Davis v. Mitchell

• Decision Date: 09 March 1886
• Docket Number: Case No. 2227
• Citation: 65 Tex. 623
• Parties: A. F. DAVIS ET AL. v. J. C. MITCHELL ET AL.
• Court: Texas Supreme Court

65 Tex. 623

A. F. DAVIS ET AL.

v.J. C. MITCHELL ET AL.

Case No. 2227

Supreme Court of Texas.

Mar. 9, 1886.

APPEAL from Fort Bend. Tried below before the Hon. Wm. H. Burkhart.

Suit by appellants in the usual form of trespass to try title, against appellees, for the upper half of the lower half of the quarter of a league of land in Fort Bend county, granted to J. W. Moore. Appellee Mitchell answered, setting up a mistake in the original survey, by which the upper line of the Moore quarter was some three or four hundred yards lower down the river than it had been supposed to be, and claiming the right, which he exercised, to abandon his upper line and drop down upon plaintiffs'. Plaintiffs replied that they, and those under whom they claim, had been in actual possession, under a regular chain of title from the sovereignty of the soil to themselves, duly registered, with lines plainly marked, for more than forty years, and that it was too late to correct the lines, even if there had been a mistake originally, which they denied. Upon the trial of the case the jury found in favor of defendant.

Mitchell was permitted to tell the jury that Thompson, his vendor, told him he did not know where his lines were; that Autney, from whom he bought, once had a camp at a certain point on the land; that a Dutchman had come up there surveying, and he (Thompson) ran him off, etc.

W. L. Davidson, for appellants, on evidence, cited: Thurmond v. Trammell, 22 Tex. 257;Johnson v. Northcutt, 49 Tex. 444; 1 Greenl, sec. 103; Hunter v. Waits, 11 Tex. 85;Sims v. Chance, 7 Tex. 561;Diker v. Miller, 24 Tex. 417.

On the question of the dividing line, he cited: Medlin v. Wilkins, 60 Tex. 409;Davis v. Smith, 61 Tex. 18;Fortrand v. Ellis, 58 Tex. 245;Heffner v. Downing, 57 Tex. 576;Oliver v. Mahoney, 61 Tex. 610;Brownson v. Scanlan, 59 Tex. 222;Cooper v. Austin, 58 Tex. 494;Morrill v. Bartlett, 58 Tex. 644.

No briefs on file for appellees.

ROBERTSON, ASSOCIATE JUSTICE.

Buckley and Wilson compromised their controversy over one-fourth of a league granted to Moore, by dividing it between them. Buckley conveyed his interest in the upper half to Wilson, and Wilson conveyed his interest in the lower half to Buckley. In both deeds, made in 1847, the two lines dividing the two parts of the survey, were described in the same way. These two lines, as described in the deeds, intersect each other in the midst of the tract, at a point not otherwise identified than by the course and length of the lines, and a call for a stake. The plaintiffs in this suit owned that portion of the Buckley part which was adjacent to these division lines. The defendant Mitchell owned the part of the Wilson half adjacent to that one of the division lines running north and south. The location of this line was the matter in controversy. The two lines contended for by the respective parties are parallel with each other, and about three hundred yards apart, and the space between them is the land in dispute.

If Buckley and Wilson, not only divided the land between them, but also actually ran out and marked the division lines, about the year 1847, and they and their privies have since acquiesced in and acted upon such delineation, until the defendant, in 1881, set up a new line, the plaintiffs, claiming by the old line, were entitled to recover. The court below fully comprehended this theory, and, fairly enough, submitted it to the jury.

If Buckley and Wilson did not extend their lines upon the ground, but some one claiming under one of them had the lines run out and marked, and this designation was accepted and acquiesced in for a number of years by the successive owners of the two parts, the boundary would be just as well established as if the lines were run by Buckley and Wilson. There was evidence tending to show that Herndon, whilst the owner of the Buckley half, had it surveyed and subdivided by a deputy surveyor, Henry W. Stamm, and his notes of the lines were recorded in October, 1852. If this surveyor actually ran the line in dispute just above the McCray house, and, as thus located, the line was accepted and acted upon from 1852 until 1881, it could not be disturbed. This theory was not submitted to the jury; it was sufficiently supported by testimony to justify its submission, and if sustained the plaintiffs would have recovered.

But, if no line had ever been run out or marked until 1881, the plaintiffs would still be entitled to recover, if, upon an extension of the division lines, according to the calls in the deeds between Buckley and Wilson, the true location of the one in controversy should be found where the plaintiffs claim it to be. To justify and require the submission of this issue, there was certainly no lack of evidence on the plaintiffs' part. The plaintiffs' contention is undoubtedly right if the northwest corner of the Moore survey is really where it is described to be in Thompson's first deed to defendant. That this was the northwest corner, seems to have been the accepted opinion from 1843 until shortly before 1881. General Somerville pointed it out as the corner to Geo. W. Pleasants in 1...