McComb v. McCormack, 11482.

Decision Date25 February 1947
Docket NumberNo. 11482.,11482.
Citation159 F.2d 219
PartiesMcCOMB et al. v. McCORMACK et al.
CourtU.S. Court of Appeals — Fifth Circuit

R. O. Kenley and Walter F. Brown, both of Houston, Tex., and Perry McComb, of Conroe, Tex., for appellants.

Jesse W. McDaniel, Robert L. Cole, Jno. C. Townes, Dwight H. Austin, Brian S. Odem, U. S. Atty., and Joseph W. Cash, Asst. U. S. Atty., all of Houston, Tex., and O. B. Wigley, of Galveston, Tex., J. L. Pitts, of Conroe, Tex., Julius H. Runge, of Dallas, Tex., and F. K. Dougharty, of Liberty, Tex., for appellees.

Before SIBLEY, WALLER, and LEE, Circuit Judges.

LEE, Circuit Judge.

In 1831 the Governments of Cohuila and Texas granted to James Hodge, on a survey and field notes made by Surveyor Wightman, what is known as the James Hodge Survey or the James Hodge League. While a dispute as to the location of the survey exists among the parties, all of them claim interests arising either out of record titles or out of estoppel, acquiescence, and limitation. To facilitate the description of the claims by the various parties within the survey, and to understand the pleadings, we attach a map taken form a survey of the James Hodge League made in 1942 by J. S. Boyles:

In 1846 the James Hodge Survey by deed was divided into two equal areas, the East and West halves. On his map Boyles shows this division by the line AA. In 1862 the owners of the Eastern half of the James Hodge Survey conveyed by acreage a 400- and a 210-acre tract off the Southeastern corner of the survey. On his map Boyles shows these two tracts, combined, between the line HH and the San Jacinto River. After these two tracts were split off, the owners of the balance of the East half of the James Hodge Survey split the unconveyed portion into halves. Boyles on his map shows the Western one-half as the area between AA and FF, and he shows the Eastern one-half as the area between FF and HH. In 1876 the owner of the Western half of the James Hodge Survey, shown by Boyles as the land West of line AA, split the land by deed into halves. Boyles shows on his map the division line as BB: one half lying between BB and the Western boundary of the James Hodge Survey and the other half lying between BB and AA. The lines BB, AA, FF and HH on his map were calculated by him and are not represented by any marks on the ground.

On December 6, 1941, the plaintiffs1 filed their original complaint against certain defendants2 in trespass to try title with alleged jurisdiction based upon diversity of citizenship.3 By a "first amended complaint," filed on October 1, 1942, the alleged residence of one plaintiff was changed,4 and numerous defendants were added.5 All persons, except the cotenants of the plaintiffs, claiming an interest in the James Hodge Survey were then parties before the court. The plaintiffs, as owners of an undivided half interest, asked judgment for the East half of the West half of the James Hodge Survey as they described it in metes and bounds (this claim is shown by Boyles as the land lying between AA and BB on his map) or the East half of the West half as the court might find it. They alleged that they knew not the exact nature of the claims of the defendants but that they were entitled to judgment against the defendants for title and possession and the removal of the cloud from their title.

By motions defendants, Perry McComb, et al., Grogan-Cochran, and the J. S. Hunt Lumber Co., Inc., unsuccessfully attacked the jurisdiction of the court over plaintiffs' original claim on the theory that plaintiffs' cotenants, who owned the other one-half undivided interest in plaintiffs' claimed East Half of the West Half, were indispensable to the suit and that their appearance in the suit with the then plaintiffs would destroy the diversity of citizenship between the plaintiffs and defendants.

On October 30, 1942, eighteen parties, including three nonresident aliens, citizens of Germany, intervened with permission of the court in the suit to assert claim to undivided interests to the East Half of the West Half of the James Hodge Survey. On January 10, 1944, these interveners, by an amended plea of intervention, adopted in substance the plaintiffs' "first amended complaint."6

On July 3, 1943, the United States intervened and alleged that the three nonresident aliens7 owned an undivided five-eighths (5/8) of one-fourth (¼) of the East Half of the West Half of the James Hodge Survey; that by an order of the Alien Property Custodian made on February 19, 1943, the interest of these alien nonresidents had vested in the Alien Property Custodian. The United States, in protection of the interests vested in the Alien Property Custodian, adopted the pleadings of the plaintiffs in their "first amended complaint."

