Ayers v. Watson (132 U.S. 394)

This is an action of ejectment brought by Watson, the original plaintiff, in the district court for the county of Bell, in the state of Texas, and afterwards removed into the circuit court of the United States for the northern district of that state. It was twice tried before a jury, which failed in each of these trials to come to an agreement. It was tried a third time, which resulted in a verdict and judgment for the plaintiff. A writ of error was taken to that judgment, by which it was brought to this court and reversed. The case is reported as Ayers v. Watson, 113 U.S. 594, 5 Sup. Ct. Rep. 641. It was thereupon remanded to the circuit court for a new trial, where a verdict was again had for the plaintiff, and the judgment rendered on that verdict is before us for review. The details of the controversy may be found in the report of the case above mentioned. While it was pending in the district court of Bell county the following agreement between the parties was made, which simplifies the case very much: 'A. E. Watson v. Frank Ayers et al. It is agreed and admitted by the defendants, for the purpose of this trial, at this term of the court, that A. E. Watson, plaintiff in this cause, is entitled to all the right, title, and interest granted by the state of Texas to the heirs of Walter W. Daws on September 16, A. D. 1850, said land patented being one-third of a league, described in said patent No. 542, vol. 8, and which said land is described in plaintiff's petition; but defendants say that said one-third of a league of land so patented as aforesaid to the heirs of Walter W. Daws is covered by the grant of the government of Coahuila and Texas to Maximo Moreno of eleven leagues of land, as set forth more fully in defendants' petition; which said eleven-league grant is an older and superior title to that of plaintiff's, and the title to which is in the defendants in this cause. X. B. SAUNDERS, W. T. RUCKER, F. H. SLEEPER, and A. M. MONTEITH, Attys for Defendants.'

By this agreement it will be seen that the sole question at issue was whether the land in controversy was covered by the 11-league grant to Maximo Moreno. A plat of that survey is found in the bill of exceptions. On the trial, which resulted in the judgment which we are now called to reconsider, and which, as we understand it, was the fourth time the case had been tried by a jury, the defendant introduced the deposition of F. W. Johnson, the surveyor who had made the survey under the Moreno grant. It seems that his deposition had been taken twice in this action, and, though the details of those trials are not before us, it had no doubt been used in them. But prior to the trial which we are now reviewing he had died. It appears from the bill of exceptions that it these depositions he had been cross-examined by plaintiff's counsel. Plaintiff, in rebuttal to this testimony of Johnson, offered in evidence a deposition of the said Johnson taken in 1860, in a suit between other parties, in which his testimony with regard to the matters to which he testified in the depositions offered by defendant varied materially from these latter depositions. To the introduction of this deposition of 1860 the defendants objected, and, their objection being overruled, took this exception. As we think the judgment of the court below must be reversed on account of this ruling, all that relates to it in the bill of exceptions is here reproduced: 'It was admitted by both parties that the upper and lower corners on the river of the Maximo Moreno 11-league grant are extant as called for in the original grant to Maximo Moreno, and their corners are not in d spute. The defendant read in evidence the depositions of F. W. Johnson, taken in 1878 and 1880, in which he testified that he was principal survey or for Austin's colony. * * * The first survey made was the Maximo Moreno 11-league survey. This survey was commenced at the point opposite the mouth of the Lampasas river, as called for in the field-notes of the grant, and a line was run thence on the course called for in the grant, the distance called for, the chain being used to measure the distance. The north-west or second corner called for in the grant was thus established by him, the distance giving out in the prairie. 'In running the west line I made an offset to avoid crossing the Leon river, which was about 50 or 60 varas wide. This offset was made soon after leaving the beginning corner, there being a peculiar bend in the river at that point. From the north-west corner thus established the second line was run the course and distance called for in the grant. Several streams were crossed on this line at distances not now recollected, and the north-east corner established on two small hackberries in Cow Creek bottom. From the north-east or third corner so established a line was run in the course called for in the grant to San Andres river. This last line was marked, but not measured, because it was not usual or necessary to measure the closing line.' It was admitted by the defendant that the distance as measured on the ground from the north-east corner to a creek called for in the grant was some four thousand varas more than the distance called for,-that is, the distance is 7,500, instead of 3,500 varas; and on cross-examination, being asked to account for the discrepancy, said the distances called on that line were not measured, but guessed at. No part of the east line was measured. The exterior lines were marked with blazes. The corner trees and bearing trees, where there were such, were marked with blazes, with two hacks above and two below. In answer to a question, on cross-examination, he said that he did not begin the survey at the south-east corner, but he began at the south-west corner, at the three forks, at the mouth of the Lampasas, and actually traced the lines in the order set forth in the field-notes. 'The field-book containing the same, which I kept, I examined, which I don't remember to examine until a month ago, and as hereinbefore stated.' The plaintiff, in rebuttal to Johnson's stestimony, as above set forth, it appearing that said Johnson died in 1884, offered to read in evidence a deposition of said Johnson, taken in 1860, in a certain suit then pending in Bell county, Tex., wherein David Ayers was plaintiff and Lancaster was defendant, in which he stated, in answer to a question therein propounded, that he 'began the Moreno survey at the south-east corner, and ran thence northerly. The north line was then run westwardly, and the third, if run at all, was run southwardly to the river. I am of the opinion that no western line was run, but was left open; but the eastern and northern lines were run and measured. It was not usual to measure the closing line.' To the reading of which last-mentioned deposition, proven to be in the hand writing of Johnson, taken in 1860, the defendants objected, upon the ground that the deposition had been taken in another and different cause, between other parties, before the institution of this suit; and, the same witness having testified in answer to interrogatories and cross-interrogatories propounded herein in 1877 and 1880, respectively, it was not competent as original evidence, nor admissible to contradict or impeach the testimony of the witness Johnson, as given in his deposition read by the defendants, notwithstanding the death of Johnson; which objection the court overruled, and admitted the testimony so objected to; to which ruling of the court the defendants then and there excepted, and still except, and the same is allowed as exception No. 1.'

W. E. Earle, for plaintiffs in error.

W. Hallett Phillips, for defendant in error.

[Argument of Counsel from pages 398-401 intentionally omitted]

MILLER, J.