Ayers v. Watson
137 U.S. 584 (1891)

Annotate this Case

U.S. Supreme Court

Ayers v. Watson, 137 U.S. 584 (1891)

Ayers v. Watson

No. 1356

Argued December 4, 1890

Decided January 5, 1891

137 U.S. 584

ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE NORTHERN DISTRICT OF TEXAS

Syllabus

The allowance of an amendment to an application for the removal of a cause from a state Court, if allowable at all, is a matter of discretion, to which error cannot be assigned.

When the monuments and other landmarks upon a tract of land in Texas correspond in part with the field notes of the survey, and in part either do not conform to it or cannot be found, the footsteps of the original surveyor may be traced backward as well as forward, and any ascertained monument in the survey may be adopted as a starting point for its recovery.

A memorandum made by a public surveyor in Texas at the time of the survey, and deposited in the General Land Office at the time when the title was deposited there, is admissible in evidence to aid in proving the actual footsteps of the surveyor when making the survey.

Original field notes of a public surveyor deposited in the General Land Office of Texas are held by the highest court of that state to be competent evidence to identify the granted premises, and this Court, if it doubted as to their admissibility for that purpose, would be largely influenced by such decisions.

A writ of error does not lie for granting or refusing a new trial.

In seeking to trace a survey on the ground, the corner called for in the grant as the "beginning" corner does not control more than any other corner equally well ascertained, and it is not necessary to follow the calls of the grant in the order in which they stand in the field notes, but they may be reversed, and should be when by doing it the land embraced would most nearly harmonize all the calls and objects of the grant.

If an insurmountable difficulty is met with in running the lines of a survey of public land in one direction, and all the known calls of the survey are met by running them in the reverse direction, it is only a dictate of common sense to follow the latter course.

When an instruction asked for has been substantially given, with proper qualifications, it is no error to refuse it.

Ejectment. The case is stated in the opinion.

Page 137 U. S. 585

MR. JUSTICE BRADLEY delivered the opinion of the Court.

This case has been before us on two former occasions, in October term, 1884 (Ayers v. Watson,113 U. S. 594), and in October term, 1889 (Ayers v. Watson,132 U. S. 394). It has had six trials by jury, in three of which the juries disagreed and in the other three verdicts were found for the plaintiff.

The case comes before us, as heretofore, on a bill of exceptions, and the first assignment of error relates to a matter of a preliminary character. When the cause came on for trial, the defendant below, Ayers, asked leave to file an amendment to his application for the removal of it from the state court, for the purpose of making additional allegations as to the amount in controversy, as to the citizenship of the parties, etc. The court refused to allow such amendment, and the defendant excepted to this ruling. The allowance of such an amendment (if allowable at all) is a matter of discretion, and error cannot be assigned upon the decision. When the cause was here the first time, one of the errors assigned was that the court below had refused to remand the cause to the state court. We then held that in this refusal there was no error, and we do not see how this question can be further litigated between the parties.

The principal facts of the case, as elicited by the evidence and shown in the bill of exceptions, are stated in the reports above referred to, and only so much will be repeated as is necessary to an understanding of the points now raised.

The plaintiff, Watson, claimed title to one-third of a league of land situated in Bell County, Texas, being a rectangular tract granted by patent to the State of Texas to the heirs of Walter W. Daws, September 16, 1850, the location and boundaries of which are not disputed, and on the trial it was agreed by the parties that the plaintiff was entitled to all the right, title, and interest granted by said patent. The defendant, Ayers, claimed title under a grant of the government of Coahuila and Texas to one Maximo Moreno, dated October 18, 1883, for a tract containing eleven leagues of land,

Page 137 U. S. 586

and it was admitted on the trial that the defendant held and owned all the right, title, and interest created by the said grant. This being the older title, the verdict should have been for the defendant if he had shown that the Moreno grant covered the Daws tract owned by the plaintiff, and whether it did or not was the question in controversy in the cause. The Maximo Moreno grant lies on the north side of the River San Andres, with a perpendicular breadth, easterly and westerly, of about seven miles, and extending back into the country, north-northeasterly, about fourteen miles. The Daws tract, owned by the plaintiff, is situated near the north end of the Maximo Moreno grant, about midway between the eastern and western lines of the same, and the question is whether the north boundary line of the Maximo Moreno grant is situated so far to the north as to include the plaintiff's land, or whether it runs southwardly of it.

The field notes of the Moreno grant, embodied in the grant itself, are in the Spanish language, and, translated into English, are as follows:

"Situated on the left margin of the River San Andres, below the point where the creek called 'Lampasas' enters said river on its opposite margin, and having the lines, limits, boundaries, and landmarks following, to-wit: beginning the survey at a pecan (nogal) fronting the mouth of the aforesaid creek, which pecan serves as a landmark for the first corner, and from which 14 varas to the north, 59

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