tippett v. Woolley, 230 S.W.2d 283, 1949 Tex. App. LEXIS 2242 (Tex. Ct. App. 1949).

Opinion

SUTTON, Justice.

This appeal is from the District Court of Crockett County. The suit, brought by Woolley and others, was in form trespass to try title, but the issue was purely one of boundary and involved the location on the ground of Survey 3, Block B in Crockett County, according to the original survey made by J. W. Armstrong, March 6, 1884. The case was tried to a jury and submitted on a single issue, which was: “Do you find from a preponderance of the evidence that Survey No. 3, Block B, is located on the ground as shown on map of John Klotz, being Plaintiffs’ Exhibit ‘O’?” The jury answered “Yes” and judgment was accordingly rendered for the plaintiffs from which the defendant has appealed.

The defendant requested a special instruction, which follows, and objected to the charge of the court because the instruction was not included therein. The instruction requested is as follows, to-wit:

“In answering the Special Issue No. 1, the law requires you to follow the footsteps of the Surveyor as shown by his field Notes; and by ‘following the footsteps of the Surveyor’ is meant finding the position on the ground of the lines and corners of the Survey from the description contained in the Field Notes; and in case any calls in the Field Notes are inconsistent with each other, so that it becomes necessary to determine which of said inconsistent calls are correct, and which are mistaken calls, the law permits a consideration of all facts in evidence showing the circumstances surrounding the surveyor at the time he made the survey and a determination from such surrounding facts together with the Field Notes themselves as to which calls, if any, were made by mistake; and such mistaken calls, if any, are to be disregarded in arriving at the true intention of the Surveyor.
“In Field Notes calling for position of a line or a corner of a survey to be at or near a natural object, or artificial object, or an unmarked line or corner of another survey, or course and distance from such object or line, the law deems a call for a [285]*285natural object, or artificial object found on the ground to be of the highest dignity; and next in the order of dignity is an unmarked line or corner of another Survey; and third in the order of dignity is course and distance, and last is the matter of area of the tract intended to be included in the survey. Any call, however, for any object or corner or line of another survey, if from a preponderance of the evidence such call appears to be a mistaken call, it is to be disregarded.”

The defendant in eight points of error assails the action of the court in refusing the requested instruction and the verdict and judgment of the court, but we deem it unnecessary to set them out in any detail.

Only two witnesses testified, John Klotz, a State Licensed Surveyor, introduced by the plaintiffs, and James K. Avera, a likewise licensed Surveyor, offered by the defendant. There were various documents, numerous field notes and maps and plats introduced in evidence.

The Surveyors adopted different plans for the construction and location on the ground of Survey 3, Block B, which will more fully appear hereafter.

We reproduce below a portion of a working sketch supplied by the Commissioner of the General Land Office and used by each of the Surveyors in their work, which shows the Section involved and the immediate surrounding area.

[286]*286Section 3, Block B, is one of four sections surveyed fcy J. W. Armstrong March 6, 1884. The other three are 1, 2 and 4, as shown on the plat heretofore attached. His purpose was to appropriate the vacant area between the previously surveyed area to the east and that formerly located and embraced in Block 36, H. & T. C. Ry. Co. to the west. Block 36, H. & T. C. to the west consisted of 22 square sections of 640 acres each and approximately the equivalent or 3 or 4 other such sections. Twenty of them were surveyed by M. J. Doyle April 28, 1873, as were 7 surveys in Block 35 to the west, the total number shown on the sketch. The surveys to the east were surveyed by Barton, Bonnell and Thomson and consist of 12,640 acre sections, including Section 1, Block B, surveyed by Armstrong, other than Block 14, University of Texas. It may here be noted that Section 1, Block B by Armstrong has never been corrected but stands as originally surveyed. 2, 3 and 4 were corrected in 1927, as shown on the plat, by Estes.

The surveys in Block 36 H. & T. C. were corrected in May, June and July, 1888, by M. W. Nyland. Nyland went into the area to check, correct and mark on the ground lands previously surveyed. The original field notes by Doyle in Block 36 call for stakes only. The field notes made and filed by Nyland in 1888, contain many bearings and definitely locate the lands on the ground. He reduced the northern boundary of Section 26 from 1900 vrs. to 821 vrs. and the distance between the north line of 26 and the north line of Section 37, Block 31 (River Block) from 2210 vrs. to 1161 vrs. Mr. Avera testified this is a mountainous country and in his opinion it was impossible to have made the survey and placed the stakes in Block 26 as called for in Boyle’s original field notes. He regarded it as an office survey. There could be little doubt, if any, about that. He was likewise of the opinion Armstrong did not survey on the ground the four surveys purporting to have been made by him March 6, 1884.

Armstrong’s original field note calls for his surveys 1, 2, 3, and 4 are in order as follows:

Survey 1, “Beginning at a stake on N. W. Cor. of Sur. No. 3, and 3800 vs. west of N. W. cor. of No. 17 for State University B. Thence South 1900 vs. to a stake for S. W. cor. No. 3.
Thence West 1900 vs. N. W. cor. 2.
Thence North 1900 vs. to a mound on S. W. cor. of Nancy E. Everett Survey.
Thence East 1900 vs. to the place of beginning.”
Survey 2, “Beginning at a stake the N. E. corner of this survey, on E. line of No. 1 of this block, and 789 vs. South of the N. W. cor. of same.
Thence West 895 vs. to a stake for corner.
Thence South 1757 vs. to a stake on S. E. corner of Survey No. 4 of this block.
Thence West 98 vs. to a stake for corner, on south line of same.
Thence South 1672 vs. to a stake for S. E. corner, Sur. No. 3, of this block.
Thence West 1289 vs. to a stake S. W. cor. same.
Thence South 174 vs. to a stake for corner.
Thence East 2282 vs. to a stake for corner.
Thence North 3603 vs. to the place of beginning.”
Survey 3, “Beginning at a stake set 1078 vrs. S. 50 E. from East corner of Sur. No. 26 in Block 36 H&TC Ry. Co. also a N. W. cor. of Survey No. 2 of this block.
Thence East 1289 vs. to a stake an interior cor. of Sur. No. 2 of this block.
Thence North 1672 vs. to a stake on S. line of Sur. No. 4 of this block.
Thence West 2365 vs. to a S. W. cor. of No. 4 stake on S. E. line No. 24, B. 35 H&TC Ry. Co.
Thence S. 40 W. 589 vs. to N. E. Cor. No. 26.
Thence S.

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Bluebook (online)
230 S.W.2d 283, 1949 Tex. App. LEXIS 2242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tippett-v-woolley-texapp-1949.