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the strip lying between the north boundary SOUTHWESTERN SETTLEMENT & DE. line of the Jacks and the south boundary line VELOPMENT.CO. et al. v. STAN. of section No. 12, referred to in this record BURG et ux. (No.' 892.)

as the Charley Stanburg claim. Appellants

contend that the south boundary line of sec. (Court of Civil Appeals of Texas. Beaumont. tion 12 is practically coincident with the Feb. 10, 1923.)

north boundary line of the Jacks, and that 1. Boundaries 3(3)-Natural objects con

the south boundary line of what appellees trol when discoverable.

contend was vacant land is, in fact, the south Natural and artificial objects called for in boundary line of section 12. On this theory the field notes of a survey are of controlling the land in controversy—23.7 acres-is à importance in locating the boundaries; but part of section 12, and belongs to appellants. where such objects cannot be found, nor their Appellants have made a very extended previous location accounted for, the survey statement from the evidence. Appellees have should be located by the call for courses and filed a short brief, but make no statement distances.

whatever. Therefore the statement made by 2. Boundaries Om3(5)-Courses and distances

us is taken from appellants' brief. ordinarily control over distances from corners

The field notes of section 12 are as follows: to creeks or roads. Distances called for from corners to creeks

"Survey No. 12. or roads, unless specially designated in such manner as to show the intention to make them "The State of Texas, County of Sabine. locative, are not such, and will not ordinarily "Field notes and plat of a survey of 640 a. have precedence over a call for courses and of land made for the Texas & New Orleans distances.

Railroad Company by virtue of land scrip No.

820 issued to said company by Wm. S. Hotch3. Boundaries am 37(3)-Evidence held insuf-kiss, commissioner of claims, at Austin, Texas,

ficient to sustain verdict in boundary line February 13, A. D. 1861. suit.

"Said survey is situated upon the waters of In a boundary line suit, where the natural Tebo & Housen Bayou beginning at the southand artificial objects called for in the original east corner of survey No. 11, at a stake from field notes could not be found on the location which a pine 8 in. dia. bears north 5 vrs, and of the boundary line as contended for by de- pine N. 40 deg. E. 4 vrs. fendants, evidence in behalf of defendants that “Thence S. 9 deg. W. 980 vs. to branch their surveyor located the fourth corner and 1 vrs. bears S. E. 990 vs. to black gum 10 in. defendant's line by a passing call from the fifth line tree 1,480 vrs. intersected the north boundcorner of the survey to the branch or creek not ary line of John Clark's league for second corshown to be intended as locative evidence ner a stake from which a red oak bears N. 79 held insufficient to sustain a verdict for defend- deg. E. 2 varas dist. and a post oak N. 75 deg. ant.

E. 3 yrs. dist.

"Thence with John Clark's north boundary Appeal from District Court, Sabine Coun- S. 85 deg. W. 400 vs. to an old corner of ty; V. H. Stark, Judge.

Robert Roundtree's survey-1,600 vs. to the

northwest corner of Jobn Clark's league stake Trespass to try title by the Southwestern and mound, from which a pine 20 in. dia. bears Settlement & Development Company and S. 83 deg. E. 3 vrs. and a sweet gum 10 in. others against Charley Stanburg and wife. bears S. 25 deg. W. 4.6 vrs. dist. Judgment for defendants, and plaintiffs ap

"Thence with John Clark's western line S. 5 peal. Reversed and remanded.

E. 810 vs. to fourth corner a stake, from which

a pine 12 in. in diameter bears N. 13 deg. E. Kennerly, Lee & Hill, of Houston, and 3 vs. and a pine 10 in. dia. south 6 vs. Hamilton & Hamilton, of Hemphill, for ap "Thence north 81 deg. west 546.5 vs. to fifth pellants.

corner on the east boundary of survey No. Jas. G. Barker and E. P. Padgett, both

a stake from which a pine bears S. 85 deg. of Hemphill, for appellees.

