This is the second appeal in this case, the first being reported in 87 S.W. Rep., 847, and 99 Tex. 464, to which we refer for a history and statement of the case.
The main question at issue was the effect to be given to the following language in a deed made March 6, 1889, by appellant Couch and wife to Norton McGown: "A portion of N.W. 1/4 of section ninety (90) B. B. B. C. R. Co., about 2 1/2 miles west of Baird, commencing at N.E. corner of the N.W. 1/4 of said section ninety (90), stake and stone mound from which a p. o. 10 brs. S. 62 1/2 west 217 vrs., marked R.; do 10 brs. N. 77 W. 38 1/2 yrs., marked X; thence west 950 vrs. to S.E. corner No. eighty (80) B. B. B. C. Ry. Co. land, stone and mound for corner, from which a blackjack 8" brs. S. 28 E. 21 vrs. Mk'd N.W. 90 a p. o. 19 brs. N. 83 W., 80 vrs. Mk'd RR; thence south about 190 vrs. to *Page 189 right of way of the Texas Pacific Railway; thence east with said T. P. Ry. right of way about 950 vrs. to corner; thence north about 110 vrs. to stake and stone mound from which a p. o. 10" brs. south 62 1/2 W. 217. vrs. Mk'd R., p. o. 10" brs. N. 77 W. 38 1/2 vrs. marked X, to place of beginning — containing forty (40) acres more or less."
On the first trial the court instructed the jury to return a verdict in favor of the appellees, the Texas Pacific Railway Company and the city of Baird, thus holding that the language above quoted, read in the light of an actual survey, included all the land claimed by Couch and wife north of the Texas Pacific Railway track, the survey made showing that the distances called for would have that effect. This action was approved by the Court of Civil Appeals for the Fourth District, who treated the calls for the right of way of the railroad as calls for a public road or street had so long been treated in the conveyances of land bounded thereon. The Supreme Court, taking a different view, reversed the judgment and remanded the cause, holding that the issue was one for the jury. The result of the jury trial, however, was the same.
Conclusions. — In treating the calls for the railroad right of way as analogous to calls for public roads and streets the Court of Civil Appeals seem to have been in accord with the view entertained in other jurisdictions, as will be seen from the cases cited in the brief for the appellee, Texas Pacific Railway Company. In one of these cases, for instance, decided by the Supreme Court of Vermont — a court composed of six judges — this language was used by the chief justice: "Public roads and highways, also railroads, are regarded as having three lines: the center line, which is usually the line surveyed when the road is laid out, and on each side of which the road is laid; the two side lines, at equal distances from the center line, and between which lies the territory covered by the road. When, in a conveyance of real estate adjoining a highway, such highway is referred to as constituting a boundary, the center line will be held to be the boundary so referred to, unless the language used in so referring to it shows clearly that a side line, instead of the center, was intended." Harrison Maynard v. Philo Weeks, 41 Vt. 203, marginal page 617. There is, therefore, much force in the contention of the appellee that inasmuch as the calls for distance in the field notes above quoted, from the northeast and northwest corners of the land conveyed to the right of way, would, if given controlling effect, carry the boundaries to the center of the railway track, the calls for the right of way, when read in the light of this established fact, were rendered entirely unambiguous. But however this may be, these calls for distance clearly warranted a finding in favor of the appellees on this issue, which was submitted to the jury in a charge which, though somewhat inaccurate, substantially conformed to the opinion of the Supreme Court.
The fact that the land conveyed was a part of the homestead of Couch and wife is a matter of no consequence and was properly so treated in the trial below. *Page 190
The court also was warranted in ignoring the issue of estoppel presented in the fifth assignment of error, inasmuch as no such estoppel was set up or relied on by appellant in his pleadings. The judgment is therefore affirmed.
ON MOTION FOR REHEARING. The construction given our opinion in this motion places us in conflict with the opinion of the Supreme Court on the former appeal, and therefore seems to call for a further statement of our views. It is true, as appellant contends, that the language of the opinion of the Supreme Court is to the effect that there is a conflict between the calls for distance and the calls for the Texas Pacific Railway right of way. We are frank to say this view does not seem to us to be sound. When the language of the whole deed is read in the light of measurements on the ground showing that the unequal distances called for — one hundred and ninety varas at one end and one hundred and ten at the other — would carry the land conveyed to the center of the railway right of way, the conclusion seems irresistible that in calling for the right of way the parties must have meant the center of the right of way, thus rebutting the presumption which otherwise, according to the view of the Supreme Court, might obtain, that the side and not the center line of the right of way was meant. In no view does the case seem to us precisely analogous to that of a call for distance conflicting with a definite call for the line or corner of another survey, for there one or the other of the calls would have to be rejected as a mistake. Here the call for the right of way at most is only indefinite and seemingly uncertain as to its meaning. The inferior call for distance therefore does not have to be rejected as erroneous, but, on the contrary, may be looked to as an interpreter of the call of higher grade. All the calls of a deed should stand, if possible, and that construction should be adopted which will allow this to be done. This is an old and familiar rule of construction, and we see no good reason for not applying it to this case, even if we reject the view, which seems to prevail in other jurisdictions, that presumptively the call for a railroad right of way, like the call for a road or street, is a call for the center of such way of travel.
But however this may be, the case was remanded by the Supreme Court in order that the question of intention might be submitted to the jury, which was done on the last trial, and it is our conclusion that the evidence as a whole warranted a finding that it was the intention of the parties to include within the conveyance the territory north of the railway track on which the well in question was situated. This intention is, of course, to be found in the language of the deed, read in the light of the circumstances under which it was executed, and not at all, as seems to be contended, in declarations of intention subsequently made on the witness stand or elsewhere. The motion is therefore overruled.
Affirmed.
Writ of error refused. *Page 191