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O. W. Ogden, for plaintiff in error.
A. W. Houston, for defendant in error.
Mr. Justice SHIRAS delivered the opinion of the court.
This was an action brought in the circuit court of the United States for the western district of Texas to try the title to a large tract land in the county of Dimmitt and state of Texas.
The New York & Texas Land Company, the plaintiff, based its claim upon patents issued by the state of Texas to the International & Great Northern Railroad Company, and upon certain deeds of conveyance from said company through several parties down to the plaintiff. The defendant's title originated in a grant of land by the state of Texas to the heirs of one Juan Francisco Lombrano. This grant appears to have been made by the state in recognition of a previous Spanish grant made in 1812 to Lombrano, but the defendant, though reading this Spanish grant as evidence on the question of the boundaries of the tract in question, relied wholly on the patent from the state of Texas.
The record presents on question as to the validity of the title [150 U.S. 24, 25] of either party, nor any bill of exception touching the admission or rejection of evidence. It was admitted by the plaintiff that the defendant had a valid title to all of the land included in the Lombrano grant, and that such title was prior in time to that asserted by the plaintiffs. The sole controversy was whether the elder Lombrano grant included the lands subsequently granted to the International & Great Northern Railroad Company. This was the issue that was before the court and jury for determination, and to which the evidence of both parties was directed.
We are not asked by the plaintiff in error to consider the evidence in the cause with a view of determining whether it warranted the jury in their verdict in favor of the defendant. The errors complained of are found in certain portions of the charge of the court to the jury, and our only concern with the evidence is to enable us to perceive whether the court committed error in its instructions to the jury.
The description contained in the Spanish grant, and which is followed in the patent made by Texas to the Lombrano heirs, does not give courses, but the lines are run from one natural object to another. The controverted lines are the southern and eastern boundary lines of the Lombrano grant; that is, the lines called for in the Spanish grant as running from Tasa creek, on the Rio Grande, to the junction of the San Ambrosia and San Pedro creeks, and following up the San Pedro creek and terminating near its head, and the line running from the head of the San Pedro creek to the Carrizo springs.
Several surveys were made, as well under the grant to the Lombrano heirs as that patented by Texas in 1883 to the International & Great Northern Railroad Company. It appears by these surveys, and by the testimony of the engineers who made them, that there were either two creeks used as natural objects in running the lines, viz. San Pedro creek and San Pablo creek, or that one creek was known by different persons, and at different times, by the two names.
In this condition of the evidence the court instructed the jury as follows:
All of these instructions are assigned for error, but the third, fourth, and seventh clauses are those chiefly complained of.
The argument of behalf of the plaintiff in error concedes, in effect, that the instructions do, in a general way, and apparently correctly, state the rules of law pertaining to conflicting boundaries; but it is contended that the instructions given were not fairly applicable to the facts in evidence, and presented the issues to the jury in a manner that must have withdrawn their attention from the real question. This contention of the plaintiff in error may be most favorably stated in the following language of the brief of its counsel:
This criticism assumes that the court instructed the jury that if there was conflicting evidence as to the existence or location of some of the natural objects called for in the respective grants, such objects should be wholly disregarded, and that the verdict should be controlled by the evidence referring to such natural objects as were certain. Such an instruction would, indeed, as argued on behalf of the plaintiffs in error, be equivalent to telling the jury to disregard all evidence in relation to the very object to ascertain the true location of which the proceeding was had, and the mere fact that there was contradictory evidence as to the true location of a boundary line would decide the litigation in favor of the party in possession.
But we are unable to see that these instructions express so unreasonable a proposition. Fairly read, and as the jury must have understood them, we understand these instructions to say, not that if there is conflicting evidence as to certain natural objects the jury should put such evidence and the controverted facts wholly out of view, and look only to other and undisputed facts, but that if, after considering the conflicting evidence, the jury are left doubtful and uncertain, they will be justified in locating the grant by referring to such of the natural objects as are certain. In terms, as well as in substance, the court told the jury that they should determine the true location and name of the boundary creek, as well as all other questions of fact in the case, 'from all the evidence, and by a preponderance of the evidence, wherever the evidence was found to be conflicting.' The seventh instruction was explicit that, 'if you find from the evidence, after applying the evidence to the calls of the patent, that some or any of the natural objects called for are uncertain or doubtful, and some [150 U.S. 24, 30] are certain, the certain ones will govern you in establishing the boundaries of the land.' Plainly, this does not mean that the jury should refuse to consider and weigh the evidence if conflicting, but that if, after so considering it, there should be doubt as to the proper conclusion to be drawn, such doubts might be resolved by referring to natural objects whose location was certain.
These observations likewise dispose of the further contention that the court below erred in instructing the jury that 'from an established point it is competent to reverse the calls if, by so doing, we can better ascertain the true boundary of the grant.' The argument admits that this instruction is formally correct, and only expresses a familiar rule of construction in boundary cases. But, it is claimed that, as the court had instructed the jury to disregard all natural objects with respect to which the evidence was conflicting, the jury could, in reversing the calls, skip or disregard such, and run the lines only by objects in regard to which there was no dispute. But, as we have seen, the court had not instructed the jury to disregard the natural objects as to which there was conflicting evidence, but that, if they were unable to reach a satisfactory conclusion from the conflicting evidence, they should specially regard those facts that were clearly shown. Hence the jury would not, in reversing the calls of the patent, disregard the points and objects in dispute, but would determine 'from all the evidence and by the preponderance of the evidence' the true boundaries of the grant.
We are therefore of opinion that there was no error in the instructions of the court to the jury, and the judgment of the circuit court is affirmed.
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