Brewer v. Doose

• Citation: 146 S.W. 323
• Parties: BREWER v. DOOSE et al.
• Decision Date: 14 February 1912
• Court: Court of Appeals of Texas

146 S.W. 323

BREWER v. DOOSE et al.

Court of Civil Appeals of Texas.

February 14, 1912.

Rehearing Denied April 17, 1912.

Appeal from District Court, Runnels County; John W. Goodwin, Judge.

Action by Joshua Brewer against G. A. Doose, Runnels County, and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded as to all defendants except Runnels County, and judgment in its favor affirmed.

C. L. McCartney, of Brownwood, for appellant. Smith & Wade, Stone & Wade, Harris & Harris, C. H. Willingham, and J. I. Guion, all of Ballinger, for appellees.

RICE, J.

This suit was brought by appellant, as plaintiff below, against appellees as defendants, to recover two strips of land claimed to be off of the west and south sides of survey No. 40 in block 62, in the name of H. & G. N. R. R. Co. in Runnels county, Tex., alleging that said survey belonged to him, and that appellees had ejected him from the possession thereof. Defendants denied that either of said strips of land constituted any part of said survey No. 40, but alleged that the strip sued for as being on the west side of 40 was on survey No. 440, and the strip sued for as being on the south side of 40 was out of survey No. 39, each of which belonged to them. Defendants further pleaded an estoppel by acquiescence and an agreed line; and Runnels county, one of the defendants, answered that a portion of said strip belonged to it, upon which a public road had been laid out and established, it having purchased the same from appellant and paid him therefor. There was a jury trial resulting in a verdict and judgment in behalf of appellees, from which appellant has prosecuted this appeal. So that the issue presented is one of boundary and involves the location of the east line of survey 440, the north line of 39, and the west and south lines of 40. The field notes of 440 which were in evidence call for bearing trees at its southwest and northwest corners, but no object is called for as identifying either the northeast or southeast corners of said survey. Survey No. 40 calls to begin at the southeast corner of No. 440, and runs thence north with its east line 2,951 varas for its northeast corner; but there are no objects called for as fixing either or any of the corners of said survey No. 40, and its west line is coincident with the east line of No. 440 and its south line with the north line of 39.

As stated by appellant, the issue is as follows: If survey No. 440 be run out the course and distance from its northwest corner as established by its bearing trees for that corner east and south, its east boundary line will be as claimed by appellant; but if said east line be run south from the rock pile in the Ballinger and Wingate road, shown by general reputation to have been the northeast corner of said survey, then the east line of said survey will be as claimed by appellees. Each of these issues found support in the evidence, and upon them the court instructed the jury as follows: "You will therefore determine from the evidence where the true eastern line of survey No. 440 and the south line of survey No. 40 are situated according to the field notes set out in the respective grants of said surveys; and if possible you will ascertain the lines of said surveys as made by the surveyors who made them. Where the lines of a survey have been actually run upon the ground and the corners established, those, if they can be found, constitute the true boundaries of the land, and if they or enough of them, are shown by the evidence, so as to establish to the satisfaction of the jury the true location of the land, these must be respected by the jury and must not be departed from or made to yield to course and distance or any other less certain matter of description. Where the evidence fails to establish to the satisfaction of the jury the location of the land described in the field notes by natural objects called for and found on the ground or corners appearing on the ground, or by evidence of enough of them to reasonably identify the land to the satisfaction of the jury, then it will be the duty of the jury to ascertain said lines in controversy by the field notes of the surveys in controversy as set out in the patents, according to the following rules." Then follows the usual rules as to dignity of calls.

These sections of the charge are made the basis of the sixth and seventh assignments of error, on the ground that they impose a greater burden upon plaintiff than the law requires, in that said portions of the charge required the plaintiff to establish his case to the satisfaction of the jury, before they could find for him. Appellant contends in his argument that these charges, in effect, required the jury to be satisfied from plaintiff's standpoint that the two trees which he claims marked the northwest corner of 440 are the original bearing trees marked by the original surveyor, whereas the jury might have believed that the east boundary of 440 was exactly where plaintiff claimed it to be, yet they might not be satisfied of it; and, under this charge, not being satisfied, they were required to discard their belief, however well founded it might be, and proceed to find this line, subordinating course and distance to everything else. We are inclined to think this criticism is well founded. A plaintiff is never required to establish his case to the satisfaction of the jury before he is entitled to recover, but the jury may find for him if they believe from a preponderance of the evidence that he is entitled to recover.

In the case of Baines v. Ullmann, 71 Tex. 529, 9 S. W. 543, Chief Justice Stayton says: "It was not necessary that the evidence should have been sufficient to satisfy the jury of the facts in order to entitle appellant to a verdict; for he would have been entitled to this if upon consideration of all the evidence the jury had been of the opinion that the facts necessary to a recovery by him were established by a preponderance of the evidence. Evidence is said to satisfy the mind when it is such as to free the mind from doubt, suspense, or uncertainty."

In Finks v. Cox et al., 30 S. W. 512, Mr. Chief Justice Fisher, discussing a charge where a similar expression is used as the one here under consideration, says: "The word `satisfied' conveys to the ordinary mind a greater degree of certainty in establishing a right than is exacted by the law in order to permit the one asserting that right to recover, and charges of a similar nature have been repeatedly condemned and disapproved by our Supreme Court." He further says: "It is possible in view of the other charges of the court, that the jury were not misled by this charge; but, in view of the conflict in the evidence, we cannot speculate about this matter, and...