E. 5 vs. and a 'pine S. 22 deg. W. 8 vs.

“Thence N. 9 deg. E. 257 vs. to branch 1

vara bears 487 vs. to old road, 1017 vs. branch WALKER, J. This was a boundary line 1 vrs. wide, bears east, 1027 vs. pine 10 in suit instituted by appellants against appellees line tree, 1,631 vrs. to the southeast corner in the form of trespass to try title, and in of survey No. 9; thence along the east boundwhich appellees answered by a plea of not ary line of survey No. 9 1,021 vrs. intersected guilty.

the southwest corner of survey No. 12. (total The question involved was the true loca-l length of this line being 2,652 to fifth corner) tion on the ground of the south boundary line a pine 6 in. bears marked X from which a pine. of Texas & New Orleans section 12, in Sabine bears N. 10 deg. E. 3 vrs. distant 4 vs.

"Thence S. 81 deg. E. along the east boundcounty, Tex. Appellees contend that this line ary of survey No. 11, 1,900 vs. to the place of is located 222 varas north of the north line

beginning of the Jacks survey, and on this theory they “Bearing trees all marked X. purchased from the state, as vacant land, l "Surveyed October 21, A. D. 1873."

now

(248 S.W.) All parties agree as to the location on the section showing the location of the south ground of the first, second, and third corners boundary line as now contended for by apcalled for in the field notes.

pellants. Section 12 is short in area, even Appellants offered two witnesses, compe. when the south line is located according to tent surveyors, who testified that the fourth appellants' contentions. Appellees' contencorner in the field notes was found by them tions would further reduce its area. Appelon the west line of the John Clark, as called lants locate the southeast corner at a disfor, at a point 802 varas south 5° east from tance of 802 varas from the third corner. the third corner of the field notes, which cor- Appellees locate that corner at a distance of ner is also the northwest corner of the John 573 varas from the third corner. From its Clark. The bearing trees called for were reld notes the line should be $10 varas. As not found, but they found stumps, which they appellants locate the fifth or southwest coridentified as being the stumps of the old bear- ner, the west line is short about 58 varas. ing trees on the course and distance called On appellees' location it would be short about for. They ran the south boundary line from 250 varas. The original field notes call for that point north 82° west, instead of north the west line to cross only two branches. 81° west, as called for in the field notes, and On appellants' contention this line found an old marked line. On this line was crosses five branches, and on appellees' conan old bearing tree, which another witness of tention it crosses four branches. appellants had known and recognized as a We believe the following statement reflects boundary tree on this line for more than 40 all the facts and circumstances relied on by years. At the intersection of the line run appellees to sustain their contention. Beby appellants' surveyors with the east line of ginning at the southwest corner of section 12, section 10, they found a corner of long stand that is, its fifth corner, its west line calls to ing, but did not find the bearing trees called run north 9° east, 257 varas to a branch. for in the field notes.

No evidence was offered to identify any one One of the original chain bearers testifiea of the many branches on the west line with for appellants, and located the south bound this passing call, but the county surveyor ary line of section 12 and its fourth and fifth found a branch on the west line which he corners in accordance with appellants' con- assumed to be the branch called for by the tention.

original surveyor, and from there surveyed The official maps of Sabine county have south 9° west 257 varas, and located the shown a vacancy between the south boundary southwest corner of section 12, Then he ran line of section 12 and the north boundary live on the calls for course, as made in the origof the Jacks, but the north boundary line of inal field notes, to the west line of the John the Jacks calls to run with an old line-now Clark, thus establishing the southwest corner identified as the south boundary line of sec- of section 12, its south boundary line, and its tion 10—to "an old corner,” now identiñed as southeast corner. At neither corner did he the southeast corner of section 10; "thence find any of the bearing trees called for in the S. 9 deg. W. 55 yrs. to stake for corner; original field notes, nor did he find any evithence S. 81 deg. E. 594 yrs. intersected the dence of any old line where he located the west line of the John Clark league." If south boundary line. At the southwest corthis call were correct, there would be a ner he found an old pine knot, but the evivacancy between the Jacks and section 12, dence was clear that it was placed there in even when that section is located accord- 1917, and had no relation to anything called ing to the contention of appellants. In plat- for in the original field notes. There was no ting the Jacks, the land office located it in indication of marked corner corresponding to accordance with the call as just given, but, the fourth corner of the original field notes on the record as now before us, it appears at any place on the east line of section 12, that the parties to this appeal recognize that north of the location made by appellants. this call should read “north 9 deg. east, 55 The county surveyor, in locating the vacancy. varas," and thence on the proper call to the did not survey all of section 12, nor did he west line of the Clark.

