Ralph Crawford instituted this suit against appellant, in the ordinary form of trespass to try title, to recover sections Nos. 3 and 5, in block C-3, Tyler Tap Railway Company surveys, in Hale county. The two sections of land are described by metes and bounds in the petition. Plaintiff also prayed for rents. The death of plaintiff having been suggested, Ralph D. Crawford and Julia Crawford, on September 7, 1914, intervened, alleging that they were the owners of the land and the devisees of Ralph Crawford, and adopting the allegations in plaintiff’s petition. Defendant McCormack answered by disclaiming as to all the lands sued for except a cer*487tain portion thereof described in bis answer by metes and bounds, and as to that part pleaded not guilty and general denial. The ease was tried before a jury upon special issues. Based upon the verdict, the court rendered judgment for Ralph D. and Julia Crawford for the lands in issue and $327 rents.
The land claimed by defendant Crawford is described in his answer as follows:
“Beginning two miles east and four miles north of the sod monument referred to in plaintiff’s petition as the northeast corner of survey No. 9j block J-K, and which said beginning point is the northeast comer of survey 29, block S-l, as now located; thence east 1,621 varas to a point in the west line of block C-3; thence south 7,300 varas to a point on the north line of J-K 2; thence west 1,621 varas to the southeast comer of survey No. 4, block J-K; thence north 7,300 varas to the beginning. The land thus described includes the greater part of sections 3 and 5, set out in plaintiff’s petition.”
On the trial it was admitted that Ralph D. and Julia Crawford own surveys 3 and 5, block C-3, wherever same may be properly located. The issue in the case was as to the proper location of block C-3. The plaintiffs contended that block C-3, when properly located, was surrounded by blocks S-l and J-K on the west, block J-K 2 on the south, J-K 3 on the east, and by the Hobbs and Ray Surveys on the north, said last-named surveys lying between block C-3 and block M-13. The defendants’ contention was that there was a vacancy 1,621 varas wide existing between block C-3 on the east, and blocks S-l and J-K on the west; and that a yacancy also existed between the north line of J-K 2 and the south line of block C-3. According to the maps introduced in evidence, there was a sod monument which was a well-established corner, near the center of block J-K, being the northeast comer of section 9 of said block. A line protracted east from the sod monument would be the south line of block C-3, as last-named block was located, according to the contention of plaintiff.
John Summerfield testified by deposition for plaintiff in substance as follows:
“I am 59 years of age, and reside in Dallas, Tex.; was land surveyor from 1876 to 1880; ran solar instrument, doing meridian and township work for the United States government in 1874 and 1875. I am the same Summerfield who signed the field notes of the surveys in blocks C-3, J-K, J-K 2 and J-K 3 in Hale county, Tex. In 1876,1 ran a line and established certain earth monuments and mounds and pits, and afterwards some of these marks were adopted as comers for surveys and field notes dated at the time of their adoption. The earth mound or monument at the northeast comer of survey 9„ block J-K, was built by me on the morning of June 3, 1876, and was established as per my original field notes at the end of the eleventh mile on a line I was running due east (variation 11 degrees, 45 minutes east) from another earth monument established by me on the 2d day of June, 1876. These monuments, if no errors were made by my chainmen, would be 11 miles apart. I ran east from the sod monument at the1 northeast comer of survey 9, block J-K, on June 3, 1876, seven miles, and then turned north and ran 4 miles, 53 chains, 22 links, putting mound and two pits at the end of each mile to an intersection with Jot Gunter’s party, which had left us on the morning of June 1st 1876, at an earth monument established on the evening of May 30, 1876, said monument after-wards adopted as the southwest comer of survey 347, block M-6; but there was an error of one-half mile in eastings between us, and as they had been chasing wild horses thought they had made it. I have no recollection of running other lines in blocks C-3, J-K, J-K 2, and J-K 3, other than the fine above mentioned, previous to their location. I do not recollect ever being at the southeast comer of survey 124, block M-8, in Swisher county. I do not recollect that I was ever at the southwest comer of survey 1, block M-13 in Swisher county. The mounds made by me on the line run by me in 1876, where they fitted into the surveys at the time of their location, were intended to be the mounds referred to in field notes, but in retracing some-of my lines, where I had put up mounds and pits in 1876, in. the year following, I found them nearly destroyed by the buffaloes, so that I stopped putting them up and only established the large earth monuments which they could not obliterate. This applies to the prairies where we could not find rock to put up for comers. My recollection is that in all the field notes a mound was called for at each corner, but they will show for themselves. I put a mound and two pits, one on each side of the line, I was running, at the end of each mile run by me in 1876, except where earth monuments or rock mounds are called. I do not remember to have ever surveyed or measured the distance from either the southwest corner of survey 124, block M-8, or the southeast comer of survey No. 1,. block M-13, to 0-3, or to that vicinity.”
