Lozica v. Celli
| Decision Date | 18 April 1963 |
| Docket Number | No. 14090,14090 |
| Citation | 367 S.W.2d 75 |
| Parties | John B. LOZICA, Appellant, v. Oscar P. CELLI et al., Appellees. |
| Court | Texas Court of Appeals |
Barker, Barker & Coltzer; Robert G. Coltzer, Galveston, for appellant.
Armstrong, Bedford & Lambdin; Bart Hopkins, Galveston, for appellee.
Appellees, Oscar P. Celli et al., brought this trespass-to-try title suit against appellant, John B. Lozica, to settle and determine a boundary dispute and to recover title and possession of a strip of land in Galveston, Texas, approximately 47 feet in width running generally north and south between U. S. Highway 75 to the north and Offats Bayou to the south, and lying between a tract of land to the east admittedly owned by appellees, sometimes referred to as the Celli Tract, and a tract of land lying to the west admittedly owned by appellant, sometimes referred to as the Lapanovich Tract, such strip being denoted on the accompanying map as D-D-C-C. Appellant appeals from the judgment of the trial court based upon the jury verdict determining that the boundary line as claimed by appellees, being the line marked D-C on said map, was the true boundary between the tracts of land owned by the parties, and that appellant was not entitled to title and possession of said strip of land under his plea of the ten year statute of limitation.
The evidence shows that in 1946 appellant sold to appellees a tract of land out of Outlot 516, Trimble and Lindsey Survey of Galveston County, Texas, lying generally in the southeast corner of said Outlot, and being described by metes and bounds as follows:
'BEGINNING at an iron rod located at the intersection of the East boundary line of said Lot No. 516 with the South side of the right-of-way line of Interstate Highway No. 45 (formerly known as Galveston County Causeway Road); THENCE South 69 degrees 16 minutes West 371.2 feet along said South right-of-way line of said Highway to an iron rod set for corner; THENCE South 25 degrees 18 minutes East at 345 feet, passing an iron rod, at 363 feet to the North Bank of Offats Bayou; THENCE in a generally northeasterly direction following the meanders of high tide of said North Bank of Offats Bayou to a point where same intersects the East boundary line of said Lot 516; THENCE North 25 degrees 18 minutes West along and with said East boundary line of said Lot 516, passing an iron rod at 52 feet and continuing in all 330 feet to the place of beginning, containing within the foregoing described limits 2.77 acres of land, more or less, together with all improvements thereon.'
At the time of such sale appellant owned and still owns the tract of land lying in the southwest corner of said Outlot contiguous to the west boundary of the tract of land sold to appellees. According to the undisputed evidence there was at the time of the sale to appellees a line of concrete posts 6 inches in width, spaced approximately 10 feet apart along the line shown on said map as D'-C', extending from the Highway to the garage and south of the garage a fence of railroad ties or posts, and there was also a line of concrete posts and a retaining wall along the line marked A-B on the map. Before such sale appellant pointed out to appellees the lines of concrete posts as the west and east boundaries of the tract he was selling, and they took possession of such tract without making a survey, accepting the word of appellant that the tract as pointed out to them was the property described in their deed. Appellant contends that he remained in possession of that part of Lot 516 immediately west of the westerly line of concrete posts which he had pointed out to appellees as marking their property line. He asserts that he used the 47 feet in controversy which lay west of the concrete posts, being tract D-D-C-C on said map, and improved the same by raising the grade thereof, planting, leasing space for standards to support an outdoor bill board, and occupying a portion of the strip as a chicken yard and chicken house indicated on the map as I-II-III-IV.
In 1959 the Texas Highway Department began improving Highway 75 and desired to acquire a strip of land along the north line of the properties belonging to appellees and appellant, and indicated, based on its own survey, that the proper line dividing the properties of the parties was the line C-D on the map which is approximately 47 feet to the west of the line of concrete posts that the parties had always considered the line dividing the two properties. Shortly thereafter appellees filed this suit and appellant filed his cross-action in trespass-to-try title, claiming both the record title to the strip in question and also title under the ten year statute of limitation.
