Floyd v. Rice
| Decision Date | 31 October 1866 |
| Citation | 28 Tex. 341 |
| Parties | NATHANIEL C. FLOYD v. ANDERSON D. RICE. |
| Court | Texas Supreme Court |
When the record shows no action to have been taken by the court below on exceptions to pleadings, it is to be presumed in this court that the exceptions were abandoned without being brought to the notice of the court below. 1 Tex. 529;3 Tex. 397;5 Tex. 93;28 Tex. 105.
It is a sufficient objection to a deposition that the officer by whom it was taken and returned was a surety on the bond for costs of the party offering the deposition in evidence. Pas. Dig. art. 3726.
If the verdict be contrary to evidence illegally admitted, the objecting party cannot complain. 6 Tex. 496;21 Tex. 519.
On a question of the true locality of a common boundary, the fact that a particular line has been acquiesced in or recognized by the adjoining proprietors as their common boundary line is evidence entitled to great weight, and affords a strong presumption that the line so acquiesced in or recognized is the true line. Pas. Dig. art. 894, note 1144; 16 Tex. 74, 96.
The presumption in favor of the line acquiesced in or recognized by adjoining proprietors as their common boundary line is strengthened by the lapse of time; but no statute of limitations or rule of law is known by which any definite time is fixed as the period at which such a presumption becomes conclusive. Pas. Dig. arts. 4622, 4624, notes 1031, 1033.
Other considerations beside the mere lapse of time are involved in determining how conclusive, in any particular case, the presumption in favor of a recognized boundary line is to be regarded. Each case must furnish its own rule, to be deduced by the court and jury from its own facts, circumstances, and surroundings.
An instruction which has been substantially given need not be repeated. Pas. Dig. art. 1464, note 562.
It is the peculiar province of the jury to decide upon the credibility and weight of conflicting testimony. 7 Tex. 4;8 Tex. 228;19 Tex. 101;23 Tex. 641;ante, 185; post, 649.
APPEAL from Dallas. The case was tried before Hon. NAT. M. BURFORD, one of the district judges.
The appellee, Anderson D. Rice, commenced this suit against Nathaniel C. Floyd, the appellant, on the 23d of June, 1859. The object of the plaintiff was to have the boundary line between himself and the defendant established by decree of the court, though the petition also complained that the defendant had dispossessed the plaintiff of ten acres of land, and prayed restitution thereof.
The facts of the case and the errors assigned are indicated in the opinion.
John J. Good, for appellant.
No brief on file for the appellee.
Of the various errors assigned, it is deemed necessary to consider only the following: 1. That the court erred in overruling defendant's exceptions to plaintiff's petition and amendments. 2. That the court erred in refusing the 5th, 6th, and 7th instructions asked by the defendant in the court below. 3. That the court erred in admitting the testimony of Delilah Beard. 4. That the court erred in refusing a new trial on the ground that the verdict is contrary to law and evidence.
The 1st assignment is answered by the record, which shows no action of the court below on defendant's exceptions. Under the rulings of this court, they are presumed to have been abandoned, and not brought to the notice of the court. Carter v. Carter, 5 Tex. 93.
The 3d assignment will, for convenience, be next considered. This brings in question the propriety of admitting the testimony of Delilah Beard. We are of the opinion that the admission of it was erroneous, because of the interest of the officer, Patterson, who took and returned her deposition, he being a surety on appellee's (Rice's) bond for cost in this case. But we do not believe its admission such an error as requires a reversal of the judgment.
The testimony of this witness tends exclusively to establish an agreed boundary between Allen Beard, her husband, and William James, when they respectively owned the tracts of land in question. She testified to this point alone. The jury by their verdict found and established another and entirely different boundary from that which her testimony would have established. Her testimony would have established the old bois d'arc hedge as the boundary line agreed on between Beard and James. The jury found the old colony line, ten links east of the new hedge, to be the true boundary. So far from being influenced by her testimony, the finding of the jury is contrary to it. Therefore the appellant could not have been injured by its admission, and has no cause to complain of it. Davis v. Loftin, 6 Tex. 496;Patton v. Gregory, 21 Tex. 519.
The 2d assignment alleges error in the refusal of the court to give the 5th, 6th, and 7th charges asked by the appellanton the trial below.
The effect of the 5th and 6th charges, if given, would have been to instruct the jury, that the recognition of and acquiescence in a certain line as the true boundary line by the parties for the periods of time named therein (three to five years) would have the effect to establish the line thus recognized, although variant from the true line.
This is not a suit for land; the question in the case is one of boundary. There is no conflict of...
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Hicks v. State
...v. Butler, 20 Tex. Civ. App. 106, 48 S. W. 753; Rice v. Ward, 93 Tex. 532, 56 S. W. 747; Blum v. Jones, 86 Tex. 492, 25 S. W. 694; Floyd v. Rice, 28 Tex. 341; Rice v. Ward, 93 Tex. 532, 56 S. W. 747; 13 Cyc. 852, for collation of Our statute (article 837, C. C. P.) prescribes: "New trials, ......
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City of San Antonio v. Bodeman
...be considered as waived. Moore v. Woodson, 44 Tex. Civ. App. 503, 99 S. W. 116; Insurance Co. v. Boren, 83 Tex. 97, 18 S. W. 484; Floyd v. Rice, 28 Tex. 341; Railway v. Rollins, 89 S. W. 1099; Bonner & Eddy v. Glenn, 79 Tex. 533, 15 S. W. 572; Cotton v. Cooper, 160 S. W. 602. Authorities ar......
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Miller v. Mills County
... ... 172). See sections 4233, ... 4236, Code. True, there are cases holding that acquiescence ... for any particular time is not conclusive. See Floyd v ... Rice, 28 Tex. 341. And others entirely ignore ... acquiescence as furnishing evidence of boundary. See ... Davis v. Caldwell, 107 Ala. 526 ... ...
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Patterson v. State
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