The field notes of the surveys in block 0-3', beginning with survey No. 1 in the northwest comer of said block, show according to the agreement of the parties in this court that the beginning corner of said block 1 is 15 miles south from the southeast corner of survey 124, in block M-8, and 12 miles south of the southwest corner of survey No. 1, in block M-13. The remaining calls of said section 1 are as follows:
“Thence south 1,900 varas a mound; thence east 1,900 varas a mound; north 1,900 varas a mound; west 1,900 varas to the beginning.”
The remaining surveys in said block 0-3 call to begin at a corner of the survey next preceding it in numerical order on through the block and call for nothing except that at each corner a mound is specified. The field notes of this block are dated November 5, 1S77, and filed in the General Land Office January 7, 1878, and passed as correct on the map of Hale county, March 27, 1878.
Meld notes of a' survey, made by N. K. Smith, were introduced in evidence, showing that if block 0-3 is located from the beginning call of survey No. 1, in said block, that the entire west line of the block will lie 1,621 varas east of the east line of block J-K, creating a vacancy between the two blocks, which is part of the land claimed by the defendant.
Over the objections of defendant, plaintiff introduced the field notes of surveys Nos. 1 to 11 inclusive of block J-K. The field notes of survey 1 in said block call to begin at .a mound the northwest corner of survey No. 5, in block C-3, and for the northwest *488corner of survey No. 4, in. said block. Th’e field notes of survey No. 3 in one of tbe corners calls for tbe sod monument heretofore mentioned; and without setting out the field notes in full it is sufficient to state that all of the surveys in block J-K, which touch block 0-3 or the sod monument, called for them. The remaining surveys in said block J-K call to begin on a survey next preceding it in its numerical order. The field notes of this block are dated January 14, 1878, and were filed in the General Land Office February 11, 1878. The field notes of blocks J-K 2 and J-K 3 also call for the corners in block Ct3, wherever the sections in said blocks touch the line of block 0-3.
The field notes'of surveys 5, 61, 62, 65, and 68 of block M-3, were introduced in evidence, none of which refer to either of the three blocks last above mentioned. The field notes of said survey 5 are dated March 30, 1878, and the field notes of the remaining sections in said block are dated January 21, 1878.
The patents of surveys 3 and 5, block C-3, dated March' 28, 1878, describing the surveys exactly as in the original field notes, were introduced.
The defendant introduced in evidence the field notes of a number of surveys in block B-5, M-6 and M-8; and the field notes of survey No. 1, block M-13, showing that the last-named survey begins at a mound 2 miles south of the southeast corner of survey 124, •block MS. These field notes are dated September 29, 1877; fiied November 1, 1877; and passed as correct on the map 'and patented January 18, 1878. The defendant then introduced the deposition of John Summer-field, in which he testified that in 1874 he worked for the United States government, running boundary lines in Colorado, Indian Territory, and Southern Kansas; that he came to Texas in 1876, and took charge of the locating party of Jot Gunter and W. B. Munson, at Sherman, and surveyed land as a deputy surveyor under W. Chlloway of the Jack land district, surveying land in what is known as Randall, Deaf Smith, Castro-, Swisher, and Hale counties. This witness further stated:
“I herewith give you the line run by me in the year 1876, from which all the surveys in all of blocks M-S, M-13, C-3, J-K, M-6, and M-7, were located and platted. Wherever the comers established by me in the line hereafter described touched any of surveys in any of said blocks, the same was adopted and described in the field notes. The term ‘mound’ in said surveys was used instead of the word ‘point,’ and if any corner in said field notes did not describe mounds and pits, then no mound was established on the ground. The surveys in the blocks mentioned were all supposed to contain 640 acres and call for one another. The line mentioned as run in 1876 I began at a large earth monument on the south side of the Canadian river on Lodge-sldn creek, in Potter county, established by T. S. McClelland and W. B. Munson in 1875, and this earth monument was afterwards adopted as the southwest corner of survey 153, B. S. & F. block No. 9. I started my survey on the 21st day of May, 1876, from this corner.” |
The witness then describes in detail the line surveyed by him up to June 1, 1876, and continues:
“I ran south for 15 miles to a mound and two pits at the end of each mile; I then turned and ran south 45 east, diagonally across ten sections, putting a mound and two pits at the proper points for the corner of each section. At the end of the tenth section I established an earth monument. Then I ran east for 10 miles, establishing a mound and two pits at the end of each mile, continuing east on the eleventh mile at 38 chains, crossed a creek, which was after-wards known as Running Water; at 80 chains established a large earth monument, which was afterwards adopted as the northeast corner of survey 9, block J-K. * * * All the blocks M-6, M-8, M-13, M-15, and C-3 were all plotted in after these lines were run, and wherever they touched these base fines the corners on said lines were adopted as the corners for the surveys in said blocks. None of the surveys in blocks M-13 and 0-3 were run out on the ground, and the corners established by me except where any survey may have touched the base line as above. I suppose you call them office surveys, but they wore all plotted and supposed to connect properly from the base line as above described. H. C. Hedrick was not a practicing surveyor, and he signed some of the field notes as a deputy surveyor of the Jack Land District, plotted from the base fines run by me. He has been dead a number of years. Jot Gun-ter and T. S. McClelland are also dead.”
In defining the boundaries of block C-3, the footsteps of the surveyor, Summerfield, are found along its ’south line, if his testimony is to be taken as true. This witness says he located and plotted block C-3 with this line as a base, although the line is not mentioned in his field notes. As heretofore stated, the beginning corner of section 1, block 0-3 is “15 miles south from the southeast corner of survey 124, in block M-8, and 12 miles south of the southwest corner of survey 1, block M-13.” Summerfield says he never measured the distance stated in that call, and has no recollection of ever being at the southeast comer of survey 124, block M-8, or the southwest corner of block M-13.
[1,2] Appellant’s first proposition is:
“Where a block of surveys can be and are definitely located and fixed on the ground by calls of their own field notes and there is no uncertainty or ambiguity whatever in said field note's in themselves, or when applied to the ground and where there is no conflict in the evidence as to any material fact the surveys must be located from the calls of their own field notes.”
The court submitted to the jury as the first special issue the following:
“Did Summerfield, the original surveyor, who located blocks 0-3, J-K and J-K 3, locate said block 0-3 on the base line run by him from the sod monument located at the noi’theast comer of survey No. 9, in block J-K, eastward from said monument, and did he locate the southwest corner of survey No. 5 in said block 0 — 3 on said line 2 miles east of said sod monument? Answer yes or no.”
The jury answered, “Yes.” Appellant requested a peremptory instruction only.
The proposition is urged under the second assignment that:
“Where a survey or block of surveys can be definitely located from the calls of their own field notes and there is no ambiguity or uncex’-*489tainty in the calls, the land must, as a matter of law, he located from the field notes, and it is error to authorize a jury to locate the survey or surveys from a line run but not marked or called for.”
In support of these propositions appellant cites Thompson v. Langdon, 87 Tex. 254, 28 S. W. 931; Upshure County v. Lewright, 101 S. W. 1013; Keystons Co. v. Peach River Lumber Co., 96 S. W. 64; Johnson v. Archibald, 78 Tex. 96, 14 S. W. 267, 22 Am. St. Rep. 27; Anderson v. Stamps, 19 Tex. 460; Converse v. Langshaw, 81 Tex. 275, 16 S. W. 1031; Blackwell v. Coleman County, 94 Tex. 216, 59 S. W. 530; Coleman v. Stewart, 65 S. W. 384; Matthews v. Thatcher, 33 Tex. Civ. App. 133, 76 S. W. 61. We admit that a careful perusal of these authorities tends to sustain appellant’s contention; but the testimony of Summerfield was not objected to and indeed part of it was introduced by appellant. No conflict appears from an inspection of the field notes of the various sections of which block C-3 is constructed, but a serious conflict arises between the calls in the field notes of survey No. 1 of that block and the testimony of Summerfield, wherein he details the manner in which the block was constructed. Having introduced this testimony appellant is in no position now to complain in this court. The evidence having been admitted it became a question of fact as to the proper location of block C-3 upon the ground, and the intention of the surveyor with reference thereto. Cox v. Finks, 41 S. W. 95; Busk v. Manghum, 14 Tex. Civ. App. 621, 37 S. W. 459; Masterson v. Ribble, 34 Tex. Civ. App. 270, 78 S. W. 358; Taft v. Word, 124 S. W. 437; Gilbert v. Finberg, 156 S. W. 506.
