Brown v. Eubank

• Decision Date: 23 April 1964
• Docket Number: No. 23,23
• Citation: 378 S.W.2d 707
• Parties: D. P. BROWN, Appellant, v. Joe R. EUBANK, Appellee.
• Court: Texas Court of Appeals

Page 707

378 S.W.2d 707

D. P. BROWN, Appellant, v. Joe R. EUBANK, Appellee.

No. 23.

Court of Civil Appeals of Texas, Tyler.

April 23, 1964.

Rehearing Denied May 14, 1964.

Luther Truett, Moses & Truett, McKinney, for appellant.

Roland Boyd, Boyd, Veigel & Gay, McKinney, for appellee.

MOORE, Justice.

This is a boundary suit brought in the form of trespass to try title suit.

Plaintiff, Joe R. Eubank, is the owner of a rectangular strip of land containing approximately 84 acres which runs in a north to south direction. Defendant, D. P. Brown, owns land adjoining a portion of the plaintiff's land on the south and also owns land adjoining plaintiff on the east. Plaintiff and defendant fell into dispute over the location of the plaintiff's south boundary line and the location of the plaintiff's east boundary line. Plaintiff, in his trespass to try title petition, describes the boundaries of his 84-acre tract as follows:

'A part of the Samuel M. Rainer Survey, Patent No. 479, Vol. 4, Abstract No--described by metes and bounds as follows:

'BEGINNING at a point in the South boundary line of the T F Roberts Survey, which is 505.38 varas east of the southwest corner of said T F Roberts Survey, and from which point a Sapanish Oak 12 inches in diameter, marked 'X' bears north 2 deg. west 72 links;

'THENCE SOUTH on a line parallel with the west boundary line of said samuel M. Rainer Survey, 1335 varas to stake for corner, from which a cluster of bois d'arc marked 'XXX' bears north 13 deg. East 157 links;

'THENCE West 356.5 varas to stake for corner;

'THENCE NORTH on a line paralled with the west boundary line of said Samuel M. Rainer Survey 1335 varas to a stake for corner in the south boundary line of said T F Roberts Survey;

'THENCE East with the south boundary line of said T F Roberts Survey 356.5 varas to the place of beginning, containing 84.3 acres of land, of which 2.16 acres are in the public road * * *.'

In addition to the above description describing the four boundary lines of the 84-acre tract, plaintiff further alleges that the south boundary line of his tract had been visibly marked on the ground for more than twenty-five years by a distinct turnrow and by a sufficient number of bois d'arc posts to determine the location of the south line. He alleges that the south and east boundary lines between plaintiff's and defendant's tracts of land are more particularly described as follows, to-wit:

'BEGINNING at a bois d'arc post which marks the northeast corner of the Marvin Moore home place; which Moore land is described in deed from Ethel Moore Montgomery et al to Marvin Moore, recorded in Vol. 467, on Page 152 of the Collin County Deed Records, reference to which is here made;

'THENCE East 803.22 feet to a cedar stake 9 about two and one-half feet in length with a diameter of about 1 1/2 to 2 inches 0, which said line is located 26 feet and 10 inches south of the two bois d'arc posts which Defendant placed in Plaintiff's field on April 1, 1960;

'Thence due north to the center line of the public road and continuing in a northerly direction with said center line to a point where said center line intersects the north boundary line of the S. M. Rainer Survey.'

Plaintiff plead the three, five, ten, and twenty-five year statute of limitations. Defendant, D. P. Brown, answered with a plea of not guilty and general denial, and affirmatively plead the three, five, ten, and twenty-five year statute of limitations.

The case was tried before a jury. At the conclusion of the evidence the trial court's charge upon which the jury based their verdict is found in paragraph 9 of the charge as follows:

'You are instructed that the 'land in controversy' means:'

'(a)' (Here follows the same description of the 84-acre tract as was set forth in the plaintiff's petition, quoted hereinabove.)

'(b.)' (Here follows the description of the boundary line as alleged by the plaintiff between the two farms on the plaintiff's south and east, as set forth in the plaintiff's petition, quoted above.)

'(c) You are further instructed that if ownership of any part of the above described two tracts be in dispute same shall be deemed 'land in controversy."

Although paragraph (c), quoted above, refers to two tracts of land, there is only one tract of land involved, the second description in the charge under paragraph (b) being another and different description of the boundary between the two farms where plaintiff alleges they join on his south and east.

