Davis v. Smith
Decision Date | 01 February 1884 |
Docket Number | Case No. 1647. |
Citation | 61 Tex. 18 |
Parties | MARY A. DAVIS v. ALEX. SMITH. |
Court | Texas Supreme Court |
APPEAL from Trinity. Tried below before the Hon. John B. Kennard.
Suit by the appellee in trespass to try title to recover the east half of the J. D. Parker pre-emption for one hundred and sixty acres of land. Appellee alleged that he was owner in his own right of the east half of the Parker survey, and that he was ousted of his possession on the 6th day of February, A. D. 1880, by appellant; he alleged damages at $200.
Appellants excepted generally to the petition, and specially that the land claimed by appellee was not definitely described; pleaded “not guilty,” and specially that appellant owned what was known as the Beazley or Kilgore survey, and that the same did not conflict with the Parker; that appellee claimed the whole of the Parker survey of one hundred and sixty acres, and that the same begins at a point two hundred and thirty varas south of the southeast corner of the George Rose pre-emption survey for three hundred and twenty acres, which was older than the Parker survey,--the Rose having been made in 1853 and patented in 1860, and the Parker surveyed in 1857 and patented in 1862; that the Rose was a well defined survey; that its northeast, northwest and southwest corners were all in the timber, and correspond with the calls in the patent; that the north boundary line, west boundary and most of the south boundary line passed through timber, and were according to the calls in the patent, courses, distances, etc., without ambiguity; that the Rose survey was well defined, and recognized both in the county surveyor's office and the general land office; that from the Rose survey there was no difficulty in ascertaining the beginning corner of the said Parker; that by making the Parker begin, according to the calls, at two hundred and thirty varas south of the Rose southeast corner, all the parties would get their quantum of land without conflict with the Kilgore, claimed by appellants, and other surrounding surveys. But that to make the Rose south boundary line extend from the southeast corner east eighteen hundred and sixty-two varas, instead of fifteen hundred and five varas, as called for by patent and recognized in general land office, would make the Rose too large by seventy or eighty acres, and cause conflict and confusion with surrounding surveys; that the true corner of the Parker was two hundred and thirty varas south of the southeast corner of the Rose, and that the south boundary line was fifteen hundred and five varas long, and not eighteen hundred and sixty-two, as contended for by appellant.
Appellee filed a plea denying matters specially set up in the answer, and alleged that the east and west division line of the Parker, owned by appellee, and the Beazley or Kilgore, owned by appellant, was “a line run at a point seventy varas west from Nogallas spring, north three hundred and thirty varas to the northwest corner of said Beazley or Kilgore??” that Parker field notes were correctly stated in petition, and same as given in patent were correctly stated; that a division line had been agreed upon between the parties for a period of twenty years; that fences had been erected, and that the middle of the lane was the recognized boundary between them, and that appellant, up to the time appellee purchased, claimed no land west of that line; and that appellee and those under whom he claimed had had actual possession of the land west of the division line for more than ten years before appellant unlawfully entered on same, and appellee claimed right to same by the statute of limitation of ten years, and prayed that he have possession and for damages, as in original petition.
The case was submitted to the court without the intervention of the jury, and judgment was rendered in favor of the appellee for the land as claimed by him.
The following sketch represents the Parker and Kilgore surveys as shown on the map of the general land office:
TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE TABLE
W. A. Stewart, G. W. Granbury and Robb & Stevenson, for appellant.
J. R. Burnett, for appellee.
This suit grew out of a disagreement between the plaintiff and defendant as to the beginning corner of the J. D. Parker grant, under which the plaintiff claimed title to the land in controversy. This corner is described in that grant as being two hundred and thirty varas south of the southeast corner of G. Rose's pre-emption claim, and a mound was made by the surveyor to identify it, there being no timber convenient for bearing trees. The first line of this survey is described as running east nine hundred and five varas to a mound made by the surveyor seventy varas west from a spring called Nogallas spring.
The plaintiff below claimed that if the southeast corner of the Rose pre-emption could not be identified by any natural or artificial objects, from which the two hundred and thirty varas could be run to...
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