Ex'x Browning v. Atkinson

• Decision Date: 01 January 1877
• Citation: 46 Tex. 605
• Parties: EXECUTRIX OF W. W. BROWNING v. J. ATKINSON.
• Court: Texas Supreme Court

46 Tex. 605

EXECUTRIX OF W. W. BROWNING

v.J. ATKINSON.

Supreme Court of Texas.

1877.

APPEAL from Washington.Tried below before the Hon. I. B. McFarland.

This suit, brought in 1862 by W. W. Browning, was before the Supreme Court at a former term. (37 Tex., 633.)A full statement of the pleadings and testimony is not deemed material to an understanding of the opinion.

In 1834, one Stephens sold to Elisha Roberts one third of a league of land, a portion of which is the land claimed by plaintiff.Afterwards, Stephens conveyed to different parties the rest of the league.The defendant, through mesne conveyances, had acquired, in 1857, title to a part of the rest of the league so conveyed by Stephens, and the controversy was as to the dividing line, plaintiff insisting that its locality must be ascertained by following the calls in the conveyance of title, and the defendant insisting that there was a plainlymarked line on the ground, which, though not agreeing with the calls in the title, was still the western boundary of the Roberts survey.The marked line was first seen in 1838, and though there appears to have been no witness who saw it run, there was testimony to the effect that it was recognized and known in the neighborhood as the dividing line between the land conveyed to Roberts and the remaining portion of the league, and seems, inferentially, to have been so treated by the former owners.

The title papers offered in evidence by plaintiff failed to show a conveyance to plaintiff of the strip in controversy between the marked line and the line as run by following course and distance, but showed that the title was in the intervenors, if in either.The intervenors, in February, 1871, filed their plea of intervention, as follows:

+-------------------------------------------------+
                ¦“W. W. Browning ¦)¦     ¦Suit pending in District¦
                +----------------+-+-----+------------------------¦
                ¦v.              ¦)¦3178.¦Court of Washington     ¦
                +----------------+-+-----+------------------------¦
                ¦Jethro Atkinson.¦)¦     ¦county.                 ¦
                +-------------------------------------------------+
                

And now comes James Daughtry, Edward Daughtry, and Josiah Daughtry, and Lenora Ross, who is joined by her husband, G. T. Ross, all residents of the county of Austin, in the State of Texas, and, under leave of the court, intervene in the above-entitled cause, and unite in the allegations, and in the prayer of the plaintiff's original and amended petition.

+---------------------------+
                ¦(Signed)¦SAYLES & BASSETT, ¦
                +---------------------------+
                

For Intervenors.”

A jury was waived, and judgment rendered for the defendant, for costs, and establishing the divisional line between plaintiff and defendant, (describing it,) as claimed by defendant.No action regarding an appeal was taken by intervenors.

The case was argued with much ability on each side, but in view of the opinion, a full statement of the facts seems unnecessary.

Sayles & Bassett, for appellant, on the proposition that a call for a line marked will not control course and distance, cited Houston v. Pillow, 1 Yerg. R., 488; Martin v. Vance, 3 Head, (Tenn.,) 649; Borman v. Cox, Peck, (Tenn.,) 364;Jordan v. Payne, Id., 320.And it is only where lines are actually marked, that a call for them will control course and distance.(1 Dev. & Bat., 427;14 Penn. St., 59;6 Peters, 508;4 Wheat., 444;4 Cond. R., 501;1 Bibb, 467;4 McLean, 279; 1 Hayn, 22, 238, 376;4 Serg. & R., 461;12 Penn. St. R., 180.)

They also cited McCown v. Hill, 26 Tex., 359;Booth v. Strippleman, 26 Tex., 440;Hubert v. Bartlett, 9 Tex., 103;Anderson v. Stamps, 19 Tex., 464;Chinoweth v. Haskell, 3 Peters, 96;Preston v. Bowmar, 2 Bibb, 493;Shipp v. Miller, 2 Wheat., 316;(4 Cond., 135.)

We omit an exhaustive supplemental brief of appellant, devoted chiefly to a discussion of the doctrine of estoppel.

Breedlove & Ewing, for appellee, argued at length the facts of the case, and cited, as applicable to them, the following authorities: Hubert v. Bartlett, 9 Tex., 97, and21 Tex., 20;Bolton v. Lann, 16 Tex., 96;George v. Thomas, 16 Tex., 74;Booth v. Upshur, 26 Tex., 70;Booth v. Strippleman, 26 Tex., 441;Stafford v. King, 30 Tex., 271.

They also insisted that unless the judgment was without evidence to support it, the court should not interfere with it; citing Bailey v. White, 13 Tex., 118;Gilliard v. Chessney, 13 Tex., 337;McFarland v. Hall, 17 Tex., 690.

GOULD, ASSOCIATE JUSTICE.

Appellant contends that course and distance are the controlling, and indeed, the only calls in the deed from Stevens to Roberts, and that to justify the adoption of a line varying from those calls, the evidence should show conclusively that the line adopted was not merely “reputed to be, but in fact was, the very line run and marked at the time” the deed was made.But certainly it is competent for the owners of contiguous lands to settle the line of division between them; and if Stevens and Roberts, after the deed was made, and at a time when the land was theirs, fairly agreed upon and marked out their dividing line, though that line be subsequently, after long acquiescence, ascertained to vary somewhat from the course of the deed, it will be conclusive upon them and those claiming under them.In the case of George v. Thomas, 16 Tex., 88, Justice Wheeler, delivering the opinion of the court, and speaking of the necessity of following the lines actually marked, as far as practicable, says: “And the rule is the same, whether the deed or conveyance refer for its boundaries to the marked lines or monuments, or they be afterwards marked or established by the parties.”(Waterman v. Johnson, 13 Pick., 267;Makepeace v. Bancroft, 12 Mass., 469;Davis v. Rainsford, 17 Mass., 212;Rockwell v. Adams, 6 Wend., 468;7 Cowen, 761;Kellogg v. Smith, 7 Cush., 382;Lerned v. Morrill, 2 N. H., 198;Stone v. Clark, 1 Met., 378??...