On January 5, 1944, two other parties, Mrs. Ed. J. Drake and R. H. Moffatt, both residents of Texas, intervened to assert claim to their interests in the East Half of the West Half of the James Hodge Survey by adopting in substance the pleadings of the plaintiffs' "first amended complaint."

Both the plaintiffs and the different interveners claimed as cotenants without any conflicting interests among themselves. After these interventions, all the cotenants interested in the East Half of the West Half of the James Hodge Survey were before the court, and, consequently, all the interests in the survey were then before the court.

In order to understand the proper alignment of the parties for the purpose of determining whether the court had jurisdiction over the various claims, counterclaims, and cross-claims, it is necessary to determine beyond the actual formal pleadings what the controversies between the parties were at the trial. Only the McComb defendants actively disputed the correctness of the Boyles survey as to the location or the computed division of the James Hodge Survey. That does not mean, however, that all of the contentions of the defendants other than the McComb group were identical with those of the plaintiffs and interveners. The McComb group of defendants tried to establish a right to the land lying between AA and DD by way of estoppel and limitation on the hypothesis that their contention as to the incorrectness of the Boyles survey was not adopted by the court.

The Hunt Lumber Company and the Lamberton Drilling Company at the trial were primarily interested in proving title by estoppel, acquiescence, and limitation to the land lying between EE and FF, against the McComb group of defendants, who were claiming this same strip. No one was actively disputing the title of the Hunt Lumber Company and the Lamberton Drilling Company to the land lying between FF and GG and the adjoining land lying between the San Jacinto and Lake Creek, to which they had record title.8

Mrs. Zula Stewart, et al., claimed record title to the 610 acres shown in the Southeastern corner of the James Hodge Survey, between HH and the San Jacinto River, and claimed title to the land lying between GG and HH as shown on Boyles's map, by way of estoppel, acquiescence, and limitation.

At the trial the Sealy and Smith Foundation group of defendants and the Humble Oil & Refining Company were chiefly interested in, besides the establishment of the Boyles version of the survey and their record title to the West Half of the West Half thereof, the establishment of their title to the land shown by Boyles between the line BB and the Western boundary of the James Hodge Survey.

In its judgment the court below established the location of the James Hodge Survey by metes and bounds as shown by Boyles on his map; the land of the Sealy group as shown by the strip between BB and the Western boundary of the James Hodge Survey; the land of the plaintiffs and interveners as shown by the strip between lines BB and AA on Boyles's map; the land of the McComb group as that between lines AA and EE on Boyles's map; the land of the Hunt Lumber Company and the Lamberton Drilling Company as the strip between lines EE and GG and the adjoining land between the San Jacinto River and Lake Creek; and the land of the Stewart defendants as that between GG and the San Jacinto River.

Perry McComb, N. M. Garrett, and George Clyburn, three members of the McComb group of defendants, bring this appeal. The assignment of errors for this appeal may be classified into these questions: (1) Did the court below have jurisdiction over the various claims?9 (2) Did the court below err in making its finding of fact as to the location and divisions of the James Hodge Survey? (3) Did the court below improperly admit certain evidence?

Appellants' question as to the jurisdiction of the court below may be subdivided into four further questions: (1) Before the intervention of any of plaintiffs' cotenants, were the cotenants indispensable parties to the plaintiffs' claims? (2) Did the court have jurisdiction over the claims of the interveners and did their interventions destroy the original jurisdiction of the court? (3) Should the court below have realigned any of the defendants with the plaintiffs so as to destroy the diversity of citizenship between the plaintiffs and defendants? (4) Did the court have jurisdiction over cross-claims by the defendants Hunt Lumber Company and Lamberton Drilling Company, against the McComb defendants?

The cotenants of the plaintiffs were not, prior to their intervention, indispensable parties. Under the Texas law:

"* * * one tenant in common may maintain an action of trespass to try title without joining his cotenant. * * * one tenant in common may maintain an action of trespass to try title against a stranger.

* * * * * *

"The term `stranger,' as here used, means one who claims by title other than that asserted by the plaintiffs; or, more strictly speaking, one who, in deraigning title, does not in any way connect himself with that asserted by plaintiff."10

In speaking of tenants in common, the Supreme Court of Texas...

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