Cooper v. Austin

• Decision Date: 02 February 1883
• Docket Number: Case No. 1536.
• Citation: 58 Tex. 494
• Court: Texas Supreme Court
• Parties: L. W. COOPER v. WM. AUSTIN.

58 Tex. 494

L. W. COOPER

v.WM. AUSTIN.

Case No. 1536.

Supreme Court of Texas.

Feb. 2, 1883.

APPEAL from Houston. Tried below before the Hon. John R. Kennard.

The opinion states the case.

J. R. Burnett, for appellant.

Nunn, Williams & Corry, for appellee.

I. The verdict determined all the facts essential to a judgment for plaintiff, and entitled him to such judgment, unless there was an express finding of such an agreement as would divest him of his right or preclude him from asserting it. Defendant neither asked for the submission of any other issue or for the enlargement of those submitted. He did not in any way except to the questions submitted by the court or to the answers of the jury, or ask that the verdict be made fuller.

II. The agreement found by the jury was not one having for its subject the land in controversy, which was not then in the contemplation of the parties, but, construed in the light afforded by defendant's plea, the charge and the evidence, was merely an acquiescence in a survey supposed by both to include all the land which plaintiff owned. It could not, therefore, have the effect of a divestiture of title, which neither party intended. 1 Parsons on Contracts, p. 475; 2 Story on Contracts, § 641; Nash v. Towne, 5 Wall., 699.

III. The special charge was proper and necessary to prevent the misleading of the jury, by the general charge, into the belief that they were required under the law to accept the axe concerning which Corley testified as an authentic mark designating the corner, and such charge directed the minds of the jury to the proper mode of determining the question under all the evidence. Bass v. Mitchell, 22 Tex., 285; Castleman v. Ponton, 55 Tex., 88; Bagley v. Morrill, 13 Am. Law Reg. (N. S.), p. 708.

IV. That the verdict cannot be construed as fixing the northwest corner of Corley's tract as one of the corners of the two acres to be surveyed for appellee, but only as a beginning point from which a correct survey might be made, and in this it is amply supported by the evidence. The evidence of both Broxson and Duren was to the effect that this corner of Corley's was an established and recognized point from which the survey could be correctly made. The survey as made by the commissioners and surveyor demonstrated this. As to the testimony about the axe corner, see foregoing statement. The jury, by their verdict, in effect found Broxson's survey to be correct.

V. Appellant should have made his complaint that the verdict, in not finding that the axe was at the corner or initial point, is contrary to the evidence, a ground in his motion for new trial.

VI. Our first proposition, which we make a reply to the sixth and seventh assignments also, is that the verdict being sufficient to establish all material facts to warrant judgment for plaintiff for his proper quantity of land, the court could properly appoint commissioners to carry into effect its decree and to so adjust equities arising out of improvements as to do justice to both parties; and could properly charge the expense as costs.

WEST, ASSOCIATE JUSTICE.

This was an action brought by appellee to establish and fix the boundary line, and to recover of appellant a small part of two acres of land that appellee held by derivative title from A. Voltair and wife, who had in April, 1872, donated the land to the Houston & Great Northern Railroad.

Appellee bought this land probably in December, 1880, though his deed is dated on the 28th day of February, 1881, and previous to the date of this deed, on the 11th of February, 1881, one B. F. Duren had purchased by metes and bounds one-tenth of an acre, being a part of, and in the extreme southern part of this Voltair two-acre tract. The locality of this portion of the two acres owned by B. F. Duren was fixed and determined between Duren and appellee, the sole owners of the said two acres, and was not in dispute, and Duren's part was not contiguous to the land of appellant. Appellee took possession of the part of the two acres that had been set apart to him as between him and Duren, as the record disclosed, in December, 1880, which appears to be before the date of his deed. Duren was also in some manner in possession of his part of the two acres, as may be fairly gathered from the testimony of the witnesses and the plots in evidence.

