AYERS V. WATSON, 113 U. S. 594 (1885)

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U.S. Supreme Court

Ayers v. Watson, 113 U.S. 594 (1885)

Ayers v. Watson

Argued November 11, 1884

Decided March 2, 1885

113 U.S. 594


The ruling in Hyde v. Ruble,, 104 U. S. 407, that clause 2, § 639 Rev.Stat. as to removal of causes was suspended and repealed by the Act of March 3, 1875, 18 Stat. 470, reaffirmed.

§ 2 of the Act of March 3, 1875, defining the cases in which causes may be removed from state courts to circuit court of the United States, being fundamental and based on the grant of judicial power, its conditions are indispensable -- cannot be waived -- and must be shown by the record.

§ 3 of that act not being jurisdictional, but a mere rule of limitation, its requirements may be waived.

The party at whose instance a cause is removed from a state court is estopped from objecting that the removal was not made within the time required by § 3 of the Act of March 3, 1875, 18 Stat. 470.

The general rule in Texas for construing descriptions in grants of land is that natural objects control artificial objects, that artificial objects control courses and distances, that course controls distance, and that course and distance control quantity.

A grant of land in Texas was made to the grantor of the plaintiff in error with the following description:

"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� west there is a hackberry 24 in. dia., and 15 varas to the south 34� west there is an elm 12 in. dia.; a line was ran to the north 22� east 22,960 varas and planted a stake in the prairie for the second corner. Thence another line was run to the south 70� east at 8,000 varas crossed a branch of the creek called Cow Creek at 10,600 varas crossed the principal branch of said creek, and at 12,580 varas two small hackberries serve as landmarks for the third corner. Thence another line was run to the south 20� west, and at 3,520 varas crossed the said Cow Creek, and at 26,400 varas to a tree (palo) on the aforesaid margin of the River San Andres, which tree is called in English 'box elder,' from which 7 varas to the south 28�, west there is a cottonwood with two trunks and 18 varas to the south 11� east there is an

Page 113 U. S. 595

elm 15 in. dia. Thence following up the river by its meanders to the beginning point, and comprising a plane area of eleven leagues of land or 275 millions of square varas."

The evidence showed that the lines, when run on these courses and distances, did not coincide with ascertained monuments, either called for in the grant or conceded to mark the track of a survey of the tract made in 1833. Two marked hackberry trees were found in 1854 in the eastern line, but not at the point called for by the description. If the courses and distances were followed, this grant covered most of the claim of defendant in error. If the two hackberry trees found in 1854 were the ones described in the grant, it would not include any of that claim.


(1) That a request by defendant below (plaintiff in error) for an instruction

"that a call for two small hackberries at the end of the distance on the course called for, having no marks on them to designate them from other trees of the same kind and having no bearing trees to designate or locate them, is not a call for such a natural object as will control the call for course and distance, and the jury are not authorized to consider any evidence in this case about two small hackberries found by S. A. Bigham, and by him pointed out to various other persons, which are found more than a mile from the point where course and distance would place the S.E. corner of the 11-league grant"

was properly overruled.

(2) That the jury should have been told

"that if the testimony was not sufficient to identify the two hackberries with those called for in the grant, and could not fix the northeast corner nor the back line by any other marks or monuments, then they should fix it by the courses and distances of the first and second lines of the survey, except that the second line should be extended so as to meet the recognized east line as marked and extended beyond the hackberries,"


(3) That the instructions actually given failed to put this to the jury with sufficient distinctness.

Trespass, to try title. The facts which make this case, both on the jurisdiction of the court and on the merits, are stated in the opinion of the Court.

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