Burnett v. Harrington

• Decision Date: 19 January 1883
• Docket Number: Case No. 1198.
• Citation: 58 Tex. 359
• Parties: WM. BURNETT AND WIFE v. E. H. HARRINGTON AND WIFE
• Court: Texas Supreme Court

58 Tex. 359

WM. BURNETT AND WIFE

v.E. H. HARRINGTON AND WIFE

Case No. 1198.

Supreme Court of Texas.

Jan. 19, 1883.

APPEAL from Harris. Tried below before the Hon. James Masterson.

Injunction suit by E. H. Harrington and Mary Harrington, his wife, against William Burnett and Ben McCarthy, by which they sought to enjoin them from constructing a building or any improvements on a piece of ground adjoining the western boundary line of E. H. Harrington and wife's homestead tract, to a distance of eighty feet therefrom, alleging:

1st. That the same was a street, and was originally dedicated as such by William Burnett, who was the vendor of the land to I. C. Lord, from whom E. H. Harrington and wife purchased the western portion thereof in 1873.

2d. That the same was embraced in their deed and in deed from Burnett to Lord, and that they were the owners of the same, but had always held it as a street, as dedicated by Burnett.

They alleged that the dedication of the same as a street by Burnett, and his representations to that effect, made the land more valuable, and that it would not have been purchased by Lord or by Harrington for the same figure unless it had been a corner lot; that Burnett and Lord did agree as to the location of the west boundary line of the purchase of Lord, he, Burnett, being owner of the space of eighty feet to the west thereof, and that Lord placed his inclosure and built his fences conformably thereto, and afterwards conveyed the same to Mary Harrington, and as a consideration thereof received $2,000; that said Mary's purchase was not worth as much by $1,000 if the open space on her western boundary were used and occupied by said defendants Burnett and McCarthy; that said space was necessary for free access to their premises, and that the building proposed to be erected by Burnett and McCarthy would cut off access and obstruct the proper ventilation of air which they had from said street, and they charged McCarthy with full notice of the street and of appellees' rights.

Burnett and McCarthy demurred, pleaded general denial, and asked dissolution of injunction, and by further plea admitted ownership of the land sued for in Burnett, by purchase from W. D. and M. L. Smith; sale by Lord to Harrington, and purchase by Lord from Burnett, and set up claim to the ground in Burnett as never having been conveyed by him to Lord, and pleaded in reconvention for damages against the Harringtons, and R. P. Snelling and M. C. Wellborn, as sureties on their injunction bond.

Mrs. A. D. Burnett, joined by her husband, William Burnett, intervened and set up her homestead rights, claiming the ground as a portion of the homestead of herself and family, and alleged that if said piece of ground had been conveyed away by her husband, the same was done without her knowledge and consent, and that no conveyance or incumbrance thereon had ever been signed by her at any time.

On July 2, 1879, an interlocutory order, granting a temporary injunction as prayed for, was granted by the court, and the writ was executed on July 3, 1879.

The jury returned the following verdict: “We, the jury, find for the plaintiffs, in accordance with the deed to I. C. Lord by William Burnett, and that it embraces the triangular tract as shown on the plat, and that it is not part of the homestead.”

Upon this verdict the court entered judgment, by which it was adjudged that the plaintiffs (appellees) do have and recover from William Burnett and wife the triangular piece of ground, sixty-two feet on Liberty road, and running back along Harrington's fence one hundred feet, and they were adjudged a writ of possession.

At a later date in the term, to wit, on the 29th day of November, 1879, the following corrected judgment was entered, the motion for a new trial having been heard: “It is ordered and decreed that the judgment in this case be so corrected to read as follows: That the plaintiffs, E. H. Harrington and Mary Harrington, have and recover of defendant William Burnett, and of the intervenor, A. D. Burnett, as and for a public street, the following described land, found by the verdict of the jury, to wit: The triangular piece of ground adjoining the premises of plaintiffs, beginning at the corner of the fence of plaintiffs; thence along the north side of Liberty road fifty-two (52) feet; thence in a northeasterly direction to Harrington's fence, to a point one hundred feet from Liberty road; thence along said fence to Liberty road, the place of beginning.”

From this judgment, after motion overruled and notice given, the defendants and intervenor appealed.

The following errors were assigned:

1. The verdict of the jury is contrary to the law as given by the court, and especially to the second clause of the charge.

2. The verdict of the jury is contrary to the evidence.

3. The verdict of the jury is contrary to the evidence, especially in this, that the proof shows that Burnett did put down a stake or beginning point, and that such beginning point was in fact at the place where Lord put his west line and built his west fence, conformably thereto, and that said lines were actually established by Burnett and Lord, and that Harrington purchased from Lord and went into possession of the western portion of said land so laid out by said Burnett and Lord, and so taken possession of and inclosed by said Lord.

4. The verdict of the jury is contrary to the evidence, especially in this, that the evidence shows that the triangular space, the title to which was in litigation, was a part of the original homestead purchase from W. D. Smith and wife by Burnett, and was under same inclosure, and that it was the only passage way for said intervenor and her husband, said defendant Burnett, and their family from their home on the city side, and that it was necessary for the full enjoyment of the home of the family in getting from and to the house.

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