If the north line of survey any of its surrounding surveys. In the Jacks is thus located, it is practically fact, as we understand his testimony, the coincident with the south line of section 12 work in locating the vacancy must rest absowhen located according to appellants' con- lutely and entirely on his assumption that

the branch at which he began his work was The official map of Sabine county, made the branch called for in the original field subsequent to the patenting of the supposed

notes. He did not even survey the west line Facancy to appellees, locates the Charley to verify this passing call in connection with Stanburg claim as shown by the old maps, make clear what he did, we quote from his

the other passing calls on that line, but, to thus placing it on the map almost entirely south of the location made by Stanburg on

testimony as follows:

"As to whether or not the only thing I had The surveyor who made the field notes to to determine a yacancy down there from was section 12 attached to his report a plat of the I found a little branch, and I measured off

tentions.

the ground.

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257 varas from that branch, and just marked, the line "EI" on the map offered in evidence, off a vacancy in there containing 23 acres, will same being the location of same as claimed by say I had the field notes from the land office plaintiffs, or did he locate it at the line located calling for the branch 257 varas north 9 east by the line "FH,” same being the location of from that corner.

If I had gone all same as claimed by defendants? You will anaround section 12, and everything else fit ex swer this question by filling in the blank in the cept that call for that branch, it would have form submitted to you for the verdict the been natural for me to reject that one call words 'As claimed by plaintiffs,' or the words and establish that survey as called for by 'As claimed by defendants,' as you may deterHankla. That is the thing I would have done. mine." I would take the most reliable calls and reject those that are less certain. If they had Their answer was as follows: asked me to run out all of T. & N. 0. section

"As claimed by the defendants." 12, it is possible that I might have arrived at a different result. “If it had not been for that little branch out

Opinion. there that I thought Hankla called for, I would [1] It is the well-established rule in this have had to survey out the whole of section state that generally the natural and artificial 12.

objects called for in the field notes of a sur“In locating the northwest corner of the vey are of controlling importance in locating Stanburg claim, I started 257 varas from a it on the ground; but, when such objects canbranch. If I have the correct branch that is called for by Mr. Hankla, that branch ought not be found, nor their previous location acto be 1,017 varas from the next branch, ac- counted for, the survey should be located by cording to the field notes of T. & N. 0. section the calls for course and distance. Houston 12. I don't know whether it is in fact 1,017 Oil Co. v. Choate (Tex. Civ. App.) 215 S. W. varas from the branch that I located to the 122; Jones v. Andrews, 72 Tex. 18, 9 S. W. next branch going north or not. According to 170. In this case the natural and artificial this plat, there are four or five branches on the objects called for in the original field notes west boundary line of T. & N. 0. section 12. to section 12 at the fourth and fifth corners There is no branch just 70 varas north of the

were not found on the location of the south branch I located. There is a branch 257 varas north 9° east from the northwest corner of the boundary line, as contended for by appellees. Stanburg survey, and that is the only branch Nor was anything found north of the location between that point and the N. M. Jacks corner. contended for by appellants, correspondIf there is another branch just above that ing to nor explaining such calls. The county branch I never saw it. As to whether there is surveyor, in locating the fifth corner of seca branch just a short distance, about 70 varas tion 12, thereby locating the south boundary north of the branch I located, will say, the line, and also its fourth corner, was controlfirst branch is the one I was instructed to go led altogether by the passing call on the fifth to, and I went south 9° west 257 varas, and I line for the branch one vara wide, north 9° was at the southwest corner of 12. I know

