Allen v. Koepsel

• Decision Date: 30 May 1890
• Citation: 14 S.W. 151
• Court: Texas Supreme Court
• Parties: ALLEN <I>et al.</I> v. KOEPSEL <I>et al.</I>

14 S.W. 151

ALLEN et al. v. KOEPSEL et al.

Supreme Court of Texas.

May 30, 1890.

Appeal from district court, Guadalupe county.

Action by John Allen and others against M. Koepsel and others. Defendants obtained judgment. Plaintiffs appeal. For opinion on former appeal, see 4 S. W. Rep. 856.

Goodrich & Greenwood, for appellants. John Ireland, for appellees.

HENRY, J.

This was an action of trespass to try title, brought by appellants, who claimed that the land in controversy formed part of a league granted to Moses Baker. The defendants pleaded not guilty, and the statutes of limitation. The cause was once before appealed to this court, and a statement of it will be found in 68 Tex. 446, 4 S. W. Rep. 856. The land in controversy lies between the Guadalupe river, and a slough lying west of the river. The Baker title calls for the river, but defendants contended in the court below that the surveyor who located it mistook the slough for the river, and meandered that instead of the river. It was reversed on the former appeal because the court charged the jury that they should find for the plaintiffs, if they showed title to the Baker league, unless they should find for the defendants under their pleas of the statute of limitations. The land between the slough and the river was located with a certificate by one Saunders. The defendants undertook to prove title by limitation under the Saunders location, beginning with one Young, who held under him. Subsequently, Young sold his interest to one Thiele, who went into possession, and testified that he held for Saunders, and signed and delivered to him the following instrument: "I have this day taken possession of the tract of land known as the island lying between the Moses Baker league and the river. I am to hold said land for Frank Saunders, free of rent, until such time as he may want it. It is the same land taken possession of by J. W. Young, for said Saunders, April 23rd, 1873. I am to have for my own use any driftwood that I may want, and also to put on it any improvements I may wish, with the privilege of using them, but under no circumstances to cut any timber, or let any one cut. [Signed] WM. THIELE."

The first error assigned is as follows: "The court erred in charging the jury, at request of the defendants, that the lease taken by Thiele from Saunders, and read in evidence, `shows a privity between Thiele and Saunders, and will enable defendants to set up the statute of limitations under the...