Dallas Hunting & Fishing Club v. Nash

• Decision Date: 13 March 1918
• Docket Number: (No. 1933.)
• Citation: Dallas Hunting & Fishing Club v. Nash, 202 S.W. 1032 (Tex. App. 1918)
• Parties: DALLAS HUNTING & FISHING CLUB v. NASH et al.
• Court: Texas Court of Appeals

202 S.W. 1032

DALLAS HUNTING & FISHING CLUB v. NASH et al.

(No. 1933.)

Court of Civil Appeals of Texas. Texarkana.

March 13, 1918.

On Motion for Rehearing, March 21, 1918.

Appeal from District Court, Dallas County; W. L. Whitehurst, Judge.

Trespass to try title by Wood Nash and others against the Dallas Hunting & Fishing Club. Judgment for plaintiffs, and defendant appeals. Affirmed. On motion for rehearing. Motion overruled.

Morris & Williamson, of Dallas, for appellant. Snodgrass, Dibrell & Snodgrass, of Coleman, Lively & Goggans, of Dallas, J. H. Randell, of Denison, and Holland & Bartlett, of Dallas, for appellees.

HODGES, J.

This is really a boundary suit. It was instituted by the appellees, however, as an action of trespass to try title to a small tract of land in Dallas county claimed as a part of Harrison survey No. 331 bordering on the Trinity river. Appellant claims it as a part of the J. S. Lewis survey, which was made some time subsequent to the issuance of the Harrison patent. The appellant pleaded the general issue of not guilty, and the five and ten year statutes of limitation. It also pleaded specially some matters of defense which were admissible under the plea of not guilty. These, upon special exceptions by the appellees, were stricken out, and that ruling of the court has been assigned as error.

Conceding that the court erroneously sustained those exceptions, the rulings were harmless for the reason that the matters therein pleaded were, so far as material, admissible in evidence under the plea of not guilty. The record shows that there were four Harrison surveys numbered from 329 to 332, inclusive, patented in 1847. The Lewis survey, which adjoined the Harrison surveys on the southwest and south, was patented in the year 1856. The Harrison surveys bordered on the Trinity river, extending thence north, or, rather, northeast. Survey No. 331 is described in the patent as follows:

"Beginning at the northwest corner of George P. Harrison survey No. 330 on the bank of the Trinity river for first corner; thence north 45° E. 3,645 varas to second corner; thence north 45° W. 950.4 varas to third corner; thence south 45° W. 3,963 varas to fourth corner on bank of the Trinity river; thence south 63½° E. with the meanders of the Trinity river 1,002 varas to the place of beginning."

At each of the corners above referred to marked trees were called for. The beginning and the second and third corners of this survey, and the lines between them, were located upon the ground. The fourth corner and the line from there to the beginning were the matters in dispute. The third line, appellant contends, should stop at a slough which was apparently at one time the main channel of the Trinity river; while the appellees contend that it should cross the slough and continue 484 varas farther southwest to the bank of the present channel of the Trinity river. To stop where the appellant contends that it should would make the line 261 varas shorter than called for in the field notes; while to extend it to the point where the appellees claim it should be would make it 223 varas longer.

The court submitted three special issues. In response to the first the jury found that the land in controversy was within the Harrison survey No. 331. The second and third issues related to the defense of limitation, both of which were answered in favor of the plaintiffs. Upon those findings judgment was entered for the appellees.

The appellant offered in evidence a judgment rendered in 1903 in the district court of Dallas county, in a suit filed by the heirs of Lelia B. Robertson et al. against Paine, Hull, and Pruitt. This was offered for the purpose of showing that the slough was then recognized as a boundary instead of the present channel of the Trinity river. It was excluded upon the objection that it was immaterial and irrelevant and had not been recorded in the office of the county clerk as required by statute. That ruling is made the basis of an assignment of error. The relevancy of that judgment has not been shown, and we are unable to say that its exclusion was an error. The portion of the judgment containing the general description of the land as set out in the bill of exception follows the field notes of the patent.

Appellant also offered in evidence a number of deeds showing a chain of title under the Lewis patent. The latter, being a subsequent grant, must yield to the calls for the boundary lines in the older survey. The holders of deeds under the Lewis patent took no title to that portion involved in the conflict. Hence the court properly held that those deeds were immaterial. But it is not contended that the appellant claimed under those deeds.

It is also insisted by the appellant that the court should have entered judgment in its favor for the land because the findings of the...