Appellant in his first point asserts that the evidence was insufficient to support the finding of the jury that the west line of the tract of land described in the deed from John B. Lozica to Oscar P. Celli and Erode Celli dated June 3, 1946, indicated on said map as D-C, as surveyed, located and marked on the ground by Surveyor L. L. Lowery, is the true location of the west boundary line of said tract. We have read the entire statement of facts and examined the many exhibits introduced in evidence, and carefully considered the testimony of all of the witnesses including that of the five surveyors who testified at the trial, and have concluded that such finding is not so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In re King's Estate, 1951, 150 Tex. 662, 244 S.W.2d 660; Tudor v. Tudor, 1958, 58 Tex. 559, 314 S.W.2d 793.
We overrule appellant's assignment that the evidence established as a matter of law that he had matured title to the strip of land in controversy under the ten year statute of limitation. The evidence with respect to the character and extent of appellant's claim consists largely of the testimony of appellant, an interested party. The evidence relative to the use of the strip of land in question and the exclusiveness thereof consists largely of the testimony of appellant and his wife.
Appellant also asserts that the finding of the jury to the effect that he had not matured a limitation title to such strip of land is against the great weight and preponderance of the evidence. Applying the test enunciated in In re King's Estate, supra, and Tudor v. Tudor, supra, we have concluded that this assignment should be sustained.
The uncontroverted evidence shows that when appellant conveyed the tract of land described in the deed to Celli, together with all improvements thereon, including John's Seafood Cafe and business, he pointed out what he understood to be the east and west boundaries of the tract as marked by the concrete posts. This was the tract appellant claimed he had bought from his uncle and which his uncle had surveyor Charlie Holt survey in 1921. After the sale to Cell in 1946, appellant still owned what is referred to as the Lapanovich Tract which he claims is bounded on the east by the concrete posts marking the west line of the Celli Tract. At no time did Celli question that the boundary line between the respective tracts as marked by the concrete posts was not the true boundary line until in 1959 when the State Highway Department made its survey and indicated that the boundary line was some 48 feet west of the line marked by such posts. Prior to such time Celli had always recognized the line as marked by the concrete posts as the west line of the tract he had bought from appellant.
Appellant testified in substance that at the time he conveyed the Celli Tract there was a fence along such line D-C consisting of the concrete posts with 2 X 4s on top of such posts, and with barbed wire and hog wire fastened to the posts and 2 X 4s, extending from the highway to the chicken enclosure and south of the Chicken yard, a fence of railroad ties, which fences marked the west boundary line of the Celli Tract. At that time the posts which were approximately 6 feet in length extended 4 feet above the ground. In 1949 Celli hydraulically filled a strip of land to the east of the line of concrete posts about 50 feet in width and extending from the highway to the Bayou. At such time appellant filled from the westerly line of the concrete posts to the fence of the Lockhart property adjoining the Lapanovich Tract on the west. Celli paid for the filling east of the line of posts and appellant paid for the filling west of the line of posts. After such filling the concrete posts extended only about 2 feet above the ground. Appellant testified that the cost to him of the dredging was about $3,500.00. Appellant also testified that he continuously filled or raised the property west of the concrete post line from time to time after the sale to Celli and down to the present time. He put mainland soil along the water front and grew grass on the strip of land south of the chicken enclosure, and following the dredging, he brought fill in by the wagon load whenever he could get it, placing most of such fill on the area from the chicken enclosure shown on the map as I-II-III-IV to the Bayou. The property south of the chicken enclosure was filled to a height of some 10 feet. The dredge had filled in about 3 feet, and appellant filled in 5 or more feet over the dredge fill on the strip south of the chicken enclosure.
Appellant testified also that he built a seawall or a bulkhead south of the chicken enclosure, extending from the concrete post line west to Lockhart's fence; that the cost of the dredging and the filling was better than $20,000.00; that there was,...
To continue reading
Request your trial
-
Templeton v. Dreiss
...1952, writ ref'd n.r.e.). In determining whether possession of the claimed land was exclusive, all evidence must be considered. Lozica v. Celli, 367 S.W.2d 75, 81 (Tex.Civ.App.--Houston 1963, no writ). The evidence, as seen from the trial court's vantagepoint, reflects that the Templetons' ......