Herbst v. Martinez, 13214

• Citation: 307 S.W.2d 633
• Decision Date: 13 November 1957
• Docket Number: No. 13214,13214
• Parties: Maria Vidaurri HERBST et al., Appellants, v. Enrique MARTINEZ et al., Appellees.
• Court: Texas Court of Appeals

Page 633

307 S.W.2d 633

Maria Vidaurri HERBST et al., Appellants, v. Enrique MARTINEZ et al., Appellees.

No. 13214.

Court of Civil Appeals of Texas, San Antonio.

Nov. 13, 1957.

Rehearing Denied Dec. 11, 1957.

Gordon Gibson, J. G. Hornberger, Laredo, for appellants.

Laurie M. Huck, San Antonio, for appellees.

POPE, Justice.

In 1936, some seventy members of the Martinez family sued the members of the Vidaurri family for the partition of two tracts of land along the Rio Grande River, out of the Borrego Grant in Zapata County, Texas. In 1956, the case came to trial and the court withdraw the case from the jury and granted judgment for the plaintiffs, the Martinez heirs. Defendants, the Vidaurri heirs, admitted that they were only entitled to an undivided 1/14 interest in the twenty-eight acre tract called Tract Two, and no contest or appeal exists concerning that tract. Directly to the south of Tract Two is a fifty-eight acre tract, called Tract One, which is the only property in suit. Defendants answered the partition suit by a plea of not guilty and limitations, and a prayer that the plaintiffs take nothing. They filed no cross-action and asked no affirmative relief. Plaintiffs in a supplemental pleading claimed title by limitations and asked for affirmative relief. Plaintiffs claimed and undertook to prove title through a common source, prior possession, and by limitations. Defendants claimed that there were fact issues raised by the evidence on each of these grounds of recovery.

Plaintiffs, in the fact of the not guilty plea of defendants had the burden to prove the common source and to connect themselves and Tract One, in dispute, with that common source upon which they relied. Morrow v. Fleming, 29 Tex.Civ.App. 547, 69 S.W. 244. Because the case was withdrawn from the jury and judgment was rendered for the plaintiffs, we must view the evidence in the light most favorable to the defendants. White v. White, 141 Tex. 328, 172 S.W.2d 295. In our opinion, there were fact issues on whether Tract One was outside the boundaries of the deed under which plaintiffs claimed, whether it also was outside of the lands owned by the grantor to plaintiffs' ancestor, and whether plaintiffs proved limitations.

Plaintiffs unquestionably connected themselves with the claimed common source with reference to some lands, but there was a fact issue on whether they connected themselves with the common source with reference to Tract One. The claimed common source is Jose Maria Vidaurri. On May 4, 1829, he conveyed to Hoppolito Pena and Alejandro Vidaurri a large body of land known as the Dolores Subdivision out of the Borrego Grant. The deed described the lands conveyed to those two grantees as running from the 'hill called del Difunto Flores to the Canada de San Andres which divides with a monument from those of Laredo.' The hill is a well-known point on the south of the tract. The 'Canada' is a disputed point on the north. Both points are somewhere on or near the Rio Grande on the west. Under this deed and and addendum to it, grantee Pena took the upper half and Vidaurri took the lower half. Plaintiff connected the defendants with the common source by inheritance through Pena. They sought to connect their own title to Pena by a deed from Pena's widow to Cosme Martinez, plaintiffs' ancestor. That deed was dated September 20, 1859, and used the same two points, the hill on the south and the Canada on the north, and conveyed to Cosme Martinez the north one-fourth of the lands between these points. The description of the land sold to Cosme Martinez was 'one-fourth part of the land to be found from the hill under the name of the deceased Flores to Canada de San Andres, which divides the boundary of the land of Laredo, Mr. Martinez taking from this boundary downwards one-fourth of said land already mentioned.' In other words, Cosme Martinez took the north one-fourth of the entire Dolores Subdivision, Pena supposedly still owned the one-fourth to the south, and Alejandro Vidaurri, or his successor, owned the remaining south half of the Dolores Subdivision. The Martinez plaintiffs claim that Tract One lies within the area described by the deed to Cosme Martinez, but, even if it did not, since the grantor placed Cosme Martinez in possession, and since the grantor owned the lands south of the property described in the deed, that Martinez therefore took the lands of his grantor, where he was in fact placed in possession. Defendants Vidaurri, on the other land, argue that they proved that Tract One was not only outside and south of the south line of the Martinez deed, but also outside of and south of all the lands owned by Pena, the grantor. Defendants, Vidaurri, say that they proved that Tract One was below the south line of all lands that Cosme Martinez and his grantor owned. We must examine the evidence.

The evidence shows that several surveyors through the years have endeavored to locate the north point of beginning, called the Canada de San Andres. A 'Canada' was variously described as a canyon, or a valley, or a low area in a thicket. There were four places in the area which are known as a Canada. The true Canada or north beginning point was a much disputed fact.

Plaintiffs called E. J. Foster, County Surveyor of Webb County, who was familiar with and had done extensive surveying on the lands, as had his father before him. Foster testified that he ran the lines fixed in the field notes to a survey of the Cosme Martinez deed, as run in 1870 by a surveyor named Von Merrick. According to the Merrick Survey, the south boundary of lands described in the Cosme Martinez deed extended for more than a mile to the south of Tract One, and the deed embraced Tract One. Foster testified further that in 1887 a surveyor named Navarro located the south line of the Cosme Martinez lands at a different point, but that it too was far south of Tract One, and therefore embraced Tract One. This was the essence of plaintiffs' proof that Tract One was embraced within the Cosme Martinez deed description.

Foster, however, strongly disagreed with the surveys relied upon by plaintiffs, who called him as a witness. On cross-examination, he pointed out that the beginning point of the Von Merrick survey depended upon the party testimony of one person, who pointed out two broken stones, and that Navarro's beginning point is unexplained from any source. He strongly discredited both the Von Merrick and Navarro surveys. He testified that he and his father before him, had done extensive surveying in the area, that the two named surveys were unfounded, and that they threw the Martinez lands about a mile too far south, since the true north beginning point, the true Canada, was far to the north of the one selected by Von Merrick and Navarro. He positively testified that Tract One in dispute was directly south of the south line...