
    MAIN et ux. v. CARTWRIGHT.
    (No. 778.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 17, 1918.
    Rehearing Denied Feb. 14, 1918.)
    1. Boundaries <@=>43 —Judgment—Failuke to Settle Issue of Boundary.
    Judgment in a boundary suit not identifying the grantee or the block in which the land is situated, and leaving the dividing line unsettled, is insufficient to settle the rights of the parties.
    2. Appeal and Error <@=>719(8) — Assignment of Error — Insufficient Judgment.
    Insufficiency in the judgment in a boundary suit, in that it does not settle the issue of boundary, is fundamental error, necessitating reversal, though not assigned.
    3. Public Lands <@=>175(1) — Location by Railroad — Vacant Land — “Titled Land” —“Land Equitably Owned.”
    Where a section of land had not been patented to one railroad when another section overlapping to an extent was located for another railroad, on that date the first section was not “titled land,” and was not “equitably owned” by the first railroad, within Const, art. 14, § 2, providing that all genuine land certificates heretofore or hereafter issued shall be located only upon vacant and unappropriated public domain, and not upon any land titled or equitably owned under color of title from the sovereignty of the state.
    [Ed. Note. — For other definitions, see Words and Phrases, Titled.]
    4. Judgment <@=>712 — Persons Affected — One Not a Party.
    Where a railroad was not a party to the suit in which the state recovered a section of land from another railroad, its title to its own section of land overlapping the other was not affected by the judgment.
    5. Boundaries <@=3(6) — Unmarked Corner or Line as Controlling Courses and Distances.
    An unmarked corner or line is sometimes accorded the dignity of an artificial object, ana permitted to control a course and distance call, but such controlling effect is not always given.
    
      6. Boundaries @=»54(6) — Location by Rail-EOAD — PRESUMPTION AS TO LOCATION OF Lines on Ground ,by Surveyor.
    Where there is nothing to indicate that the surveyor did not actually survey the lines of a section of public lands located by a railroad, and locate the same upon the ground, the presumption obtains that he did so, particularly where he fixed the location of one corner by reference to natural objects.
    7. Public Lands <§=» 175(1) — Locations — Correction of Field Notes — Land Belonging to School Fund.
    Land located by a railroad and recovered by the state and so belonging to the permanent school fund under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5385, was appropriated land, and it was not lawful for the Land Commissioner to correct the field notes thereof to reduce its acreage and take from it land belonging to the fund and in effect give it to another survey owned by an individual.
    Appeal from District Court, Presidio County; Jos. Jones, Judge.
    Suit by T. J. Cartwright against A. B. Main and wife. From a judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    C. E. Mead and H. H. Kilpatrick, both of Marfa, for appellants. Belcher & Sutton, of Marfa, C. C. Belcher, of Del Rio, C. R. Sutton, of Marfa, J. A. Stephens, of Benjamin, and Ocie Speer, of Ft. Worth, for appel-lee.
   HIGGINS, J.

Appellee, Cartwright, brought this suit in the ordinary form of trespass to try title, the premises sued for being described a^ follows:

“Survey No. 529, block 8, Galveston, Harrisburg & San Antonio Railway Company grant in Presidio county, Texas, and described by metes and bounds as follows: ‘Beginning at the N. W. corner of survey No. 528 said block; thence N. 1,900 vrs. to stake and mound; thence E. 1,900 vrs. to stake and mound; thence S. 1,900 vrs. to stake and mound; thence W. 1,900 vrs. to place of beginning.”

Defendants, Main and wife answered by general denial and plea of not guilty. The case was tried before the court upon agreed facts. The trial court adopted the agreed statement as his findings of fact, and the appeal is submitted for review upon such findings. Such findings are as follows:

