Weir v. Van Bibber

34 Tex. 226

• Court: Texas Supreme Court
• Decided: July 1, 1871
• Status: Published

Opinion

Walker, J.

This is an action of trespass to try title. About seventeen hundred and ninety-six acres of land are the subject of controversy.

Van Bibber derives title from the State; his patents were issued in the year 1853.

The plaintiff in error claims title to the land under an older grant, known as the Uranga grant, dated in 1834, and calling for eleven leagues of land, within which leagues it is claimed the lands in controversy are situated.

There is no question about the validity of the Uranga grant, other than that it is claimed that it was so imperfectly described in the calls that it could not he identified.

It is necessary'to the validity of an entry that it should be made with such certainty and precision that the adjacent lands remaining vacant may be located without confusion of the boundaries. (Johnson v. Pannel, 2 Wheaton, 208; Shipp v. Miller, Id., 325; Garnet v. Jenkins, 9 Wheaton, 75; Lewis v. Durst, 10 Texas, 415; Welder v. Carroll, 29 Texas, 317.)

The question of potice was properly submitted to the jury. Whether the boundary lines of' the Uranga grant were so defined as to notify the public of their location was the main question of fact the jury was called on to settle.

It was a question for the court whether lodging the testimonio of the grant in the General Land Office; operated as constructive notice, or not; and whether it should not be recorded in the county where the lands were situated. In Gilbeau v. Mays, et al., it'was held that where there was no record of a prior grant in the " General Land Office, nor in the county where the lands were situated, a subsequent location will hold the land, unless the subsequent locator had notice of a prior appropriation of the land, or the facts were such as should have put a prudent man upon inquiry. ' i

We think the court erred in its conclusions and instructions as to the vagueness, and uncertainty of the evidence. If by meandering the Medio and Blanco creeks, it had been found that the surveyors, Giraud, Cash, Tulley and McKenney, had ascertained the point and the only point at which a line two miles in length would cut the waters of both streams, it should have been left to the jury to determine whether the Uranga grant had been marked by this line. The testimony may be uncertain and doubtful, but we think it should be passed upon by the jury; and the charge of the court, in virtually withdrawing the evidence irom the jury, we can but regard as erroneous.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.