Jackson v. Graham

• Decision Date: 19 June 1918
• Docket Number: (No. 6062.)
• Citation: 205 S.W. 755
• Parties: JACKSON et al. v. GRAHAM et al.
• Court: Texas Court of Appeals

205 S.W. 755

JACKSON et al. v. GRAHAM et al.

(No. 6062.)

Court of Civil Appeals of Texas. San Antonio.

June 19, 1918.

Rehearing Denied October 16, 1918.

Appeal from District Court, Zavala County; R. H. Burney, Judge.

Action by Mary Louise Graham and others against T. J. Jackson and others. Judgment for plaintiffs, and defendants Jackson appeal. Affirmed.

George C. Herman, of Batesville, G. C. Jackson, of Crystal City, G. B. Fenley, of Uvalde, and George Powell, W. C. Linden, and Joe H. H. Graham, all of San Antonio, for appellants. W. B. Teagarden, of San Antonio, and L. Old, of Uvalde, for appellees.

SWEARINGEN, J.

Mary Louise Graham, joined by her husband, J. W. Graham, George A. Norsworthy, and Ross E. Doughty, Jr., a minor, by his guardian, Ross E. Doughty, all appellees, brought this suit in trespass to try title to lands described, and for damages against T. J. Jackson and wife, Emma Jackson, and M. Peebles and wife, Margaret Peebles. T. J. Jackson and wife impleaded M. Peebles and wife upon their alleged covenant of warranty.

Upon the trial the cause developed into a boundary suit. The only two issues were: First, the location of the common boundary between surveys Nos. 51 and 50, which common line was the south boundary of No. 51 and the north boundary of No. 50; second, the issue of the rental value of the land in dispute. Appellants disclaimed as to all land in No. 51 and appellees disclaimed as to all land in No. 50.

The cause was submitted upon special issues to the jury. Judgment was in favor of appellees Mary Louise Graham and husband, J. W. Graham, George W. Norsworthy and Ross E. Doughty, guardian of Ross E. Doughty, Jr., establishing the boundary on the line claimed by appellees, and against T. J. Jackson and Emma Jackson for damages in the sum of $50, with interest at the rate of 6 per cent. per annum from September 23, 1917. M. Peebles and Margaret Peebles were dismissed from the suit at the cost of T. J. and Emma Jackson.

The facts are that J. W. and Mary Louise Graham, George W. Norsworthy, and Ross E. Doughty, Jr., owned the land in survey No. 51, and T. J. and Emma Jackson owned the land in survey No. 50. The south line of No. 51 and the north line of No. 50 were identical. No. 51 was surveyed and patented prior to survey No. 50. The field notes of No. 50 established the N. W. corner of No. 50 and the S. W. corner of No. 51, and called for a bearing tree described thus: A live oak 20 inches in diameter standing on the brink of the bank (the east bank of the Leona river is previously mentioned) marked NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE bears N., 47 W., 9.2 vs.

The only object testified to by any witness to identify the location of this common corner, S. W. of 51 and N. W. of 50, was the above-mentioned witness tree marked when survey No. 50 was surveyed for the patentee, Sanchez, whose title the Jacksons own. There was evidence of two live oak trees marked NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE, both near the east bank of the Leona river, but some distance apart. Appellants' testimony tended to identify the one up the river as the original marked bearing tree; appellees' testimony tended to identify the one down the river as the original bearing tree. Whichever tree was proven to be the original witness tree controlled the determination of this case. The tree identified by appellees was clearly marked as described in the original field notes, and the mark was on the side of the tree facing the corner claimed by appellees to be the N. W. corner of No. 50. The tree attempted to be identified by appellants had a mark that looked as much like a Catholic cross as the letter P. In fact, several witnesses testified that they had carefully examined this mark and were certain that it was not, and had never been, a letter P. Witnesses for appellants admitted the mark would not be recognized as the letter P without careful examination, and even then it could not be readily or positively distinguished from a Catholic cross. Moreover, the evidence showed that this mark was on the opposite side of the tree from the location of the N. W. corner of No. 50 as claimed by appellant. The tree identified by appellees was recognized and remembered by several witnesses as the original bearing tree; whereas, the tree attempted to be identified by appellants was newly discovered by Surveyor Jowers, by means of a process of checking, reversing, and long-range measurements, more or less scientifically made. No witness seems to have had any prior knowledge of this newly discovered tree, and, even when happened upon by Surveyor Jowers, resort to the aid of careful examination was necessary to create the idea that the mark was the letter P, and this careful study failed to put the mark on the side of the tree towards the corner claimed, though the "cuts" which the field notes described as over and under the letter P were on the side of the tree opposite from the mark.

The rental value of the land was proven.

The first assignment is that the verdict is contrary to the evidence. We have carefully examined the entire statement of facts, and have found an abundance of testimony, as indicated in our finding of facts, to sustain the jury's finding. The first assignment is overruled.

The second assignment contends that the court erred in submitting to the jury the following special issue requested by appellees:

"You are charged, gentlemen, that in locating land lines and corners resort must first be had to the natural and artificial objects called for in the grant, if any of these can be found, and if any of these can be found the lines and corners must be established by them, and course, distance, quantity, or any other facts or circumstances cannot be considered to vary the result of establishing the lines or corners as they would be established by such natural or artificial objects, if found. So in this case, if you find and believe from the facts that the live oak tree and the two stumps referred to by Roy Benson and other witnesses for plaintiffs as being the witness tree for the southwest corner of survey No. 51, are the witness trees called for in the patent to surveys No. 50 or No. 51, or if you find and believe that either the live oak tree or the said stumps so spoken of by said witnesses are, or any one of them is, one of the witness trees called for in either one of said patents, then it is your duty to establish the southwest corner of survey No. 51 at the place claimed by plaintiffs, without considering any other facts or circumstances, if there are any by which this result would be defeated, and in such case, if you so find, you will answer question No. 1 in the affirmative."

The court instructed the jury, without objection, that under the undisputed evidence the southwest corner of survey No. 51 and the northwest corner of survey No. 50 are common corners.

The testimony introduced by appellees located the common corner, being the N. W. corner of 50 and S. W. corner of 51, by proving the identity of two stumps and a tree marked NOTE: OPINION...