east 257 varas from the fifth corner. The that was the branch called for, because it was

call for this branch was in no sense locative, the only branch north of that corner. I never made a complete survey of T. & N. 0. and, as we construe the calls of the field notes, section 12. I stated that I found a black gum was merely an incidental call. According and sweet gum at the southeast corner of sec to the testimony of the county surveyor himtion 10. I did not have the field notes of sec- self, it does not appear that the branch setion 10 with me. I don't know whether those lected by him was located by the other passare the ones called for in the field notes of ing calls on the west line, nor by the call section 10 or not, except by the map. The for the northwest corner, which was well map does not give the bearings; I just took the known. He made no effort to identify the bearings of that line--the cutting-and it was the south line of 10. I did not survey it out.” passing call for the branch by checking it

with the other calls. As we understand the A map of section 12 and its surrounding les for construing field notes, at least on surveys was offered in evidence, showing sec- the showing made in this record, the call tion 11 on the north, the John Clark on the : for the branch should be given but little, if south and east, the Jacks on the south, and any, probative force, and is secondary in sections 10 and 9 on the west. On this map importance to the call for course and diswas also shown the supposed vacancy marked tance. “Stanburg claim." The south boundary line [2] As said by our Supreme Court in Jones of this claim was marked "EI," being the v. Andrews, supra: south boundary line also of section 12 as

"Distances called for between corners to contended for by appellants. The north

creeks or roads, unless specially designated in boundary line was marked “FH.”

such manner as to show the intention to make The case was submitted to the jury on the them locative, are not such, and will not ordifollowing special issue:

narily have precedence over a call for course “Did the surveyor, Hankla, when he made and distance." the corrected field notes of section 12, T. & N. 0. Railway survey in 1873, locate the same Therefore it follows, on the showing made

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(248 S.W.) that course and distance from the third cor-,3. Carriers Om 229(4)--Notice to station agent ner of the original field notes should prevail that cattle delayed in transit had been dipped in locating the fourth and fifth corners and

in arsenical solution held notice to carrier. the south boundary line over the passing or Notice to a carrier's station agent, whose incidental call for the branch on the west duty it is to unload and care for cattle delayed line.

in transit, that they had been dipped in an arNow, when we look to the evidence offered senical solution as required by the tick eradi

cation law and would likely be injured if not by appellants in support of their contention, properly sheltered and cared for, was notice to it is all but conclusive that they have sustain the carrier, though the cattle were not at his ed their location. Two competent surveyors station, but at a nearby station, with which testitied to finding evidence of the old bear- he had been twice in connection by wire or ing trees at the fourth corner. An old line phone on the day they were unloaded. was found identified by the old citizens as 4. Carriers cm229 (4)-Evidence 13–Carbeing the south boundary line.' One of the

rier charged with notice of dipping of cattie original chain bearers sustained appellants' shipped, and effect thereof; common knowi. contention. On the call for course and dis edge of effect of exposing cattle to heat imtance the east line, as run by appellants, was mediately after dipping. only 8 varas short, while the west line, in a In view of the tick eradication law, requirdistance of 2,652 varas, was only about 58 ing both the shipper and carrier of livestock, varas short.

under a threat of penal prosecution, to dip all [3] In our judgment, appellants' assign- stock transported in an arsenical solution, noment that the verdict of the jury is without tice by the shipper to the carrier that cattle support in the evidence should be sustained; delayed in transit had been dipped in such solubut , if we give due probative force to all the tion immediately before shipment and would

likely be injured if not properly sheltered and facts and circumstances offered by appellees, cared for is unnecessary to render the carrier the overwhelming weight and preponderance liable for injuries resulting from failure to of the evidence against appellees' contention properly shelter, feed, and water them, for is so strong that the verdict of the jury must the law requires the carrier to have notice of be held to be clearly wrong. We do not the dipping, while, as a carrier, it is charged render judgment here for appellants, but, if with notice of the effect thereof, it being a on another trial the evidence is, in effect, as matter of common knowledge that injury will it is on this appeal, the trial court should result from exposure of cattle to heat imme

diately after such dipping. instruct a verdict for them. Reversed and remanded.