[3, 4] Appellant insists that the jury could not properly consider the calls for the lines of block C-3, as they appeared in the field notes of the various sections of block J-K. The testimony of Summerfield shows that these blocks constitute a system of surveys based upon the line outlined by him. McMeans, Justice, in Shindler v. Lutcher & Moore Lumber Co., 107 S. W. 941, held that where the calls in an office survey are based on another survey actually made on the ground and established at the time both surveys recognizing a landmark which could only be known by an actual survey, the fact that the field notes of the office survey were dated one day earlier than the field notes of the actual survey, did not affect the priority of the actual survey. The undisputed testimony is that Summerfield ran only one line, upon which all these blocks were constructed by him, as shown by his field notes filed in the land office several months apart. The fact that he made out and filed the field notes of C-3 first, does not prevent the further fact that the lines of C-3 are called for in the field notes of J-K from having its due weight; and 'the rule that the lines of a prior survey cannot be controlled by the calls of a junior survey should not apply. Crosby v. Stevenson, 156 S. W. 1110. It was held by the Supreme Court of the United States, in the case of Clement v. Packer, 125 U. S. 309, 8 Sup. Ct. 907, 31 L. Ed. 728, that a marked line or corner in a block or system of surveys belongs as much to one block as another. Booker v. Hart, 77 Tex. 146, 12 S. W. 16.
[5] Appellant predicates error upon the action of the court in permitting appellee to introduce in evidence certain maps, being copies furnished by the Land Office. Certified sketches and maps from the Land Office are always competent to show at least prima facie the location of surveys outlined there, and moreover, the maps introduced were specified in the stipulation made by the attorneys, wherein it is agreed that they should be introduced. Myers v. Moody, 122 S. W. 920; Haile v. Johnson, 133 S. W. 1088.
[6] One Hunnicutt, Chief Draftsman in the General Land Office, was permitted, over the objection of appellant, to testify with reference to what appeared from the original field notes of the various surveys composing blocks C-3, J-K, J-K 2 and S-l. The maps and field notes themselves having been introduced in evidence and the facts testified to by this witness appearing from an examination of them, the error, if any, in the admission of his deposition, is harmless.
[7, 8] Complaint is also made of the admission in evidence of the testimony of the witnesses Ray, Fortenberry, and Hobbs. These witnesses testified in substance that in 1906 they had purchased a certain vacant strip of land from the state lying between C-3 and M-13; that some of them had had possession of certain portions of block C-3 for more than 10 years, having the same fenced and occupied under a claim of ownership. The second issue submitted to the jury is as follows:
“Lou will determine from all the evidence in this case whether or not the officers of the state of Texas, and the grantee, Ralph Crawford, named in the patents to the said grantee, intended at the time said patents granting said surveys No. 3 and 5, block C-3, were issued, that said survey should lie adjacent to and adjoining block J-K. Lou will answer this question yes or no.”
We are inclined to the opinion that the issue submitted here is not material in the light of an affirmative finding by the jury upon the first special issue. The evidence adduced from these witnesses therefore has no material bearing upon the real controversy, and could not have influenced the answers made by the jury to either of the special issues, and certainly not to the first. Therefore the error, if any, in admitting this testimony, ia harmless. The rule is that if there is sufficient evidence to sustain the verdict the judgment will not be reversed because immaterial facts are admitted, unless such admission has probably influenced the jury in its findings. Under Rule 62-A (149 S. W. x), none of the *490errors complained ol would justify this court in reversing the judgment.
The judgment is therefore affirmed.
<§^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
<@t^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes