Statement of the Case.

called for in the grant was some four thousand varas more than the distance called for; that is, the distance is 7500 instead of 3500 vrs.; 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 question, on cross-examination, he said that he did not begin the survey at the southeast corner, but he began at the southwest 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 herein before stated.

"The plaintiff, in rebuttal to Johnson's testimony, 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, Texas, wherein David Ayers was plaintiff and Lancaster was defendant, in which he stated in answer to question therein propounded that he began the Moreno survey at the southeast 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 handwriting 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

Argument for Plaintiff in Error.

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."

Mr. William E. Earle for plaintiffs in error.

Mr. W. Hallett Phillips for defendant in error.

We submit that the deposition of Johnson was properly admitted as evidence to go to the jury with the other evidence in the case, in order to enable them to ascertain the disputed lines of the Moreno survey, which had been run by the party making the deposition.

The precise point was determined in favor of the admissibility of the evidence, by Mr. Justice Field, in delivering the opinion of the Supreme Court of California in the case of Morton v. Folger, 15 California, 275, 277. See also Cornwall v. Culver, 16 California, 423. The rule is well settled in Texas that such a deposition is admissible. George v. Thomas, 16 Texas, 74; S. C. 67 Am. Dec. 612; Stroud v. Springfield, 28 Texas, 649; Welder v. Carroll, 29 Texas, 317; Evans v. Hunt, 34 Texas, 111; Smith v. Russell, 37 Texas, 247; Hunt v. Evans, 49 Texas, 311; Coleman v. Smith, 55 Texas, 254; Tucker v. Smith, 68 Texas, 473.

The record shows that the deposition now in question was taken in a suit wherein David Ayers was plaintiff and Lancaster was defendant. It also shows, by the answer of one of the defendants, that the plaintiff in error, Frank H. Ayers, claims title to the tract in question through David Ayers.

The deposition, it thus appears, was taken in a suit in which the present plaintiff in error, Frank H. Ayers, was in privity with the plaintiff in that action, David Ayers.

Under the rule stated in the cases relied on by plaintiff in error, the deposition was admissible in the present suit. The answer of Anderson containing the statement of the derivation of title, was filed in order to compel his landlord and warrantor, Frank H. Ayers, to come in and defend the title. This Ayers accordingly did and set up title to the land in con

Argument for Plaintiff in Error.

troversy. Hall, another tenant of Ayers, was also a party defendant. He filed no answer and judgment went against him, as of course. He is, however, joined in the writ of error.

The privity being established, it is not necessary that the parties in the two suits should be identical. Phil., Wilm. & Balt. Railroad v. Howard, 13 How. 307.

The depositions of Johnson, made as far back as 1880, at a former trial of the present case, were admitted by the court at the instance of the plaintiff in error. The deposition which he made on the same subject matter in the previous suit, and offered by defendant in error, we submit, was equally admissible.

But what does the deposition objected to contain, and what bearing did it have on the determination of the case? That is the real inquiry.

If the subject matter of the deposition became wholly immaterial in the progress of the cause, its admission cannot support an assignment of error, even if it had been erroneous. The plaintiff in error recognizes this fact, and endeavors to meet it. He says that "the erroneous admission of this evidence led the court below into a string of errors." But when he comes to point out any particular error it will be seen to consist in that portion of the charge of the court which he specifies, as follows: "If, however, in your judgment, the proof in this case is not sufficient to enable you to fix the point where said two hackberries called for in the field notes of the original surveyor stood, and the proof does not satisfy you that the west and north lines were actually run and measured by the original surveyor, you may fix the north line of this grant in either of these two ways, adopting that one of these two ways which, in your judgment, from the proof will so fix said north line as will most nearly harmonize all the calls of the grant with the corners and lines that are established, namely: You may begin at the S. W. corner on the river and find the northwest corner by the course and distance of the first line, and extend the second line for the north or back line so as to intersect the east line (a line run N. 20° E. from the S. E. corner on the river, or you may begin at the S.

Argument for Plaintiff in Error.

E. corner on the river and follow thence the east line N. 20° E. the distance called for in the field-notes for said line 26,400 varas), and as much farther as the proof satisfies you that said line was actually marked on the ground by the original surveyor and at a point beyond which the proof fails to show to your satisfaction that this line was marked by Johnson. You may fix the N. E. corner and thence extend the line N. 70° W. to the west line of said grant as the north or back line of said grant, and if the north or back line as fixed by you does not cut the Daws survey you will find for the plaintiff; if it does cut said survey you will find for the defendant."

The court had, in a previous portion of the charge, directed the jury as follows; no exception was taken to such part of the charge: "In order to reconcile or elucidate the calls of a survey in seeking to trace and fix the lines upon the ground, you are not required to begin at the corner called for in the grant as the 'beginning' corner. The corner so named as the beginning corner does not control more than any other corner actually well ascertained and established, nor are you constrained to follow the calls of the grant in the order that said calls stand recorded in the field-notes, but you may reverse the calls and trace the lines the other way, and should do so if from your view of the proof to so reverse the calls will aid you to so fix the boundaries of the Maximo Moreno grant as will most nearly harmonize all the calls in the grant with the corners and lines that are established, and with the object of the grant."

This portion of the charge, it must be admitted, stated correctly a general rule of law applicable to the case.

The whole deposition of Johnson, objected to, is as follows: "That he began the Moreno survey at the southeast 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 at all, but was left open; but the eastern and northern line were run and measured. It was not usual to measure the closing line."

Nothing said in this deposition, we submit, had any effect

Opinion of the Court.

upon anything material said by the court in any portion of the charge excepted to, nor did its admission in any way harm the plaintiff in error. Whether the east line was or was not the first line run, was immaterial, nor as the court charged were the jury obliged to begin at the corner called for in the grant as the "beginning corner."

The questions arising under the conflict of evidence as to the true location of the northern line of the Moreno survey were properly left to the jury, and the deposition of Johnson did not affect these questions nor add anything to the evidence regarding them.

The points touched in the deposition were not those upon which the case went off, and we submit that its admission neither affected what the court charged nor what it refused to charge.

MR. JUSTICE MILLER, after stating the case as above reported, delivered the opinion of the court.

A very earnest and able argument is presented to us to sustain this ruling, upon the general ground of the liberality of courts in admitting what would be otherwise called hearsay evidence in regard to boundaries, such as tradition, general understanding in the neighborhood, declarations of persons familiar with the boundaries and with the objects on the lines of the survey, and others of similar character. An opinion of Mr. Justice Field, delivered in the Supreme Court of California in 1860, in the case of Morton v. Folger, 15 California, 275, is much relied on in this case, and it is also said that the courts of the State of Texas have established the same principle, which has thus become a rule of property in that State, which should be followed in this case. If the principle stated in the decision of the California court, and in the decisions of the Supreme Court of the State of Texas, were indeed applicable to the case before us, we would hesitate very much in reversing the judgment on this ground, and, indeed, should be inclined, on the weight of those authorities, and in the belief that in the main they are sound, to overrule the exception. But

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