
    RUNKLE v. SMITH.
    (Court of Civil Appeals of Texas.
    Jan. 11, 1911.)
    1. Boundaries (§ 3) — Field Notes — Descriptive Calls.
    A call for a creek in the field notes of a survey calling for a stake as the beginning, and from thence north at 3,200 vrs. a creek, at 3,800 vrs. a stake, thence west at 4,152 vrs. a stake, etc., to the point of beginning, is a descriptive and not a locative call, and is not of higher dignity than a call for course and distance.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec. Dig. § 3.]
    2. Boundaries (§ 41) — Calls—Courses and Distances.
    Where in a suit to establish a boundary there was no 'evidence of any artificial objects called for in the grant, nor evidence that surveyors had run from any other than the beginning corner of the grant, an instruction as to the comparative dignity of the beginning corner and as to reversing calls was not called for, but the court must charge that if the true location of the boundary line of a survey as originally established could be more certainly found by running the course and distance called for in the field notes from corners which were established on the ground than by observing the calls for natural or artificial objects, the jury must locate the boundary by observing calls for course and distance, rather than by observing calls for natural and artificial objects.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 205-207; Dec. Dig. § 41.]
    3. Boundaries (§ 35) — Evidence—Admissibility.
    Where the field notes of the original survey of a tract made in 1857 did not call for a rock pile, the testimony of a witness that he saw a rock pile in 1872, and for some years subsequent thereto, at the end of a line as run by a surveyor making a subsequent survey, to have the jury believe that the rock pile was made at the place for a corner of the survey, was inadmissible in the absence of evidence that the pile was placed there by the surveyor who made the original survey, or by some one who knew that it was at the corner of the original survey.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 153-183; Dec. Dig. § -35.]
    
      4. Trial (§ 84) — Evidence—Grounds of Admissibility.
    Where evidence is sought to be introduced on a specified ground, the court need not rule on its admissibility on another ground.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 211-222; Dec. Dig. § 84.]
    5. Boundaries (§ 35) — Location of Boundary Line — Evidence—Admissibility. ■
    In a suit to establish a boundary line, evidence that, after plaintiff had stated, while in possession of the land claimed by him, that he would acknowledge the line to be where defendant claimed it to be, provided defendant would dismiss a suit to establish the line and pay the costs, defendant dismissed the suit and paid the costs, and plaintiff acquiesced in the line for several years, was admissible to show the true location of the line.
    [Ed. Note. — Eor other cases, see Boundaries, Cent. Dig. § 165; Dec. Dig. § 35.]
    6. Boundaries (§ 35) — Location of Boundary Line — Evidence—Admissibility.
    Though every man is presumed to know the location of his land lines, and though he may not be estopped by acknowledging the location of such lines or by acquiescing therein, yet the fact of his acknowledging the location of such lines and acquiescing therein is a circumstance admissible as evidence, in determining the true location thereof.
    [Ed. Note. — For other cases, see Boundaries, Gent. Dig. § 165; Dec. Dig. § 35.]
    Appeal from District Court, Comanche County; J. H. Arnold, Judge.
    Action by H. M. Smith against J. D. Run-kle. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    See, also, 114 S. W. 865.
    G. E. Smith and J. P. Graham, for appellant. Callaway & Callaway, for appellee.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   JENKINS, J.

This is a suit to establish . the boundary line between the Lampasas county school land and a quarter section on the east thereof. The Lampasas county school land is the prior survey, having been made in 1857. The quarter section referred to calls for the east line of said survey. The field notes of the Lampasas county school land survey are as follows: “Beginning at a stake on the northeast boundary line of survey for Singleton Thompson No. 9, from which the N. E. corner of said Thompson survey bears E. 1,548 vrs., thence N. at 3,200 vrs. a creek, at 3,800 vrs. a stake; thence W. at 4,152 vrs. a stake, from which a B. J. brs. N. 27 W. 9 vrs.; a P. O. brs. S. 10 E. 39 vrs.; thence N. 1,187 vrs. a stake (from which a P. O. brs. S. 2 W. 12 vrs.; a P. O. brs. N. 79 W. 10 vrs.; thence W. 2,375 vrs. stake, from which a B. J. brs. N. 74 E. 18 vrs. do. brs. N. 35 W. 15 vrs.; thence S. 2,800 vrs. branch, 3,800 vrs. creek, 4,987 vrs. stake; thence east 6,527 vrs. to beginning.” It will be observed that no bearing trees are called for at the beginning, nor at the second nor at the sixth corner; the first and sixth corners being respectively the southeast and southwest corners. There is no evidence in the case as to whether or not the corners which call for bearing trees can be located by the bearings called for. Two lines have been run for the east line of the Lampasas county school league survey, one called in the record the Holman line and the other the Buey line. These lines were run by surveyors of these names a few years ago. The jury found that the Holman line was the true line as claimed by appellee, who was plaintiff in the court below. There does not seem to be any question as to the true location of the northeast corner of said Singleton Thompson survey. Beginning at this corner and running thence west 1,548 vrs. for the beginning corner of the Lampasas county school land will place the corner where Buey placed it, and west of where Holman placed it. In running the line as Holman ran it, a creek or branch is reached at about the distance called for in the field notes of the Lampasas county school land. In running the line as Buey ran it, it is some distance farther to a creek. The evidence is not certain as to this point, but the excess in distance is shown to be from 10 to 100 varas. These are not the same creeks or branches. E'ach of them is perhaps more properly described as a dry branch.

