Fulton v. Frandolig

• Decision Date: 16 February 1885
• Docket Number: Case No. 1639.
• Citation: 63 Tex. 330
• Parties: JAS. C. FULTON v. F. J. FRANDOLIG.
• Court: Texas Supreme Court

63 Tex. 330

JAS. C. FULTON

v.F. J. FRANDOLIG.

Case No. 1639.

Supreme Court of Texas.

Feb. 16, 1885.

APPEAL from Aransas. Tried below before the Hon. H. Clay Pleasants.

Suit in trespass to try title, commenced by the appellant, J. C. Fulton, administrator of Joseph F Smith, deceased, against the appellee, Frandolig, on the 5th day of March, 1880. Appellant claimed the land in controversy as being embraced in two patents for three hundred and twenty acres of land each, issued to the heirs of Henry Smith, deceased, one of which patents was issued to said heirs as the assignees of T. Crocroline, and the other was issued to said heirs as assignees of J. Hand.

Frandolig pleaded: First. Not guilty of trespass, etc. Second. A denial that Fulton, administrator of Smith, was in possession and lawfully seized in fee-simple of the premises described in petition on the 1st day of January, 1879, or at any other time. Third. That he, Frandolig, had been in adverse possession of the premises in controversy since August 6, 1878, and had erected valuable improvements thereon, and had planted valuable trees on the same, and that the land was vacant when he took possession of it, and that it was his homestead.

The two patents under which appellant claimed were for contiguous surveys fronting on Aransas bay and calling for the meanders of the said bay. The field notes in the patents state the meanders of the bay by courses and distances.

The cause was tried by the court alone without the intervention of a jury.

The conclusions of fact reached by the court upon the trial of the suit were: “That plaintiff's two tracts patented to Henry Smith as assignee of T. Crocroline and as assignee of Joseph Hand, and under which two patents the plaintiff asserts title to the lands in controversy, were located in 1840 and 1841, and that said lands were actually surveyed and the boundaries defined by courses and distancesand corners by the surveyor of Refugio land district; that the bay shore was meandered as recited in these patents, and that the corners and distances and objects called for in the patents are substantially the same as given in the survey of these lands made under order of this court, upon motion of the defendant, in the month of March, 1881. That at the time the lands were located upon and severed from the public domain as aforesaid, there extended from the boundary of one of these tracts of land into the bay for a half a mile or more, a shell reef varying in width from twenty feet to fifty or sixty yards, and in elevation from a few inches to six or seven feet. That this reef's course was south southeast, and at and in the vicinity of the southeastern extremity of the reef there was some land, the same being very low; that at the point of contact with the plaintiff's land upon the bay shore the width of this reef was from twenty to thirty feet. That in 1869, during a storm, the water of the bay cut through the bay near the shore, and that since that time the land in controversy has, except for short intervals in very low tide been entirely surrounded by the water of Aransas bay; that above the reef the water has cut a little into the shore, leaving one of the lines called for in the Crocroline grant a short distance from the shore into the water, as appears from the survey made in 1881, while just below the reef the water of the bay has receded, and what was water in 1841 is now marsh. That with these two slight exceptions, from a comparison of the calls given in the patents, and those given in the survey of 1881, the water boundary of these two tracts of land is the same now that it was in 1841; the courses, distances and corners being the same in the survey as those called for in the patents. That the lands patented were identified both as to the boundaries and the number of acres by the survey of 1881, and that the land in controversy, surrounded now as aforesaid by the waters of the bay and containing two hundred and thirty-nine acres, lies beyond the boundaries of the plaintiff's land.”

The conclusions of law drawn by the court were: “That if there be an actual survey of the lands when severed from the public domain, and the...