Grawunder v. Gotoskey

• Decision Date: 24 May 1918
• Docket Number: (No. 7583.)
• Citation: 204 S.W. 705
• Parties: GRAWUNDER v. GOTOSKEY.
• Court: Texas Court of Appeals

204 S.W. 705

GRAWUNDER v. GOTOSKEY.

(No. 7583.)

Court of Civil Appeals of Texas. Galveston

May 24, 1918.

Appeal from District Court, Austin County; Norman G. Kittrell, Special Judge.

Suit by Joe Gotoskey against H. Grawunder. Judgment for plaintiff, and defendant appeals. Affirmed.

C. G. Krueger, of Bellville, and Mathis & Teague, of Brenham, for appellant. Johnson, Matthaei & Thompson, of Bellville, and Searcy & Botts, of Brenham, for appellee.

PLEASANTS, C. J.

This suit, brought in the form of an action of trespass to try title, involves only a question of boundary. The suit was brought by appellee against appellant. After a general description of plaintiff's land, the petition describes and locates the east boundary line thereof, which is the line in dispute, as follows:

"The third above described line begins in the center of a lane in the prairie, which lane is located between the tracts of land of H. Grawunder, defendant, and Joe Gotoskey, plaintiff, between the north corner of Grawunder and the east corner of Gotoskey, and runs thence south 25 west (in fact south 23 degrees, 37 west) with a marked line marked by hacks on trees and through the center of an ash tree about 15 inches in diameter, marked fore and aft by old hacks, which tree is located about 700 or 750 varas from the league line, to a corner near the center of said lane and in a straight line, the same being the south or southeast corner of said 25-acre tract owned and claimed by plaintiff."

The petition further alleges:

"Plaintiff shows to the court that the east line of plaintiff is the west line of the land owned by defendant, and runs through the middle of an old line inclosed by the fence of plaintiff on one side and by the fence of defendant on the other side, the location of said division line and lane having been fixed, established, and agreed upon by A. C. Jackson and J. H. Jackson, the former owners and vendors of plaintiff and defendant, which division line was agreed upon by said vendors and lane established and fence constructed on each side of said lane more than 25 years ago."

The defendant answered by general denial, plea of not guilty, and by special plea, averring that the line in question was not located as claimed by plaintiff, and describing its location as claimed by defendant. The evidence shows that in December, 1886, A. C. Jackson conveyed to his brother, J. H. Jackson, the 25 acres of land on the W. C. White league claimed by plaintiff in this suit. The two Jacksons at the date of the execution of this deed owned adjoining tracts of land on the league, and the 25 acres sold by A. C. to J. H. Jackson was a strip of land along the west side of the tract owned by A. C. Jackson. The deed conveying this strip of 25 acres describes it as follows:

"Beginning at a stake in the lake from which a locust marked `X' bears S. 87½ deg. E. 4 vrs. and another locust marked `X' bears N. 51½ W. 10 vrs., both of which bearing trees are gone, being also the southwest corner of a 240 acre survey out of a 392 acre tract for A. C. Jackson; thence north 25 E. 2596 vrs. to a stake, said Jackson's North corner; thence south 45 E. 57 vrs. to an imaginary stake; thence south 25 W. about 2590 vrs. to the south line of said A. C. Jackson's 242 acre survey; thence north 65 W. 56 vrs. to the place of beginning, containing 25 acres of land."

About 2 years after this deed was executed the Jacksons, desiring to fence their respective tracts of land, employed a surveyor named Francis to locate the dividing line between their tracts, which was the third or east line called for by the field notes in the deed to the 25-acre strip above set out. This line was located and marked by the surveyor as now claimed by appellant, and the Jacksons constructed their division fence along said line. They afterwards made a lane between them, the line being in the center of the lane. A. C. Jackson testified:

"I do not remember the date of the establishment of the lane, but said lane was agreed upon and recognized by myself and J. H. Jackson as the dividing line. Said lane was recognized by us as the dividing line between our lands for about 15 years, or as long as we owned the property in question. Said lane was about 16 feet wide. The said lane began at the upper or north line of our respective tracts, and extended to the league line on the south. My entire tract of land was under fence. My entire tract of land was under fence from the time I built a fence along or near the west line of said tract or lane fence. Said fence was in good condition along the land during the entire time I owned it. I sold said land in question to John Ziewert above five years ago."

J. H. Jackson testified:

"My brother's land was in Austin county on the White league just east of mine. We had the line between us surveyed and divided by fence, and afterwards we made a lane there that went clear through about 16 feet wide, the center of the lane being the line. The lane went through the old lake. The lane was always agreeable to us, and was recognized by myself and A. C. Jackson as the dividing line between our land from the time it was built until we sold the land, and the lane is the dividing line. The lane extended from the northeast to the southeast corner of my land. It was between my land and the land of A. C. Jackson. We built the fence down to the lake. First that was our dividing line, and later on I fenced my whole tract of land."

John Ziewert sold to appellant the land conveyed to him by A. C. Jackson. Appellee, Joe Gotoskey, bought the J. H. Jackson tract about a year prior to the time Ziewert bought from A. C. Jackson. Ziewert testified:

"I once owned some land in Austin county. I bought it about 6 years ago from Ab Jackson. Joe Gotoskey owned the land adjoining it. Joe Gotoskey bought the land from John Jackson about 1 year before I bought from Ab Jackson. The boundary line on the west between my land and Joe Gotoskey is in the middle of a little lane between Joe Gotoskey and myself. I sold the land to H. Grawunder, and told him while in Bellville what Ab Jackson told me about the line being in the middle of the lane. This was the line between myself and Joe Gotoskey. Ab Jackson told me that he and his brother John Jackson had agreed on the line in the middle of the lane."

E. B. Wilson testified he knew John and Ab Jackson, owned land adjoining the lands of the Jacksons; remembered when the lane between Ab and John Jackson's land was made. The Jacksons told him it was the dividing line between their lands. The lane was kept up 20 to 25 years. The Jacksons were honorable men.

Joe Gotoskey, the plaintiff, testified he had lived on the place he purchased from John Jackson. The fences around the place that he purchased from John Jackson are in the same place they were in when he purchased the place.

There is testimony that the line in the center of the lane which was established by the Jacksons does not run in accordance with the course called for in the deed from A. C. to J. H. Jackson; and, if it be located in accordance with the calls in the deed, it will leave the old lane after about half its distance is run, and will give appellant 4 or 5 acres of land more than he has with the line located where it was fixed by Francis and agreed upon by the Jacksons.

Ludwig, the surveyor who made the survey establishing the line as claimed by appe...