Harris v. Kiber

• Decision Date: 18 February 1915
• Docket Number: (No. 6726.)<SMALL><SUP>†</SUP></SMALL&gt
• Citation: 178 S.W. 673
• Parties: HARRIS et al. v. KIBER et al.
• Court: Texas Court of Appeals

178 S.W. 673

HARRIS et al. v. KIBER et al.

(No. 6726.)^†

Court of Civil Appeals of Texas. Galveston.

February 18, 1915.

On Motion for Rehearing, May 13, 1915.

Appellees' Motion for Rehearing Denied June 10, 1915.

Appeal from District Court, Wharton County; Samuel J. Styles, Judge.

Action by Emma D. Kiber and others against John W. Harris and others. From a judgment for plaintiffs, defendants appeal. Reversed and rendered.

G. G. Kelley, of Wharton, and Williams & Neethe, of Galveston, for appellants. W. L. Hall, of Wharton, and Masterson & Rucks, of Angleton, for appellees.

PLEASANTS, C. J.

This suit was brought by appellee Emma D. Kiber, joined pro forma by her husband, F. Kiber, against the appellants, in the form of trespass to try title to a tract of 88.13 acres of land on the R. Kuykendall league, in Wharton county. The defendants answered by general demurrer, special exceptions, and general and special denials of the allegations of the petition. The answer also contained pleas of limitation of three, five, and ten years, and the following special plea:

"And for further answer herein defendants say that the issue in this case is one of boundary between the lands of plaintiffs and defendants; that plaintiffs and those under whom they claim have acquiesced in the boundary of the land claimed by these defendants, and in the quantity of said land, for more than 50 years before this suit was brought; and that the defendants had their land run out by careful and competent surveyors a number of years ago, one of whom was the county surveyor of Wharton county, and defendants placed their fence on the line so established by them, and plaintiffs acquiesced therein, and said fence has remained on said line ever since, until the institution of this suit; without complaint from plaintiffs, although they have known of its location. Wherefore defendants say that plaintiffs are estopped from claiming said line to be elsewhere."

The trial in the court below without a jury resulted in a judgment in favor of plaintiffs for the 88.13 acres of land described in their petition, and establishing the boundary line of said land as claimed by them. At the request of appellants the trial judge filed conclusions of fact and law. After stating that the suit was brought in the form of an action of trespass to try title, and giving the description of the land contained in the petition, the conclusions of fact and law contain the following:

"While plaintiff's suit was instituted as one of trespass to try title to the 88.13 acres of land above described, plaintiff during the trial of said cause stated and treated the same as a boundary suit, and defendants during the trial of said cause treated the same as a boundary suit; the following allegations appearing in defendants' pleadings: [Here follows defendants' special plea before set out.]

"Finding of Facts.

"(1) The court finds that this is a suit for the purpose of establishing the boundary line between the lands owned by plaintiff and the defendants in the Kuykendall league of land, in Wharton county, Texas.

"(2) That the Kuydendall league of land was granted to Robert Kuykendall July 16, 1824, and in 1878 Kuykendall sold the upper or west half of said league to Stephen F. Austin; that thereafter the said Stephen F. Austin died, leaving a one-half of his property to his sister Emily M. Perry, and the other one-half to his nephew, S. F. Austin, Jr.; that before his will was probated the said S. F. Austin, Jr., died, leaving his mother, Eliza M. Hill, as his only surviving heir, and who inherited his portion of the estate of the said S. F. Austin.

"(3) That in 1846 a partition deed was executed by Emily M. Perry and her husband on the one part, and Eliza M. Hill on the other part, by the terms of which Eliza M. Hill received and obtained one-fourth of the estate of the said S. F. Austin, Sr., and Mrs. Emily M. Perry received and obtained three-fourths of the estate of the said S. F. Austin, Sr., and in this partition the said Eliza M. Hill was awarded the upper or west one-fourth of the upper or west one-half of the said Kuykendall league of land, said tract being described in said partition deed as follows: `Beginning at the upper corner of said league on the river and running westwardly along the line thereof to corner, thence southeasterly along the line of said league to a point from where a line drawn parallel with the upper line of said league to the river, and thence up the river to the place of beginning, will include one-fourth of said one-half league of land' — said partition deed awarding to Emily M. Perry the remaining or lower three-fourths of the upper one-half of said league of land.