The suit relates to these two acres as constituting a part of a tract of six and one-half acres formerly owned by A. Voltair and wife, and which adjoins the Page, the J. B. Smith and the Elam or Monroe tracts. Some time between 1860 and 1866, Voltair purchased of one Matlock, and Charles Stokes made a survey for them, and then established on the ground at that time a corner of the Matlock and Voltair survey. Corley, a witness who was present when Stokes made the survey, and who shortly afterwards owned a part of the land adjoining, buried an axe in the presence of Stokes, at that point where Stokes established this corner. The surveyor Duren commenced his work at this axe corner, as the initial point of the Voltair tract, or at least as a known and marked corner. The surveyor Broxson, in making his survey, commenced at another point about fifteen or sixteen varas south from the axe corner, where Duren began. Appellee contends that the point where Broxson commenced was the true and proper point at which to commence the survey. Appellant contends that the axe corner where Duren commenced, and which could be found by reference to a hickory bearing tree called for, was the proper point of beginning; but even if it was not, the appellant contended that both parties after Duren's survey had agreed upon a boundary line, and in consequence of this agreement and as a result of it, appellant had built his house and dug his well and put up his fence with reference to that agreement, and that this agreed line must now stand, whether it be in fact the true line or not.

In April, 1881, appellant became the owner of the balance of the Voltair tract, from which the two acres owned by appellee and Duren had been taken. Shortly after appellee purchased, and probably in November or December, 1880, B. F. Duren, who, as has been said, was the owner of a part of the two-acre tract in controversy, and who was also the county surveyor, made a survey of the said two-acre tract, at the request of appellee, for the purpose of ascertaining and fixing its true boundaries and location on the ground in reference to the lands of the adjoining proprietors.

Afterwards, at the request of appellant, Duren made another survey of the same tract, and again fixed its boundaries substantially, but not exactly, where he had fixed them by his first survey for appellee.

Shortly after his purchase, appellant, as the owner of the balance of the Voltair tract, desired to build a division fence between himself and the appellee. The evidence shows that they had some conversation on the subject, and finally agreed upon a line which should be the division line between them. The agreement was fully set out by appellant in his answer, and is as follows: “That a controversy arose between them as to said division lines, and, in order to determine them correctly, several surveys had been made, some running into the land claimed by plaintiff, and some running into the land of defendant, and in order to settle the said boundaries and dividing lines, plaintiff and defendant mutually agreed on the line on which there is now standing a plank and wire fence erected by defendant. That in fact one of said surveys ran further south by several feet, but each survey being variant, the said parties, in order to avoid any litigation and further dispute as to the exact boundaries, agreed on said lines, as above stated. That this agreement was made on or about the ____ day of June, 1881, and relying on the same, and thereby induced, defendant in good faith erected said wire and plank fence at his own expense, and which is reasonably worth, to wit, $75; and also erected on the land now claimed by plaintiff to be in conflict, a dwelling house reasonably worth $150, and dug a well thereon worth $30. That all said improvements are valuable and permanent, and were erected on said land during the summer of 1881, and upon the faith of and were induced by said settlement of said boundaries. That plaintiff well knew said improvements were being erected, he then residing on the adjoining land claimed by him, and knew that said fence was erected as the dividing line, as agreed on, and he never in any manner objected to the same.”

The fence so agreed to be built by appellant was on a line quite as favorable, if not a little more so, to appellee than one built exactly along the entire line as ascertained by Duren.

When the agreement was made and the fence built, it is conceded that both parties were then satisfied with the line. Neither party knew then whether it was the true boundary line or not of the two-acre tract. The appellee no doubt believed it to be near the true line, and the appellant knew nothing definite on the subject, and from the evidence agreed to it because it was acceptable to appellee. It ran on a part of what was supposed by both of them at that time to be the land of appellant, and he states in his evidence that he only wanted the line fixed, and if it had been ten feet on his land, instead of two or three, he would have as readily accepted it. It was agreed to, and appellant expressed himself gratified at its establishment and remained contented with it, recognizing and respecting it for some time, and until shortly before the suit was brought, when he sold a part of the said two-acre tract to his brother-in-law, and who declined to pay for his purchase until its actual locality was determined.

This necessitated a resurvey of the land. It was then ascertained by Broxson, another surveyor, that the corner at which Duren had each time commenced his survey, known as the axe corner, when he ran off...