“(1) It is agreed: That the plaintiff is the owner of survey No. 529, block No. 8, Galveston, Harrisburg & San Antonio Railway Company, grant located in Presidio county, Tex. That said survey was located for the said Galveston, Harrisburg & San Antonio Railway Company on July 7, 1875, by L. E. Edwards, deputy surveyor of El Paso district, and approved by A. H. French, surveyor of the El Paso district. That said survey, as originally located on the ground by said surveyor and described bjf the original field notes as follows: ‘Situated in El Paso district, on the waters of Alameto Ok. a tributary of Rio Grande river about -— miles from Ft. Davis and known as survey No. 529, in block 8; beginning at the N. W. Cor. survey 528; thence N. 1,900 vrs. to st. and m., thence E. 1,900 vrs. to st. and m., thence S. 1,900 vrs. to st. and m.; thence W. 1,900 vrs. to st. and m.’ That said section No. 529 was recovered from the Galveston, Harrisburg & San Antonio Railway Company by the state of Texas in the cause of the state of Texas v. Galveston, Harrisburg & San Antonio Railway Company, in the district court of Val Verde county, Tex., which said judgment was affirmed by the Supreme Court of Tex., June 27, 1891. That said section of land was afterwards placed on the market -as state public school lands, and sold to V. A. Haffard August 28, A. D. 1909, as 640 acres, and the plaintiff became the owner by a regular chain of transfer, and is now the owner of same.
“(2) That the defendants, A. B. Main and wife, Mrs. L. Main, are the owners of survey No. 9, in block 347, T. C. Ry. Co. grant situated m Presidio county, Tex. That said survey No. 9 was located for the T. C. Ry. Co., by S. A. Thompson, deputy surveyor of Presidio county. Tex., on June 6, 1882, and by the original field notes of said survey was located and described as follows: ‘Beginning at a stake and mound one-mile south of the S. W. corner of survey No. 7,' in this block for the N. W. corner of this survey; thence south 1,900 vrs. built a rock mound 3 ft. high long rock marked A. in center of mound, at the N. W. corner of survey No. 529. in Block 8, Galveston, Harrisburg & San Antonio Railway Company, for the S. W. corner of this survey, from whence a clump of oaks brs. S. 48%° E. and a double oak brs. 38% ° E. about 220 vrs.; thence E. 1,900 vrs. to a rock mound for the S. E. corner of this survey; thence north 1,900 vrs. to a rock mound composed of 4 large rocks for- the N. E. corner of this survey, from which the west end of a ledge of rock in valley, brs. N. 9 E. and an oak 15" in dia. brs. S. 48% E. 800 vrs.; thence west 1,900 vrs. to the place of beginning.’ That the defendants are the owners of said survey No. 9.
“(3) That there is a conflict of 826 varas between block No. 8 Galveston, Harrisburg & San Antonio Railway Company and block 347 Texas Central Railway Company grants.
“(4) That section No. 10, block 347, Texas-Central Railway Company grant which was surveyed for the public free school fund by virtue of certificate for survey No. 9, contains 640 acres, and that for the purpose of correcting survey No. 9, so as to make it contain 640-acres, the Commissioner of the General Land Office of the state of Texas requested a resurvey of survey No. 529, block 8, Galveston, Harrisburg & San Antonio Railway Company, which corrected survey was made in September,. 1907, and said field notes filed for record March 1908, and approved April 1, 1908, by Commissioner of the General Land Office for 361.2. acres. That by said corrected field notes said survey No. 529 is described as: ‘Beginning at the Ñ. W. corner of survey No. 528; thence-north 1,074 vrs.; thence east 1,900 vrs.; thenee-west 1,900 vrs. to the place of beginning.’ That said corrected field notes are recognized by the Commissioner of the General Land Office as. the correct field notes for said survey No. 529. That the distance from the S. W. corner of survey No. 7, in block 347, Texas Central Railway Company to the northwest corner of survey No. 529, block No. 8, Galveston, Harrisburg & San Antonio Railway Company, is 1,074 varas,, and that the distance from the northeast corner of said survey No. 529 to the northeast, corner of said survey No. 9 is 1,074 vrs.
“(5) That said survey No. 9, in block 347,. Texas Central Railway Company, as patented, by the state of Texas, to the grantors of the defendants herein on March 1, 1884, as being 1,-900 varas square and containing 640 acres.
“(6) It is further agreed by the parties hereto-that the only question involved in this suit is a question of boundary.”

Upon the findings, the court made the following conclusions of law:

