Lecomte v. Toudouze

• Decision Date: 10 November 1891
• Citation: 17 S.W. 1047
• Parties: LECOMTE <I>et al.</I> v. TOUDOUZE <I>et al.</I>
• Court: Texas Supreme Court

17 S.W. 1047

LECOMTE et al. v. TOUDOUZE et al.

Supreme Court of Texas.

November 10, 1891.

Commissioners' decision. Section B. Appeal from district court, Bexar county; GEORGE H. NOONAN, Judge.

Trespass to try title by Octavie T. Lecomte and another against Gustave Toudouze and another. Verdict and judgment for defendants. Plaintiffs appeal. Affirmed.

J. H. McLeary, for appellants. Denman & Franklin, for appellees.

FISHER, J.

This is an action of trespass to try title and for damages brought by the appellants against appellees to recover a strip of land lying between the farms of the parties; and for rents and profits, and damages for timber destroyed, in the sum of $650; and praying for an injunction to stay waste, etc. Defendants pleaded want of equity in bill, etc., and defendants also pleaded the statutes of limitation of 3, 5, and 10 years, and that plaintiffs have taken a part of defendants' land, and pray for rents, profits, etc. Plaintiffs also claim title by 10 years' occupancy of the land in controversy, and also plead the 3 and 5 years' statutes of limitation. Defendants further plead that the boundary line was settled by a verbal agreement between the parties, and run out by a surveyor, and the suit finally resolved itself into a controversy concerning a boundary line. The jury found the following verdict: "We, the jury, find from the evidence that the line established by County Surveyor Locke was agreed upon by all parties, and find in favor of defendants." The land in controversy is a part of the Manuel de Luna grant, situated on the south bank of the Medina river. The plaintiffs claim so much of the De Luna grant as was not previously sold by Lecomte de Watine, the father of plaintiff Leon Lecomte, and the former owner of the survey under a decree of partition of the estate of Lecomte de Watine rendered in 1870, by which decree about 3,000 acres of the De Luna survey was awarded Leon Lecomte. Leon Lecomte is the husband of plaintiff Octavie T. Lecomte. She holds under a deed from Henry Toudouze, who had previously purchased from Leon Lecomte. There is not in the decree of partition any description of the De Luna grant, nor is there in any of the deeds in plaintiff's line of title any description of the land given, except that it is bounded by other surveys, naming them, and by the Medina river. The field-notes of these other surveys are not in the record. It is admitted that Lecomte de Watine is common source. November 6, 1851, Lecomte de Watine sold to E. T. de Curzon a part of the De Luna survey. The calls in the deed begin: "At the corner on the Medina river, which is the terminus of the line separating one rancho from the property of Du Domingo Losoya; thence running down said river, so as to include all of the low ground or bottom land which fronts on said river at that place; thence running back, a line parallel with the said before-mentioned line, so as to contain within said lines the quantity of four hundred acres." The Losoya grant is immediately west of De Luna, and the corner on the Medina called for in the above deed is the common corner of the two grants. The field-notes and boundaries of the Losoya are not given. The controversy in the case is concerning the location of the east line of the 400-acres survey, described in the deed from Lecomte de Watine to De Curzon. Gustave Toudouze holds under De Curzon by deed that conveys the same land described in the deed from De Curzon. The common line between the De Luna and Losoya grants runs back from the Medina river in a south-westerly course about one-fifth the distance of the common line, then for a short distance turns and runs in a south-easterly direction. Then the line that is about four-fifths of the common line of the two grants runs back in a southerly direction to the back line of the grants. It will be seen from this that the common line between the Losoya and the De Luna runs back from the Medina river in an irregular course. The contention of the appellants is that the parallel line called for in the De Curzon deed should run parallel with the short, irregular lines of the common line between the Losoya and De Luna grants. Appellees contend that the parallel line called for in the deed should run not parallel with the short, irregular lines, but should run parallel with the main or long common line between the two grants. Appellees further claim that, in order to get all the bottom or low ground which fronts on the river as called for in the deed, the line must run as they claim; that they and appellants, by a verbal agreement, fixed the line between them about in the position as claimed by appellees. This agreement was made in 1884. Appellants claim that they were, long prior to the bringing of suit, in possession of the lands, and are entitled to hold the same by limitation. Appellants contend that the court erred in refusing to give charges requested by appellants presenting the issues of limitation, and in refusing to inform the jury as to the legal effect of the calls in the De Curzon deed as determining where and how the parallel line should run, and erred in leaving it to the jury to ascertain what was meant by "parallel lines" as stated in the deed, and also erred in refusing, upon request of appellants, to charge that the call for quantity in the De Curzon deed was the controlling call. The court in its charge submitted the issues of agreed boundary, and the question of boundary as raised by reference to the calls in the deeds offered in evidence, and permitted the jury to look to the deeds and map in evidence, and the surrounding circumstances, to ascertain the boundaries of the lands conveyed; and further instructed them that, if the land conveyed to Curzon was 400 acres, to run in parallel lines with the Losoya and Luna grants, to find for the plaintiffs. The court refused to charge on limitation. We think the court properly left it to the jury to ascertain what land was intended to be included in the calls of the deeds. It appears that the appellants were in possession of some of the land in controversy such length of time as would create a bar under the 10-years' statute of limitation. But in looking to the evidence we cannot determine with certainty as to what portion of the lands this possession relates. If they seek protection under the statute, the burden is on them to fix the extent of this possession. The three and five year statutes of limitation could, under the facts of the case, have no application. There are other assignments that complain that errors were committed upon the trial in the rejection and admission of testimony. The questions raised by these assignments, and those of the refusal of the court to give the charges in the particulars that we have considered, are deemed by us unnecessary of consideration in disposing of this case.

If the court did in any of the particulars complained of in these assignments commit error, and we conclude that the verdict of the jury on the issue of agreed boundary is supported by the evidence, and...