Bingham v. Boles

• Decision Date: 01 July 1970
• Docket Number: No. 6108,6108
• Citation: 458 S.W.2d 99
• Parties: J. P. BINGHAM, Individually and as Representative of Leatha Roberts, et al., Appellants, v. Wayne BOLES and Joe Boles, Appellees.
• Court: Texas Court of Appeals

Page 99

458 S.W.2d 99

J. P. BINGHAM, Individually and as Representative of Leatha Roberts, et al., Appellants, v.Wayne BOLES and Joe Boles, Appellees.

No. 6108.

Court of Civil Appeals of Texas El Paso.

July 1, 1970.

Rehearing Denied Sept. 23, 1970.

Haley & Smith, Stephen L. Haley, Seagraves, for appellants.

Huff & Bowers, Broadus A. Spivey, Mike Thompson, Lubbock, for appellees.

OPINION

PRESLAR, Justice.

This is a case involving a controversy over a boundary line dividing Section 1, Block G, C & M Ry. Co. Survey, from the adjoining Section 21, Block C--31, PSL Survey, Gaines County, Texas.The plaintiff-appellants own portions of Section 1, which borders on Section 21 owned by the defendant-appellees.The controversy arises from the fact that the fence dividing properties of the parties is not located on the section line.This appeal is from an order granting the defendants' motion for summary judgment.We are of the opinion that the judgment must be reversed and the cause remanded for failure to describe the property awarded thereby.

The plaintiffs alleged their title and possession of their properties and the entry thereon by the defendants, and alleged damages for destruction of certain items and for value of its use.Alternatively, they alleged a cause of action of trespass to try title in statutory form, and their prayer was for 'judgment for the title and possession of said above described premises * * *'Defendants answered with a plea of 'not guilty', a general denial, and pleas of various limitation statutes giving them title by adverse possession, followed by their motion for summary judgment.The trial court's judgment, after formal recitations, is in the following language:

'* * * it is ORDERED, ADJUDGED AND DECREED that the Defendants, Wayne Boles and Joe Boles' Motion for Summary Judgment be and the same is hereby granted and that the plaintiffs take nothing by their suit; that the defendants, Wayne Boles and Joe Boles have established title to the land in controversy as a matter of law and all relief prayed for by the plaintiffs is hereby denied * * *' Under the judgment defendants were awarded title to 'the land in controversy'.By the pleadings of the plaintiffs, that would be the North one-half and the Southeast one-quarter of Section 1.By the remainder of the voluminous record before us, the deposition evidence, answers to interrogatories, exhibits, and the briefs of the parties, the 'land in controversy' is a long, narrow strip of land lying between the section line and a fence built in 1914 and never changed or altered during the years except for a foot or two as required because of shifting sand dunes, which fence, prior to suit, was replaced by the defendants with an electric-charge fence.On oral argument we were told that the land in controversy consisted of possibly two or three acres.A legal description, one by which the boundaries could be located on the ground, does not appear in the record as to the land actually in controversy.The judgment does not fix the location on the ground of the disputed boundary, and thus does not dispose of the controversy between the parties.Such a judgment is fatally defective.State v. McHard, 432 S.W.2d 182(ref., n.r.e.);Richardson v. Pavell, 83 Tex. 588, 19 S.W. 262;Permian Oil Co. v. Smith, 47 S.W.2d 500...