5. Carriers 215(1)-Carrier held liable for

full amount of negligent injury to cattle, though concurring cause was act of God or contract limited liability.

In absence of contributory negligence, a carrier is liable for the full amount of injury

caused by failure to properly shelter and care ST. LOUIS SOUTHWESTERN RY. CO. OF for dipped cattle delayed in transit, though the TEXAS v. CULBERSON. (No. 6530.)

concurring cause was an act of God, or lia.

bility was limited by contract. (Court of Civil Appeals of Texas. Austin. Jan. 10, 1923. Rehearing Denied

Appeal from District Court, Coryell CounFeb. 14, 1923.)

ty; J. R. MeClellan, Judge. 1. Carriers 229(4)--Not liable 'for station Action by Dave H. Culberson against the agent's failure to notify train dispatcher of St. Louis Southwestern Railway Company possibility of special damage from contem- of Texas. There was a judgment for plainplated shipment.

tiff, and, from an order overruling a motion A carrier is not liable for a station agent's for new trial, defendant appeals. Affirmed. failure to give notice to a train dispatcher in the employ of the same company of some spe

S. P. Ross, of Waco, for appellant. cial damage that might arise from a contem

T. R. Mears, of Gatesville, for appellee. plated shipment of cattle, that being beyond the scope of his duties.

BLAIR, J. This suit was instituted by

Dave H. Culberson against the St. Louis 2. Appeal and error w 1042(4), 1056(5) Southwestern Railway Company of Texas, to Failure to strike improper allegations and

recover damages, alleged to have resulted exclude testimony thereunder held not rever

to appellee's 132 head of cattle through the

alleged negligence of appellant while transIn the trial of a case before a judge with porting same over it's line of railway from out a jury, failure to strike improper matters from the pleadings and exclude testimony in- Fort Worth, Tex., to Oyleshy and Gatesville, troduced thereunder is not ground for reversal, Tex. Some of said cattle were killed in transwhere the finding of facts indicates that the it, others died shortly after arrival because court was not influenced thereby.

of alleged injuries sustained during shipFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

sible error.

ment, and all were alleged to have been in-, Fé notified the Cotton Belt Railway Company jured by the negligence of appellant, by rea- at McGregor that said shipment of cattle were son of being kept in open pens and exposed being handled from Cleburne to McGregor, to the sun for a considerable period of time Tex., by a local and would not arrive there un

til 4:45 p. m. May 29, 1920. shortly after their being dipped in an arsenical solution, as required by law, before rive at McGregor, Tex., at 4:45 p. m. May 29,

"I further find that said cattle did in fact arshipment; and further because of the fail. 1920, and were unloaded in the Cotton Belt ure of the company to properly feed and stock pen about 6 o'clock same day. water said cattle while they were in its pens "I further find that the stock pens that said ať McGregor, Tex.

cattle were unloaded in at McGregor were open The defendant answered by general demur- pens, without shelter and shade, and that the rer and special exceptions, which were over

water trough in said stock pen was in or ruled by the court; and iť further denied its near the corner of the pen, and was in a bad, liability of any negligence complained of.

