Bohny v. Petty

• Decision Date: 23 June 1891
• Citation: 17 S.W. 80
• Parties: BOHNY v. PETTY.
• Court: Texas Supreme Court

17 S.W. 80

BOHNY v. PETTY.

Supreme Court of Texas.

June 23, 1891.

Commissioners' decision. Section A. Appeal from district court, Cooke county; F. E. PINER, Judge.

Trespass to try title to land by W. P. Petty against H. G. Bohny. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.

Davis & Garnett, for appellant. Potter, Potter & Eddleman, for appellee.

COLLARD, J.

This suit was brought in the district court of Cooke county on the 20th day of March, 1888, in form of trespass to try title by the appellee, W. P. Petty, against the appellant, H. G. Bohny, to recover 7 by 100 feet of land in Gainesville, Tex. Bohny answered not guilty by pleas of limitation, five years, and improvements made in good faith. There was a verdict and judgment for Petty, May 5, 1888, for the land, and for Bohny for improvements, and the latter appealed.

The controversy grew out of the following transaction: On March 5, 1873, one N. T. Bomar owned a certain two acres of land in Gainesville, bounded on the north by Gorham street and on the east by Commerce street, formerly Dyestreet. On that date he conveyed to J. T. Rowland a strip 100 feet wide off the north side of the tract, — that is, beginning at the north-east corner of the tract, thence south 100 feet, thence west 178 feet, thence north 100 feet, and thence east 178 feet, to the beginning. March 11, 1873, Rowland conveyed to W. E. Fletcher the south half of the strip, — that is, a strip 50 feet wide, — Fletcher conveyed the same to Lewis Broadwell, October 5, 1877, and Broad well conveyed it to W. P. Petty, February 5, 1879. Petty conveyed to B. Sommer, April 20, 1887, and a short time before the institution of this suit Sommer's vendee reconveyed the strip to Petty. On March 19, 1873, Rowland conveyed the north half of strip bought by him from Bomar to F. Y. Hall; Hall to R. S. Rollins, October 20, 1873; Rollins to M. Kahn, April 16, 1879; Kahn to J. T. Walker, May 29, 1879; and Walker to Bohny, December 23, 1882. The north-east corner of the strip bought by Rowland from Bomar is identified by an old hedge where the west line of Commerce street intersects the south line of Gorham street, but there are no other marks, corners, or lines to identify the original strip sold to Rowland, or the subdivisions of the same. The deeds call for course and distance, only designating the known north-east corner. At the time Bomar sold off the strip to Rowland he had the whole of his two acres fenced, and after the sale he moved his north fence down south to what he supposed was 100 feet running east and west. Soon after Petty became the owner of the south half of the Rowland strip, in 1879, one Blackwood, acting for Petty, built a fence around what he supposed was the Petty lot. When he commenced to build the fence he went to Bomar and asked him where Petty's south line was, and Bomar said it was at his (Bomar's) north line of fence, and that, if it was not right, "we could make it right." Blackwood then measured off 50 feet north of Bomar's fence, and built Petty's north string of fence at that point. The truth was that Bomar's fence was 7 feet too far south, and this led to the placing of Petty's north fence the same distance too far south. When Walker bought the north half of the Rowland strip, Petty's lot was inclosed, as above stated, with a plank fence; the rest of the land on the north was not inclosed. He commenced to improve in 1880, moved a residence on the same, and inclosed it, joining fences with Petty by his permission. He says: "When I fenced my lot I found I had too much ground on the south." Before he sold to defendant. Bohny, in 1882, they went and looked at the lot, Petty's north fence being the division line. He (Walker) told Bohny there was too much land in his inclosure, 4 or 5 feet in excess of 50 feet, — and that he thought the north fence might be 4 or 5 feet too far north, and take in a part of Gorham street. He (Walker) did not know, and "never once thought" that Petty had any land north of his fence, — thought he had all his land inclosed with his fence. "I supposed Petty's north fence was on his north line, but never heard him say anything about where his north line was. I fenced it all in, thinking I would get that much more if nothing was ever said about it." Petty always supposed that the fence he built was on his north line until about July, 1887. He did not tell Bohny he had too much land in his inclosure because he did not know it. The north fence of Petty was regarded by him and Walker and Bohny as the division line between them up to July, 1887. After buying the land of Walker, Bohny placed some improvements on the disputed seven feet, a chicken-house, and a water-closet, and planted three cedar trees five years old at the time of the trial, a catalpa tree, some rose bushes, and shrubbery. He also several times repaired parts of the division fence, and thought it was the line. He built a bakery and a store on the lot north of the disputed seven feet in the north-east corner of his lot, and has lived on it since his purchase from Walker. Bomar has never claimed any land north of his north fence. He testified that when Blackwood came to build Petty's fence something was said about his north fence being the line, "and I told Blackwood it made no difference whether it was the right line or not; that we would let my north fence be the south line of Petty's lot and the north line of my lot."

The court instructed the jury that plaintiff had shown a good title to the lot described in his petition, unless he had lost the same by his own acts and omissions, as would be afterwards explained, and that defendant had shown a good title to the lot conveyed in the deed of Walker to him, described as beginning at the northeast corner of a two-acre tract heretofore...