In response to numerous special issues pertinent to this appeal, the jury found for the plaintiff on the three, five, ten, and twenty-five year statute of limitations on the 'land in controversy.' The jury found against the defendant on each of his limitation issues.

In addition to those issues, the court also submitted the question of boundary in Special Issue No. 4, which was answered in favor of the plaintiff as follows:

'Do you find from a preponderance of the evidence that a boundary line beginning at a bois d'arc post which marks the northeas--corner of the Marvin Moore homeplace; which Moore land is described in deed from Ethel Moore Montgomery et al to Marvin Moore, recorded in Vol. 467, on page 152 of the Collin County Deed Records, reference to which is here made;

'Thence East 803.22 feet to a cedar stake (about two and one-half feet in length with a diameter of about 1 1/2 to 2 inches) which said line is located 26 feet and 10 inches south of the two bois d'arc posts which defendant placed in plaintiff's field on April 1, 1960; Thence due north to the center line of the public road and continuing in a northerly direction with said center line to a point where said center line intersects the north boundary line of the S. M. Rainer Survey, Abstract No. 740, situated in Collin County, Texas, is the true boundary line on the ground between the Joe R. Eubank land and the D. P. Brown land?

'Answer 'Yes' or 'No'.

'ANSWER: Yes.'

Upon the verdict of the jury, the court granted judgment for the plaintiff, from which this appeal is prosecuted. In his judgment the court granted plaintiff the title and possession of the premises described and bounded as follows:

'Situated in Collin County, Texas, a part of the Samuel M. Rainer Survey, Patent No. 479, Vol. 14 Abstract No. 740 described by metes and bounds as follows:

'BEGINNING at a point in the South boundary line of the T. F. Roberts Survey, which is 148.68 vrs. east of the southwest corner of said T. F. Roberts Survey 'THENCE South on a line parallel with the west boundary line of the said Samuel M. Rainer Survey 1335 vrs to point in north boundary line of the Marvin Moore Homeplace;

'THENCE East with the North Boundary line of the Marvin Moore Homeplace to a bois d'arc post which marks the northeast corner of said Moore farm; which Moore land is described in deed from Ethel Moore Montgomery, et al, to Marvin Moore, recorded in Vol. 467, Page 153 of the Collin County Deed Records, reference to which is here made;

'THENCE continuing on east for a distance of 803.22 feet to a point;

'THENCE due north to the center line of the public road and continuing in a northerly direction with said center line to a point where said center line intersects the north boundary line of the S. M. Rainer Survey, which said line is in common with the south boundary line of the T. F. Roberts Survey;

'THENCE West 356.5 vrs. to place of beginning, containing 84.3 acres of land, of which 2.16 acres are in the public road * * *.'

The evidence shows the land involved to be agricultural land, without a fence between the two farms. Each of the farms are in cultivation with no trees or other natural objects upon the ground, but with only a 'turn row' separating them.

Appellant, defendant below, among other points seeks a reversal of the judgment because the evidence fails to support the verdict and judgment locating with certainty the land upon the ground.

It being stipulated that the plaintiff and defendant owned adjacent lands which at the point of this boundary line dispute they both owned their respective land in fee simple, from the sovereignty of the soil, we believe such a stipulation leaves only the question of the location of the true boundary line to be decided.

Although plaintiff did not plead that his land was adjacent to defendant's land, we believe that in view of this type of stipulation the burden of proof in this instance would rest upon the plaintiff in order to show himself entitled to the relief which he sought in this cause, to prove by competent evidence that the south boundary line of his property was also the north boundary line of the Brown property and that the east boundary line of his property was the west boundary line of the Brown property. Hancock v. Bennett, Tex.Civ.App., 230 S.W.2d 328. At any rate, plaintiff had the burden of locating the true boundary line on the ground between the two tracts, as specifically pleaded by him.

In an effort to prove the lines between the two farms, plaintiff employed Louis Miller, a licensed land surveyor, to establish the lines. Not being able to locate any of the plaintiff's alleged boundary lines to the 84-acre tract because he could not find a beginning place, Miller testified that in order to establish the locations of the plaintiff's south boundary line and the defendant's north boundary line, he went upon defendant's tract of land, lying to the south of plaintiff, for the purpose of establishing the defendant's north line. He testified that he commenced his survey at the intersection of the defendant Brown's west boundary line and a railroad track which ran across the defendant's property; that he proceeded north up the defendant's west property line, which line also was Marvin Moore's east line, for a distance of 2,478.30 feet, as called for in defendant's deed, at which distance he established a point for Brown's northwest corner from which the north boundary line of...