Duff v. Moore

Citations

• 68 Tex. 270
• 4 S.W. 530
• 1887 Tex. LEXIS 679

Syllabus

<p>Subvby.—A survey upon which the patent issued called for the north boundary line of a patented survey, made three weeks before by a surveyor who surveyed both, as its south boundary. This line could not be identified by natural or artificial objects either at its terminations or along its course. The locality of the northern boundary of the junior survey and of the south boundary of the older survey, which lay south of the former, were identified by established corners. Running, each survey from its established corners, according to course and distance, a common boundary was not reached, but a space two hundred and eighty varas wide intervened. In a suit by the owner of the land covered by the junior survey against the owner of the older survey, who was in possession of the disputed strip, held:</p> <p>(1) The rule that a call for the marked line of an older survey will prevail over a call f.or course and distance has no application to an unmarked line whose terminal points can not be identified by natural or artificial objects.</p> <p>(2) If the manifest mistake made in the calls was a mistake in distance, there is no rule of law which, in the absence of evidence, would raise a presumption against or in favor of either survey.</p> <p>(3) The burden of proof was on the plaintiff to show that the patent under which he claimed embraced the land claimed and occupied by defendant; failing in this, the defendant was entitled to judgment.</p>