Marsalis v. Garrison

• Decision Date: 20 June 1894
• Citation: 27 S.W. 929
• Court: Texas Court of Appeals
• Parties: MARSALIS v. GARRISON.<SMALL><SUP>1</SUP></SMALL>

27 S.W. 929

MARSALIS v. GARRISON.¹

Court of Civil Appeals of Texas.

June 20, 1894.

Appeal from district court, Tarrant county; W. D. Harris, Judge.

Action by T. L. Garrison against T. L. Marsalis. Judgment for plaintiff. Defendant appeals. Reversed.

Chambers & Thomas and Matlock & Peacock, for appellant. A. M. Carter, for appellee.

Statement of the Case, with Conclusions of Fact.

TARLTON, C. J.

This suit involves the title to certain lots in the town of Sunset, Tex. The record shows that, if this town be in Wise county, the appellee (plaintiff below), is entitled to recover, and that, if it be in Montague county, the appellant (defendant below), is entitled to recover. The issue, therefore, involved, is one of boundary, viz. the true locus of the line dividing Montague county, on the north, from Wise county, on the south.

In solving this issue, it becomes necessary to refer to the several legislative enactments defining the boundaries of Denton, Cooke, Wise, Jack, and Montague counties, the two first named situated, in the order stated, east of Wise and Montague. These enactments are as follows: Act April 11, 1846: "That all that territory included within the county of Fannin, beginning at the S. W. corner of Collin county; thence west 30 miles; thence north 30 miles; thence east 30 miles; thence south 30 miles to the beginning, be, and the same is hereby, created a new county, to be known and called by the name of Denton." Act March 20, 1848: "That all that territory included within the following limits, to-wit: Beginning on Red river, at the northwest corner of Grayson county; thence south to the north line of Denton county; thence west to the northwest corner of Denton county; thence south thirty miles to the southwest corner of said county of Denton; thence west sixty miles; thence north to Red river; thence down said river to the place of beginning, be, and the same is hereby, created a new county, to be known and called Cooke." Act Jan. 24, 1852 ("An act better defining the boundaries of Denton county"): "The boundaries of Denton county shall be as follows: Beginning at the S. W. corner of Collin county as now established; thence north with the west boundary line of said county of Collin to the corner of Grayson county; thence north with the boundary line of the county to the northeast corner of said Denton county as established by the county of Grayson, a distance in all of 29 miles and seven chains (4 pole chains); thence west following the line of Grayson county and passing its southwest corner, in all, 31 miles; thence south to a point due west of the northwest corner of Dallas county as now established by law; thence east to the said corner of Dallas county; thence with the north boundary line of said county of Dallas eastward to the beginning." Act Jan. 23, 1856 ("An act creating the county of Wise"): "Be it enacted," etc., "that the territory embraced within the following limits, to wit: Beginning at the southwest corner of Denton county; thence north with the west boundary line of said county 30 miles; thence west 30 miles; thence south 30 miles; thence east to the place of beginning, shall comprise the county of Wise." Act Aug. 27, 1856 ("An act to create the county of Jack"): "That the territory embraced in the following limits, to wit: Beginning at the southwest corner of the county of Wise; thence west to the southeast corner of Young; thence north 30 miles; thence east to the northwest corner of the county of Wise; thence south to the place of beginning." Act Dec. 24, 1857 (creating the county of Montague): "Be it enacted," etc., "that the territory embraced in the following limits, to wit: Beginning 6 miles west of the northwest corner of Denton county; thence west with the north line of Wise and Jack counties; thence due north to Red river; thence down said river with its meanderings to a point due north of the beginning; thence south to the beginning, be, and the same is hereby, constituted into a county to be known as the county of Montague." Act July 9, 1879 (defining the boundary lines of Montague): "Beginning 6 miles west of the northeast corner of Wise county; thence west with the north line of Wise and Jack counties to a point 4 miles west of the northeast corner of Jack county; thence due north to Red river; thence down said river with its meanders to a point due north of the beginning; thence due south to the place of beginning."

The purported statement of facts inserted in the record seems to have been filed after the adjournment of court. We find no order authorizing such filing, and we, therefore, are required to ignore this paper. Consequently, also, we adopt the conclusions of fact found by the trial court, as follows: "(1) After the organization of Wise county, in 1856, L. E. Camp was duly appointed by the county court of Wise county to run out and mark the lines of said county, and he did so, and located the northeast corner of Wise county one mile north of the northwest corner of Denton county, and then ran and marked as required by law the north line of Wise county. The north line of Wise county was not run due west, being a little north of west. The report of said Camp was made November 17, 1856, and was approved by the county court of Wise county, and was recorded on the records of said county. (2) It does not appear that any one representing Cooke county (from a portion of the territory of which Wise was made) was with Camp at the time the north line of Wise county was run. (3) The officials of Wise county and of the county of Montague, after it was created, recognized the line as made by Camp as the line between said counties, until about the year 1876 or 1877, when some controversy arose as to the correctness of the line. (4) In 1859, Cooke county, after due notice to Wise county, and by representatives of each, had the line from the northwest corner of Denton county to a point six miles west of that point run and established as a true line between said counties, and then ran the west line of Cooke, being also the east line of Montague, and in so doing crossed the north line of Wise, as run by Camp, about six miles west of where the northeast corner of Wise county had been established by Camp. Said survey of the line between Wise and Cooke, for the six miles east and west and the one mile north and south, was returned to Cooke county, and duly approved and recorded, and the two counties from that time acquiesced in the line thus located. (5) In 1877, after a contention arose between Wise and Montague counties, the commissioners' court of Wise county, intending to act under the act of 1846, and in accordance with the same, appointed A. Daverneux to retrace and remark the north line of Wise county, and notice was served on the county court of Montague of the fact of such appointment and the time of the survey, but as to whether said notice was served for the length of time required by law does not appear from the evidence. (6) At the time designated in the order, A. Daverneux went to the northwest corner of Wise county, as established by Camp, and, no one appearing to represent Montague, ran the line. He passed the Camp corner, and traced the old Camp line from the said corner to the northwest corner of Wise county, the same being easily traced. The said Daverneux remarked the said Camp line, and made report to the commissioners' court of Wise county, and the same was approved and recorded. (7) From the time of the running of the line by Daverneux, and even before that time, and on until 1881, both Wise and Montague counties claimed the strip of land in which the land in controversy is...