“1. The question in the case is, Was it lawful to so correct the field notes of the original Galveston, Harrisburg & San Antonio Railway Company, survey No. 529, block 8, it being land belonging to the general school fund so as to reduce its quantity, and give it less than was called for by its original field notes, and thereby take from it the land in controversy and give it to an individual survey? Theré are several statutes which have a bearing upon this question. Article 5385 provides that: ‘In all cases where said land, or any portion thereof, has been surveyed into tracts of 640 acres, more or less, and field notes thereof returned and filed in the General Land Office, the same is hereby declared a sufficient designation of said land; and the Commissioner of the General Land Office shall dispose of the same by the survey and block numbers contained in said field notes.’ This article taken in connection with the act of February 3, 1883, which, in effect, declares that all locations of public land surveyed for the benefit of the public free schools are valid, whether the certificates by which they were located were “void” or voidable, valid or invalid. And the Act of March 22, 1889, which, in effect declares that all lands embraced within the surveys located by virtue of the certificates of the class by virtue- of which the survey in question was located are withdrawn from the mass of the public domain, and the subsequent provisions of the statute declare that all excess of said surveys shall belong to the public free school fund, and, providing how those surveys that belong to individuals may be corrected so as to ascertain this excess, clearly forbids the Commissioners of the General Land Office from making any correction on the said survey which would reduce the area or quantity of the land called for. Especially is this true where it is attempted, as in this .case, to reduce survey 529 in order to give a junior individual survey made by virtue of entirely different certificates its full complement of land. Erisbie v. Smith, 13 Tex. Civ. App. 384, 35 S. W. 336.
“(2) In so far as survey No. 9, block 347, Texas Central Railway Company, claimed by the defendants to overlap survey No. 529, block 8, Galveston, Harrisburg & San Antonio Railway Company, belonging to the plaintiff, the same is void under the provisions of section 2, art. 14, of the Constitution of the state which provides ‘that all genuine land certificates heretofore or hereafter issued shall be located, surveyed or patented, only upon vacant and unappropriated public domain, and not upon any land titled or equitably owned under color of title from the sovereignty of the state, evidence of the appropriation of which is on the county records or in the General Land Office.’
“(3) Since it is agreed that survey No. 529 claimed by the plaintiff was located on the ground by the surveyor, and was awarded to the plaintiff for 640 acres, and the defendants’ survey No. 9 calls to connect on to the north.west corner of plaintiff’s survey No. 529, and to conform with its lines as actually placed on the ground, I hold as a matter of law that the call for plaintiff’s corners and lines are superior to the calls for course and distance, and therefore that its lines cannot be extended so as to lap over plaintiff’s survey 529 as contended for in this case.
“(4) It is my opinion under the agreed facts that plaintiff is entitled to recover the land embraced in the original field notes of survey 529, Galveston, Harrisburg & San Antonio Railway Company, block No. 8, and judgement is accordingly entered.”

The judgment recites that the court was of the opinion that plaintiff was entitled to recover the lands sued for, and entered judgment accordingly, describing the land as follows:

“Beginning at the N. W. corner of survey No. 528 said block; thence N. 1,900 vrs. to stake and mound; thence E. 1,900 vrs. to stake and mound; thence S. 1,900 vrs. to stake and mound; thence W. 1,900 vrs. to place of beginning.”

Prom this judgment Main and wife appeal. To show the situation on the ground a plat is hereto attached.

Opinion.

Prom the statement made, it is apparent that this is a boundary suit involving the location of the dividing line between section 529 and section 9. The description of the land in the judgment is not even as complete as that given in the petition. It does not identify the grantee or the block in which the same is situate. Possibly, however, in this particular it would be aided by the petition. Conceding this to be true, the issue of boundary remains unsettled. The judgment leaves the location of the dividing line unsettled and the cáse just where it started. The description by metes and bounds simply follows the original field notes. The location of the disputed line is not established arid fixed by reference to any known and readily identified permanent object. Any officer undertaking to execute a writ of possession would have to constitute himself the court and jury and determine the location of the north line of section 529. Under the authorities, it is well settled that in a boundary suit the description contained in this judgment is insufficient to settle the rights of the parties. Reed v. Cavett, 1 Tex. Civ. App. 154, 20 S. W. 837; Jones v. Andrews, 72 Tex. 5, 9 S. W. 170; Edwards v. Smith, 71 Tex. 156, 9 S. W. 77; Merrell v. Kenney, 45 S. W. 423; Bank v. Webb, 60 Tex. Civ. App. 321, 128 S. W. 426; Wilhelm v. Baumann, 63 Tex. Civ. App. 146, 133 S. W. 292; Johnson v. Gary, 157 S. W. 237; Bailey v. Baker, 42 S. W. 124.

This error is not assigned or called to our attention in any way, but it is plainly apparent upon the face of the record. It would be an idle ceremony to affirm a judgment which has failed to settle the controversy. The insufficiency of, and error in, the judgment is fundamental, and necessitates a reversal even though it is not assigned. Houston Oil Co. v. Kimball, 103 Tex. 94, 122 S. W. 533, 124 S. W. 85; Oar v. Davis, 105 Tex. 479, 151 S. W. 794; Wilson v. Johnson, 94 Tex. 272, 60 S. W. 242; City of San Antonio v. Talerico, 98 Tex. 151, 81 S. W. 518; Hahn v. Kellogg, 42 Tex. Civ. App. 680, 94 S. W. 389; Gibson v. Pierce, 146 S. W. 983; Adams v. Faircloth, 97 S. W. 507.

