Frisbie v. Smith

• Decision Date: 22 April 1896
• Citation: 35 S.W. 336
• Parties: FRISBIE v. SMITH.
• Court: Texas Court of Appeals

35 S.W. 336

FRISBIE v. SMITH.

Court of Civil Appeals of Texas.

April 22, 1896.

Appeal from district court, Wichita county; George E. Miller, Judge.

Trespass to try title by L. W. Frisbie against M. A. Smith. From a judgment for defendant, plaintiff appeals. Affirmed.

J. H. Barwise, Jr., for appellant. N. Henderson, for appellee.

FISHER, C. J.

This was a suit brought in ordinary form of trespass to try title by the appellant, as plaintiff below, against the appellee, defendant below, filed in the district court of Wichita county, Tex., upon November 28, 1893, and involved the title to 35 acres of land situated in said county. The appellee disclaimed as to a strip of 18 varas off of the south side of the block sued for, and as to the balance he pleaded not guilty, the statute of five years' limitation, and improvements in good faith. Trial was had before the court without a jury on June 8, 1894, which resulted in a judgment for the appellee for all of the land except that to which appellee had disclaimed. Upon the trial the appellee relied solely upon his plea of not guilty. The case was submitted to the district court upon an agreed statement of facts, and is so submitted here upon the same statement. The effect of the agreed statement of facts is that the appellant is entitled to a judgment for the land by him sued for, unless, upon November 24, 1892, the date of his location, it was a part of B. S. & F. survey No. 2, and belonged to the public free schools of the state of Texas. There is no controversy about the facts. There is an agreed statement in the record, to which we refer, and will only here state so much of the facts as will explain our ruling. The land in question was originally a part of the B. S. & F. survey, located November, 1878, as a part of the public free school lands. The land in controversy remained a part of that survey until December 11, 1890, when, by corrected field notes, the land in controversy was excluded from said survey. This part of said survey was included in the calls of the original survey as it was located. It is admitted that if the land in controversy was subject to location by land certificate on November 24, 1892, the appellant is entitled to recover same. The question in the case is, was it lawful to so correct the field notes of the original B. S. & F. survey No. 2, it being land belonging to the general school fund, so as to reduce its quantity, and give it less land than was called for by its original...