Hefner v. Downing

• Decision Date: 17 November 1882
• Docket Number: Case No. 1316.
• Citation: 57 Tex. 576
• Parties: A. J. HEFNER AND T. P. LOCKHART v. C. T. DOWNING.
• Court: Texas Supreme Court

57 Tex. 576

A. J. HEFNER AND T. P. LOCKHART

v.C. T. DOWNING.

Case No. 1316.

Supreme Court of Texas.

Nov. 17, 1882.

APPEAL from Hunt. Tried below before the Hon. W. H. Andrews, special judge.

Action of trespass to try title to fifteen and one-half acres of land, instituted in December, 1877, by Carter S. Downing against A. J. Hefner and T. P. Lockhart. The pleadings of the defendants consisted of a general demurrer, plea of not guilty, limitation, and improvements in good faith. The dispute was as to the boundary line between a tract of one hundred and twenty acres out of a survey of one-third of a league of land, bought by Downing of G. W. Wright, and a tract of one hundred and seventy acres out of the same survey, bought by Hefner of Wright. The deed to Downing, and that to Hefner, were made on the same day, July 16, 1869, but the transactions with Wright leading to those deeds were much earlier. In neither of the deeds was the line between the tracts described so as to be identified otherwise than by course and distance. Downing's one hundred and twenty acres was a rectangle, the south boundary of which was three-fourths of a mile in length, and was a part of the same line which prolonged west formed the south boundary of Hefner's one hundred and seventy acre tract, and prolonged east formed the south boundary of another tract out of the same survey, being Hefner's home place, where he had lived as far back as 1860. On this same south boundary line was the N. W. corner of the Simpson tract, which Downing testified that Hefner had told him was just one-half a mile from the S. W. corner of his, Hefner's, home place, which last corner was also the S. E. corner of Downing's tract. In 1866, Downing being with a surveyor who was running along this common south boundary line, asked him to let him know when he was one-fourth of a mile west of the aforesaid N. W. corner of the Simpson tract, as that would be his S. W. corner, and on being notified marked the corner, and the compass was set, and the dividing line was run for a short distance. To give Downing the amount of land he was entitled to, the corner should have been one hundred and eighty-five varas further west.

Downing testified that he never regarded the corner thus established as his; that he knew at the time that it depended on the correctness of Hefner's statement; that at various times he repudiated that corner and line to A. J. Hefner, and to those claiming under him, before they had acquired any rights to the disputed land, or made any improvements thereon. A. J. Hefner denied making the statement to Downing testified to by him; that in 1867 he completed the division line which had been partly marked in 1866; that in 1868 he sold forty acres, including the land in dispute, to J. L. Hefner, who paid for it and at once settled on and improved it. J. L. Hefner testified that he bought supposing the marked line to be the boundary; that he paid for the land, made valuable improvements on it, and continued to occupy it until 1873, when he sold to Lockhart, never having heard the line questioned. There was testimony conflicting with that of Downing in regard to his acts and statement repudiating the line, and testimony of various affirmative acts of his recognizing the line. It appears that J. L. Hefner had no deed to the forty acres bought by him, but that A. J. Hefner conveyed directly to Lockhart, the vendee of J. L. Hefner.

The substance of the charge given by the court is stated in the opinion. The defendants asked a charge divided into paragraphs, the third, fifth and sixth of which are as follows:

Third. “The acquiescence of parties of adjoining lands in a particular line is a circumstance to which the jury may look in determining the true boundary.”

Fifth. “That when there is a dispute between adjoining proprietors as to the true dividing line between them, that if one of such proprietors builds and erects his improvements with reference to a particular line contended for by him as the true line, and the other proprietor respects and acquiesces in said line, he is bound by such respect and acquiescence in said line; he cannot dispute said line and claim that it is somewhere else, and this, too, though it may not be the correct and proper line.”

Sixth. “And if in this case you believe that Hefner and his vendees bought said land and improved it with reference to the line claimed by them, and Downing respected and acquiesced in said line and allowed Hefner and his vendee, Lockhart, to purchase and to place valuable improvements on said land with reference to said line, Downing is bound by such respect and acquiescence, and you will find for defendants.”

The trial resulted in a verdict for the plaintiff. The defendants bring the case up by appeal.

Perkins, Gilbert & Perkins and Upthergrove & Hefner, for appellants.

I. The first assignment of error is as follows: The court erred in subdivision one of general charge, which is as follows: “It is only necessary for the jury to determine which party has the superior right under said common source.” This portion of the charge took from the jury the consideration of the issue joined in this cause, which was whether plaintiff and defendant had established a division line between them by agreement or acquiescence. Browning v. Atkinson, 46 Tex., 608;Spence v. McCowan, 53 Tex., 31;McArthur v. Henry, 35 Tex., 815.

II. The court erred in subdivision two of general charge, which is as follows: “When two parties purchased land from the same common source, and at the same time and place, and one of the conveyances sets out the land, giving course and distance and quantity thereof, and the other does not give distance or special quantity, but merely calls for surrounding tracts including the tract conveyed as above stated on the same day, the course and distance given in one survey will control the bounds of the other, provided there are no natural or artificial objects called for in the grants or conveyances, and in such events said natural or artificial objects thus called for will control the division line of said surveys or tracts.” This charge makes the rights of the parties depend upon the original conveyances and ignores the issue joined in this cause--namely, was a boundary line established by agreement or acquiescence,--and further ignores the purchase of J. L. Hefner from A. J. Hefner in 1868, and his improvements thereon relative to said land, and the purchase of T. P. Lockhart from J. L. Hefner in 1873, all of whom purchased said land relative to the corner put up by Downing in 1866….

Matthews & Neyland, for appellee.

I. When a mere omission in one part of the charge of the court is supplied substantially in another part, it is not...