Appellant assigns as error the refusal of the court to give the following special charge: “On the question of the relative importance and dignity of calls mentioned in the court’s main charge above given you, I give you the following additional charge on this issue, which you will consider in connection with the main charge: If you believe from the facts and circumstances in this case that the true location of the east boundary line of the one-league Lampasas county survey, as originally run or established, can be more certainly found or its locality determined by running the courses and distances called for in the field notes from such corner or corners, if any, as are established on the ground, if any, than by observing the calls for natural or artificial objects, if any, then, if you so believe, it will be your duty to locate the said east boundary line by observing call's for course and distance, if any, rather than observing calls, if any, for natural or artificial objects.”

The court in its main charge instructed the jury as follows: “If from the evidence the lines, comers, or distances are uncertain, or there are contradictory or uncertain calls in the field notes of said survey, as applied to tlie evidence, if any, found on the ground, so that the facts, if any, actually found on the ground cannot be reconciled with each other or the field notes, then you will in their order give effect to these calls that in law are considered most certain and most liable to lead to a satisfactory and just conclusion, and to enable the jury to determine with the greatest certainty the true location of the land, to wit: (a) Calls for natural objects, such as streams, springs, mountains, and the like, if any, actually found upon the ground as called for will ordinarily control other calls that it will ordinarily be given greater effect, (b) Artificial objects, such as marked lines, established corners, and the like, actually found on the ground, if any, will ordinarily control calls for either course or distance, (c) The course as called for in the field notes will ordinarily control and be given greater effect than distance as called for. (5) The beginning corner of a survey, as stated in the field notes, is not entitled to any greater consideration than any other corner, neither is the order in which the lines were run, as stated in the field notes, ordinarily of any consequence; reversing the courses, or beginning at some other corner is equally lawful. (6) The object and purpose of all the rules being to enable the jury to determine the true location of the survey, and to determine and establish the lines and corners as they were originally located and established by the surveyor on the ground, if they were so established, and when their application as above given lead to contradictory results or uncertainty or confusion, then the rule should be adopted which on the whole leads to the greatest certainty in determining the true location of the land as it was originally located on the ground. (7) Now bearing carefully in mind the foregoing rules of law, you will from the evidence locate and determine the true location of the east boundary line of the Lampasas school land survey as the same was originally located on the ground.”

These general rules have usually been given in boundary suits since the days of Stafford v. King, 30 Tex. 257, 94 Am. Dec. 304, and, in a proper case, they are sufficient. It is not necessary, however, that they should be given in cases where they have no application to the facts, and it might be error so to do. For instance, in this ease, there is no evidence as to any natural object called for in the field notes as a locative call being found on the ground. The creek called for in the first line is a descriptive and not a locative call, and is not of higher dignity than a call for course and distance. Jones v. Andrews, 72 Tex. 18, 9 S. W. 173, 174. Nor is there any evidence as to any artificial objects called for in the grant, such as marked lines, established corners, or bearing trees being found on the ground. There is no evidence that either of the surveyors ran from any other than the beginning corner of the Lampasas county grant; and the instruction as to the comparative dignity of the beginning corner, and as to reversing calls, was not called for by the facts of the case. However, no complaint is made as to the instruction given, but the assignment of error is as ■ to the instruction refused. The facts of the case called for the requested instruction as pertinently presenting defendant’s theory of ¡lie case, and it was error to refuse the same. Bingham v. McDowell, 69 Tex. 98, 7 S. W. 316; Jones v. Andrews, supra; Sanborn v. Gunter, 84 Tex. 273,17 S. W. 121, 20 S. W. 72.

Appellant also assigns as error the action of the court in permitting the witness Dewey to testify that he saw a rock pile in 1872, and for some years subsequent thereto, at the north end of the line as run by Holman. We think this assignment well taken. It was the evident purpose of appellee to have the jury believe that this rock pile was made at said place for the northeast corner of the Lampasas county school land; otherwise it would have been wholly irrelevant and immaterial. If it was made there for that purpose, it is wholly irrelevant and immaterial, unless it was placed there by the surveyor who made the original survey, or by some one who knew that it was at the corner of said survey. There is no evidence as to how this rock pile- got there. It was not called for in the o'riginal field notes. It was seen by Dewey first in 1872, but the Lampasas county school land survey was made in 1857.

Appellant complains of the action of the court in refusing to allow certain evidence offered by him, the purpose of which was to "estop appellee on account of an agreed line. On the former appeal of this case (114 S. W. 865) the Court of Appeals of the Second district held that the question of estoppel was not in the case.

Appellant makes a second proposition under this assignment, to the effect that this evidence was admissible as tending to show the true location of the line. The answer to this is that it is explicitly stated in the bill that it was offered only upon the ground of estoppel. The court was not called upon to rule upon the admissibility of said evidence as being offered upon another ground. Had the appellant offered this evidence as tending to show the true location of the line, we think it would have been admissible. The evidence offered was that appellee, being in possession of the land now claimed by him, and claiming the same under purchase from the state, and appellant being in possession of the land now claimed by him,' appellant brought suit against appellee to establish the boundary line now in controversy, and that appellee stated to appellant he did not claim the land now in controversy, and would acknowledge the line to be where appellant now claims it, if appellant would dismiss the suit and pay the costs, and appellant did dismiss said suit and pay the costs therein, and that appellee acquiesced in said line from the time said agreement was made in 1891 until he forfeited said quarter section in 1896. The grounds upon which it was held that appellee was not estopped by this action are set forth in the former opinion above referred to. Every man is presumed to know the location of his land lines; and while he may not be estopped in a particular case by acknowledging the location of such lines, or by acquiescence therein, still, It Is a circumstance, and often of great weight, in determining the true location of such lines. Floyd v. Rice, 28 Tex. 343; Bohny v. Petty, 81 Tex. 528, 17 S. W. 80.

Eor the errors above indicated, this case is reversed and remanded.

Reversed and remanded.  