Joseph P. Bradley

“ At the intersection of the back line with the eastern line two small hackberries are mentioned as serving for a landmark to designate the corner. Our purpose and your duty is to follow the tracks of the surveyor, so far as we can discover them on the ground with reasonable certainty, and where he cannot be tracked on the ground, we have to follow the course and distance he gives, so far as not in conflict with the tracks we can find that he made. ”

“ Diverse state citizenship of the parties, or some other jurisdictional fact prescribed by the second section, is absolutely essential, and cannot be waived, and the want of it will be error at any stage of the cause, even though assigned by the party at whose instance it was committed. ”

“ One of them, Frank Ayers, pleaded specially that he was owner in fee-simple of a tract of 11 leagues, granted by the government of Coahuila and Texas to Maximo Moreno, in the year 1833, describing its m tes and bounds; and he alleged that the land described in the plaintiff's petition, and claimed by him under some pretended patent from the state of Texas to the heirs of one W. W. Daws, deceased, was embraced within the boundaries of said 11-league grant, which was an elder and superior title. Anderson pleaded separately that he was occupying the Moreno grant as tenant of Ayers ”

“ And if the proof satisfies you that the two hackberries mentioned in the testimony of the witnesses, Sam. and Pat Bigham, were the two hackberries called for and marked by the original surveyor as a corner of said grant, in that case a line drawn from the point where said hackberry stood, N. 70 W., until it intersects the western line of said grant, will bound the eleven-league grant upon the north, and if the Daws 1/3 of a league is situated wholly north of this line, it does not conflict with said eleven-league grant, and you will find for the plaintiff. ”

“ The first reason has no foundation in fact. The plaintiff's petition demanded the recovery of the land and $500 damages. This was certainly a demand for more than $500, unless it can be supposed that the land itself was worth nothing at all, which will hardly be presumed. The second reason is more serious. The application for removal was beyond question too late according to the act of 1875, though not so under the act of 1866 as codified in Rev. ”