leaky condition and that said water trough The case was tried before the court within the stock pens at McGregor, Tex., was in

such condition that said cattle were not propout a jury, and the judge, upon the requesterly watered, and that the cattle were fed at of appellant, filed his finding of facts and McGregor by an employee of the Cotton Belt conclusions of law, and based thereon his Railway Company 800 pounds of shucks Saturjudgment for appellee for the sum of $785, day evening and 800 pounds of shucks Sunday and costs of suit. Appellant filed its motion evening, together with a couple bales of hay; for new trial, which was overruled by the and I find as a matter of fact that said cattle court, and it appeals. There being no ob- were not properly fed nor watered nor shelterjection by either party to the finding of facts ed, nor cared for at McGregor, Tex., after be

ing received by the Cotton Belt. by the trial judge, we adopt the same as our "I further find as a matter of fact that said own. They are as follows:

cattle were not properly handled by, the Santa Be it remembered that, at the conclusion

Fé Railway Company in receiving said cattle of the trial of the above-numbered cause, coun: Tex., and holding said cattle until 12:45 a. m,

on their cars at 6 o'clock p. m. at Fort Worth, sel representing the defendant requested the May 29, 1920, and in leaving and switching said court to make bis findings of facts and con- cattle off at Cleburne, Tex., and in handling clusions of law and file same in this cause, them in a local train to McGregor, Tex. and in compliance with said request I make and file the following as my findings of facts Company was negligent in its handling of said

"I further find that the Santa Fé Railway and conclusions of law in this case:

"I find as a matter of fact: That the plain- cattle in receiving the same at 6 o'clock May tiff in this case, Dave H. Culberson, on or

28, 1920, and keeping same standing in the about the 24th day of May, 1920, purchased

stock cars until 12:45 a. m. May 29, 1920, and in the cattle in question here in Fort Worth, starting the shipment of said cattle on a fast Tex. That at the date of their purchase that in time for said cattle to have been delivered

train out of Fort Worth that passed through said cattle were in good condition. That said cattle were dipped twice in an arsenic solution to the Cotton Belt previous to the time that as prescribed by law previous to the time that its freight train passed through McGregor, gothey were delivered to the Santa Fé Railwaying toward Oglesby and Gatesville, Tex., and Co:npany for shipment. That said dippings were negligent in failing to deliver said cattle were seven days apart, and that, during said with the train that they left Fort Worth attime, said cattle were properly handled, prop-tached to, and were negligent in starting said erly cared for, and properly fed and watered: cattle on said train and switching them off at and that the cattle in question were delivered Cleburne, Tex., to be picked up and handled by to the Santa Fé Railway Company on May 28, a local tram, and that, at the time said cattle 1920, in good condition. That said cattle were

were delivered to the Cotton Belt Railway delivered to the Santa Fé Railway Company Company at McGregor, a portion of said cattle about 8 o'clock p. m. in good condition. That were then injured. said cattle left Fort Worth at about 12:45 a. "I further find that the St. Louis Southwestm. May 29, 1920. That said shipment of cattle ern Railway Company was negligent in placing were pulled to Cleburne, Tex., and there left said cattle in their open exposed pens after until 8:30 a. m. Said cattle arrived at Cle- they had been notified by the plaintiff through burne at 2:30 a. m. Tbat said cattle were their agent, J. R. Curtis at Gatesville, that handled from Cleburne to McGregor on a local said cattle had been previously dipped twice train, arriving at McGregor at 4:15 p. m. on and would likely be injured if not properly May 29, 1920, and left Cleburne at 8:30 a. m. sheltered and cared for, and that the St. Louis on same day.

Southwestern Railway Company of Texas was "I further find that, when said cattle were negligent in failing to water and properly feed delivered to the Santa Fé for shipment at Fort said cattle and properly shelter and care for Worth, the Santa Fé at Fort Worth notified same while in their possession. the Cotton Belt Railway Company at McGregor "I further find as a matter of fact that, at the that said cattle were in transit and would be time the St. Louis Southwestern Railway Comthere in time for the freight going toward pany of Texas loaded said cattle on their train Oglesby and Gatesville on May 29, 1920. to be shipped to Oglesby and Gatesville on May

"I further find that, after said shipment of 31, 1920, that said cattle were in a damaged cattle had been switched off at Cleburne by the and injured condition; that some of said cattle

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