Upon the legal questions arising in the case appellee urges in support of the judgment rendered in his favor, the following propositions:

“(1) The judgment of the trial court is right, and should be affirmed. In so far as survey No. 9, block 347, Texas Central Railway Company, claimed by appellants, overlaps survey No. 529, block 8, Galveston, Harrisburg & San Antonio Railway Company,’ belonging to appellee, tbe same is void under the provisions of section 2, art. 14, of tbe Constitution of the state.
“(2) Moreover, upon tbe recovery by the state of survey 529, from tbe Galveston, Harrisburg & San Antonio Railway Company, the entire survey as previously surveyed immediately became donated and set apart to the public free school fund of the state by virtue of tbe legislative intent, and was never at any time thereafter ‘vacant and unappropriated public domain,’ subject to appellants’ location, survey -or patent.
“(3) The judgment of tbe trial court shall be affirmed for tbe further reason that survey No. 529 was located on tbe ground by tbe surveyor, and was awarded to appellee for 640 acres, and the ■ appellants’ survey No. 9 calls to connect with tbe corner of appellee’s survey and to conform with its lines as actually placed on the ground, and such calls for corners and lines actually made on tbe ground are superior to calls for corners and distances, for which reason the lines of survey 8 cannot be made to extend so as to overlap appellee’s survey No. 529, as ■contended for by appellants.”

Section 2, art. 14, of the Constitution contains the following language:

“Provided, that all genuine land certificates heretofore or hereafter issued shall be located, ■surveyed or patented, only upon vacant and unappropriated public domain, and not upon any land titled or equitably owned under color of title from the sovereignty of tbe state, evidence of the appropriation of which is on tbe county records or in the General Land Office; or when the appropriation is evidenced by the occupation of tbe owner, or of some person holding for him.”

By article 5385, Vernon's Sayles’ Civil Statutes, it is declared:

“All lands heretofore set apart under the Constitution and laws of Texas, and all of the unappropriated public domain remaining in tbe state of Texas, of whatever character, and wheresoever located, including any lands hereafter recovered by the state, except that included in lakes, bays and islands along tbe Gulf -of Mexico within tidewater limits, is set apart and granted to the permanent school fund of the state; and all such lands heretofore or hereafter recovered from railway companies, firms, persons, or other corporations by the state, by suit or otherwise, and constituting a part of said school fund as herein provided, shall be disposed of as other school lands, except as otherwise provided by law. In all cases where said lands, or any portion thereof, has been surveyed into tracts of six hundred and forty acres, more or less, and field notes thereof returned to and filed in the general land office, the same is hereby declared a sufficient designation of said land; and the commissioner of the general land office shall dispose of the same by the survey and block numbers contained in said field notes.”

The act of February 3, 1883 (Gen. Laws, p. 4), provides:

“Any and all public lands heretofore surveyed by railroads for corporations or any company or any person in this state, for the benefit of the ■ public free schools of this state, by virtue of any certificate, valid or invalid, void or voidable, be, and the same are hereby declared to be lands belonging to the public free schools of this state.”

By Act of March 22, 1889, General Laws, page 103, it is declared:

“That all surveys and blocks of surveys heretofore made by virtue of valid alternate script be and the same are, hereby declared to segregate from the mass of the public domain all the land embraced in said surveys or blocks of surveys as evidenced by the corners and lines of same, or by calls for natural or artificial objects, or the calls for the corners and boundaries of other surveys, or by the maps and other records in the General Land Office. That all excess in said surveys or blocks of surveys are hereby donated and declared to belong to the public free school fund of the state; and it shall be the duty of the commissioner of the General Land Office to ascertain, by any and all means practicable the existence and extent of such excesses, and to provide for and direct such surveys, or corrected surveys, as may be necessary for this purpose.”