"(4) That at the time said partition was made of said upper one-half league of land between the said Emily M. Perry and Eliza M. Hill, said upper one-half of said league of land was supposed to contain one-half of a full league, or 2,214 acres of land, and that the upper or west line of said league was supposed to be 4,500 varas in length, when in truth and in fact said upper one-half of said league contained 1,921 acres of land, and the upper or west line of said league was 3,967 varas in length, instead of 4,500 varas, as called for in the original grant.

"(5) In 1851, after the death of Emily M. Perry, her husband, Jas. F. Perry, and her children, W. J. Bryan, M. A. Bryan, Guy M. Bryan, S. S. Perry, Henry Perry, and Eliza M. Perry (Hill), executed a partition deed, partitioning among themselves the estate of said Emily M. Perry, deceased, in which partition the children of said Emily M. Perry were awarded said upper three-fourths of said one-half of said Kuykendall league, less the upper one-eighth heretofore allotted to Eliza M. Hill; and in 1854 W. J. Bryan, Moses Austin Bryan, Guy M. Bryan, S. S. Perry, and Eliza M. Hill made a partial partition of the property inherited from their mother, by the terms of which partition deed, among other lands, Moses Austin Bryan was allotted a tract of land described as follows: `Also a tract of land situated on the Colorado river on the west side and is known as a part of the Robert Kuykendall league. This tract allotted to said Moses Austin Bryan is the upper one-half of a tract which was allotted to said Emily M. Perry in the deed of partition with Eliza M. Hill, and lies below and adjoining the tract allotted to the said Eliza M. Hill in said deed of partition. The tract thus allotted to Moses Austin Bryan is supposed to contain 830 acres.'

"(6) That on November 16, 1872, Moses Austin Bryan conveyed the land awarded to him in said above-described partition deed, made in 1854 between the heirs of Emily M. Perry and Thos. Dyer, and that the plaintiffs inherited said land from the said Thos. Dyer, who died on or about the ____ day of ____, 189 —. That said Eliza M. Hill, and her legal representatives after her death, owned and possessed the upper or west one-fourth of the upper or west one-half of said Kuykendall league, awarded to her in 1846 in said partition deed executed by her and Mrs. Emily M. Perry and her husband, until the 10th day of January, 1851, when Wm. G. Hill, administrator of the estate of Eliza M. Hill, deceased, conveyed said tract of land to John W. Harris and E. M. Pease, in which conveyance said tract of land was described as follows: `One-eighth league of land situated on the west bank of the Colorado river, being the upper one-fourth part of the upper one-half of the league granted by the government to Robert Kuykendall and bounded as follows: Beginning at the upper corner of said league on the west bank of said Colorado river, from thence a line to run westwardly along the upper line of said league to the upper back corner; thence southwestwardly along the back line of said league to a point on said line from which a line drawn parallel with the upper line of said league to the river Colorado, and thence up the river with its meanders to the place of beginning, so as to include one-fourth part of said upper one-half of said league.' That thereafter said E. M. Pease, through his administrator, conveyed his interest in said land to the heirs of John W. Harris, who are the defendants in this suit, and who through said deed, and as the heirs of the said John W. Harris, are the owners of said tract of land in the upper or western portion of said league formerly awarded to Eliza M. Hill.

"(7) That on or about the 16th day of November, 1872, Moses Austin Bryan conveyed to Thos. Dyer the tract of land awarded to him in the partition deed above mentioned between the heirs of Emily M. Perry, in which deed said tract of land (which is now known as the Kiber tract) is described as follows: `The tract of land hereby conveyed contains 830 acres, more or less, and is known as a part of the Robert Kuykendall league on the west side of the Colorado river in Wharton county, that was allotted to me in the division of the estate of Stephen F. Austin, and the estate of Emily M. Perry, my mother, in the division of property among the heirs of said estate. The said tract of 830 acres is more fully described by the map and field notes made by Collingsworth, surveyor, hereto attached. That the field notes described in the map and plat attached to said deed give the field notes to said tract as follows: Beginning at the lower corner of the Hill tract, a stake from which a pecan 8 in. bears south 35 deg. east 1 vr., and an elm 6 in. bears 67 deg. west 4 vrs.; thence south 20 deg. west with said Hill line 4,725 vrs. to his corner; thence south 70 deg. east with the league line 952 vrs. to a stake; thence north 20 deg. east to a stake on the bank of the Colorado river, from which an ash 12 in. bears north 47 deg. west 3 vrs., a cottonwood 36 in. bears north 72 deg. east 4 vrs.; thence up the river with its meanders to the place of beginning.'

"(8) That the plat and field notes made by said surveyor, Collingsworth, attached to said...