Hays v. Clawson

• Decision Date: 28 April 1926
• Docket Number: (No. 6972.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 286 S.W. 857
• Parties: HAYS et al. v. CLAWSON et al.
• Court: Texas Court of Appeals

Page 857

286 S.W. 857

HAYS et al. v. CLAWSON et al.

(No. 6972.)^*

Court of Civil Appeals of Texas. Austin.

April 28, 1926.

On Motion for Rehearing, June 9, 1926.

Appeal from District Court, Travis County; George Calhoun, Judge.

Action by W. F. Hays and another against J. C. Clawson and others. Judgment for defendants, and plaintiffs appeal. Reversed, with instructions, and remanded.

R. B. Thrasher and W. F. Hays, both of Austin, for appellants.

Dickens & Dickens and R. C. Walker, all of Austin, for appellees.

BAUGH, J.

On or about October 25, 1909, Rob Roy sold and conveyed to J. C. Clawson 350 acres of land out of the B. F. Childress, Isaiah Kirby, and J. J. Bayard surveys, located a few miles up the Colorado river from the city of Austin, in Travis county, Tex., and described in the deed as follows:

"Beginning at the N. W. corner of the B. F. Childress survey; thence S. 60 E. 1,197 varas to the N. W. corner of same on the west line of the I. Kirby survey; thence N. 30 E. 445 varas to the N. W. corner of the I. Kirby survey; thence S. 60 E. 475 varas to the N. E. corner of same; thence S. 30 W. 467½ varas to the N. W. corner of the J. J. Bayard survey; thence 60 E. 74 varas to corner on the north line of same; thence S. 30 W. 1,007 varas to stone mound for S. E. corner of the tract herein conveyed; thence N. 60 W. 1,746 varas to a stone mound for corner; thence N. 30 E. 31½ varas to S. W. corner of Childress survey on the top of a high bluff of the Colorado river on the W. line of the B. F. Childress survey; thence N. 30 E. with said W. line 1,007 varas to the place of beginning, being 350 acres of land in the county of Travis and state of Texas."

Thereafter W. F. Hays and Dr. Annie Hays, appellants herein, acquired, amongst other lands, the remainder of said surveys. Some time in 1923, when appellants undertook to fence their lands, a dispute arose between them and Clawson as to the location of the east and south boundary lines of the Clawson 350-acre tract, which resulted in this lawsuit. The court appointed W. P. Ratchford to make a survey of said 350-acre tract. Ratchford made said survey and returned to the court a map or plat thereof, a substantial copy of which is attached to this opinion, showing that he located the 350-acre Clawson tract within the points indicated on the attached plat by the letters A, B, C, D,

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

E, F, G, and H. It is appellees' contention, however, that the true location of the north line of the J. J. Bayard survey is 84 varas east and 233 varas south of the line E I, and at the points indicated by the dotted line K J on the plat; and that, therefore, the call in the deed for the lower northeast corner of said 350-acre tract on the north line of the Bayard is in fact on the ground 74 varas south 60 east from the point K on the plat, instead of at point F; and that by running from this line south 30 west 1,007 varas, as called for in the deed, to a corner, thence north 60 west for the south line of the 350-acre tract, the east and south lines of Clawson's land are thus located 84 varas further east and 233 varas further south than the lines F G H claimed by Hays as Clawson's east and south lines. The suit is brought as a suit in trespass to try title to the strip of land between these disputed lines, but resolves itself into a boundary line suit to determine the east and south lines of Clawson's 350-acre tract.

The case was tried to a jury upon general issue and the jury found in favor of the defendants, appellees here, on which finding the court rendered judgment that the plaintiffs take nothing; hence this appeal.

We think the verdict of the jury was clearly contrary to the evidence, considered in the light of the court's charge. No complaint is made of the charge. The trial court, in effect, instructed the jury to follow the footsteps of the original surveyor in surveying the 350-acre tract in 1909, from which survey the field notes contained in the deed were made. Subsequent to 1909, the west line of the Childress survey shows to have been run out by three other surveyors. There is no dispute as to the location of this west line. It also appears that the southwest corner of the Childress survey is conclusively established on the top of a high bluff approximately 110 or 112 varas from the water's edge. At least two of the surveyors located it by a stone mound. There was some evidence that Grooms Lee, who originally surveyed this 350 acres in 1909, did not find this corner; but we think that the fact that he calls for it in his field notes made at the time at the very place where the other surveyors found it shows conclusively that he did. This corner, therefore, and the west line of the Childress, are conclusively established. The field notes to the 350 acres also call for the survey to close at this point with a straight line running north 60 west 1,746 varas to a stone mound; thence north 30 east 31½ varas to this southwest corner of the Childress. Regardless, therefore, of any uncertainties or conflicts with reference to location of the north lines of the Kirby and Bayard surveys, with a fixed point for the southwest corner of the 350-acre tract, its south line can be readily and certainly located by reversing the call in the field notes from this point and extending it south 60 east. It is manifest that the jury, in finding for the defendants, not only did not do this, but must have based their findings upon a line run out by the surveyor Homeyer, beginning at point J on the plat, pointed out to him as the northeast corner of the Bayard, then running the width of the Bayard called for to point K on the plat; thence south 30 west a distance of 1,007 varas called for in the field notes as being the length of the east line of the 350-acre...