The foregoing constitutional and statutory provisions, as well as the cases of Day L. & C. Co. v. State, 68 Tex. 526, 4 S. W. 865, and Frisbie v. Smith, 13 Tex. Civ. App. 384, 35 S. W. 336, are relied upon by appellee as supporting the first two propositions, but under the facts presented they have no application. Under the agreed facts, it appears that this land was recovered by the state by judgment rendered in the district court of Val Verde county, affirmed by the Supreme Court June 27, 1891. See Railway Company v. State, 81 Tex. 572, 17 S. W. 67. In appellants’ brief it is stated that the agreement is erroneous in stating that the land was recovered by the state in the above-mentioned suit, and that in fact it was recovered in another suit in the District Court of Val Verde county, namely, the case of G., H. & S. A. Ry. Co. v. State, reported in 34 S. W. 747, and 36 S. W. 111. It makes no difference in which suit the recovery was had. In either event the recovery was based upon the fact that the certificate by virtue of which section 529 was located was unlawfully issued. Section 529 was located in 1S75, but in view of the holding of the court upon the recovery of the land by the state, such location was invalid. So far as the record discloses, the section had not been patented to the Galveston, Harrisburg & San Antonio Railway Company in 1882, when section 9 was located for the Texas Central Railway Company. On that date it was not titled land, nor was it equitably owned by the Galveston, Harrisburg & San' Antonio Railway Company, within the meaning of section 2, art. 14, of the Constitution. McLeary v. Dawson, 87 Tex. 524, 29 S. W. 1044; Adams v. Railway Company, 70 Tex. 252, 7 S. W. 729; Kennedy Pasture Co. v. State, 196 S. W. 287; Hanrick v. Dodd, 62 Tex. 75. So, by its location in 1882, the Texas Central Railway Company acquired the equitable title to the disputed strip of land, and by the issuance of the patent in 1884 the said Texas Central Railway Company acquired both the legal and equitable title. The Texas Central Railway Company was not a party to the suit in which the state recovered section 529, so its title to the land was in no wise affected by the judgment in that case. The disputed strip thus did not pass to the school fund upon the recovery by the state against the Galveston, Harrisburg & San Antonio Railway Company, but belonged to the Texas Central Railway Company, and the statutes and constitutional provision quoted above have no application. The same is true of Day L. & C. Co. v. State and Frisbie v. Smith.

Under this view of the case, the only remaining question relates to the location of the south line of section 9. The trial court concluded as a matter of law that since survey 529 was actually located on the ground, and since the field notes of survey 9 call for a connection with the northwest corner of survey 529, and conforms with the north line thereof as actually placed on the ground, such call was superior to the course and distance call in the location of survey 9, and that the south line of 9 could not be extended so as to overlap 529. Under some circumstances this conclusion of the court would have been proper. An unmarked corner or line is sometimes accorded the dignity of an artificial object, and permitted to control a course and distance call. Maddox Bros. v. Fenner, 79 Tex. 279, 15 S. W. 237; Thatcher v. Matthews, 101 Tex. 122, 105 S. W. 317. But such controlling effect is not always given. Gerald v. Freeman, 68 Tex. 201, 4 S. W. 256; Gregg v. Hill, 82 Tex. 405, 17 S. W. 838.

In the instant case the northwest corner of 529 and the north line thereof can only be located by running 1,900 varas north from the northwest comer of survey 528. The southwest corner of 9, which calls for the northwest corner of 529, is marked by. natural objects. There is nothing to indicate that the Surveyor Thompson did not actually survey the lines of 9 and locate same upon the ground. In this condition of the record the presumption obtains that he did do so. Cases cited, 3 Michie, Digest, pp. 87, 88. This presumption is strengthened by the particularity with which he fixed the location of the southwest corner by reference to natural objects. As we construe the findings, survey 9 as actually surveyed and located by the surveyor overlapped 529 a distance of 826 varas. The object of all rules formulated by the courts for locating, fixing, and determining boundaries has been to ascertain and discover, if possible, the. footsteps of the surveyor, and in this way identify the survey actually made. Since the presumption obtains that survey 9 was actually located on the ground, the southwest corner thereof marked, and since the findings clearly indicate that, as actually located, it overlapped section 529 by 826 varas, the court therefore erred in giving controlling'effect to the unmarked corner and line of 529 over the distance calls in 9.

Upon retrial, if it be established that the south line of 9 as actually surveyed overlapped the north end of 529, then the distance call shall prevail over the call for the northwest corner and north' line of 529, and Cartwright is not entitled to recover.

On the other hand, if there was no such overlapping then section 529, having been recovered by the state, became land belonging to the permanent school fund. Article 5385, supra. As such, it was appropriated land (Day L, & C. Co. v. State, supra), and it was not lawful for the land commissioner to correct the field notes thereof so as to reduce its acreage and take from it land belonging to such fund and in effect give it to another survey owned by an individual. Under such circumstances, the correction was without lawful warrant, and, Cartwright having purchased the survey as containing 640 acres, he is entitled to recover.

The corrected field notes of 529 given in paragraph 4 of the findings have a missing call, but it is readily supplied. There is also in said paragraph a manifest error in the stated distance from the southwest corner of survey 7 to the northwest corner of survey 529, but it is of no importance.

Reversed and remanded.

WALTHALL, J., did not sit, being absent on committee of Judges assisting the Supreme Court. 
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