Nye v. Hawkins

• Decision Date: 05 March 1886
• Docket Number: Case No. 2217.
• Citation: 65 Tex. 600
• Parties: THOS. C. NYE v. JAS. B. HAWKINS ET AL.
• Court: Texas Supreme Court

65 Tex. 600

THOS. C. NYE

v.JAS. B. HAWKINS ET AL.

Case No. 2217.

Supreme Court of Texas.

Mar. 5, 1886.

APPEAL from Matagorda. Tried below, before the Hon. Wm. H. Burkhart.

This cause, as it appears in 59 Tex. 97, is an action of trespass to try title. By the amended original petition, it was converted into a suit to establish a disputed boundary line. The general and special exceptions of the defendant's second amended original answer were sustained, and the case dismissed. The facts are sufficiently stated in the opinion of the court.Peareson & McCamly, for appellant, that the petition was good upon general exception, cited: Martin v. Brown, 62 Tex. 467;Collin v. Warren, 63 Tex., 318; Rules, District Court, No. 17.

As to the sufficiency of the petition, upon special exceptions to the facts stated to procure a settlement of the boundary, and to the change of the nature of the action, they cited: Hubert v. Bartlett, 9 Tex. 98;McCown v. Hill, 26 Tex. 359;Dement v. Williams, 44 Tex. 158;Robertson v. Mosson, 26 Tex. 249;Castleman v. Pouton, 51 Tex. 84;Corp. San Patricio v. Mathis, 58 Tex. 242;Davis v. Smith, 61 Tex. 18;Boon v. Hunter, 62 Tex. 583, 584;Stafford v. King, 30 Tex. 270;Muller v. Landa, 31 Tex. 266;Blumberg v. Mauer, 37 Tex. 2;Spence v. McGowan, 53 Tex. 32;Johns v. Schutz, 47 Tex. 579;Barbee v. Stinnett, 60 Tex. 167;Reeves v. Roberts, 62 Tex. 551;Jones v. Andrews, 62 Tex. 652, 653; 1, Wait's Act. and Def., p. 720, sec 10.

The following are cases to settle boundaries, but not in the form of trespass to try title: George v. Thomas, 16 Tex. 74;Swisher v. Grumbles, 18 Tex. 164;Browning v. Atkinson, 37 Tex. 633; Id., Smith v. Russell, 247; Wood v. Huffman, 5 Tex. Law Rev. 384; Hopkins v. Wright, 17 Tex. 35;Williams v. Randon, 10 Tex. 74; Id. Ayres v. Cayce, 99; Morrison v. Walker, 22 Tex. 19; Id., Weatherford v. Van Alstyne, 22; Irvine v. Bastrop, 32 Tex. 485;Governor v. Burdett, 27 Tex. 36, 37;Wooldridge v. Hathaway, 45 Tex. 380;McRee v. Brown, 45 Tex. 507;McLane v. Belvin, 47 Tex. 502;Tel. Co. v. Brown, 62 Tex. 536;Hanrick v. Hanrick, 63 Tex. 622;Thouvenin v?? Lea, 26 Tex. 614; Rules Distict Court, No. 12; 47 Tex. 618;Jones v. George, 56 Tex. 152.

Ballinger, Mott & Terry, for appellees, that the exceptions were properly sustained, cited, R. S., Art. 4784, Tyler's Law of Boundaries, chap. 22, 269-280; Story's Eq., sec. 615-617; Adams' Eq., 237, 238 (Ed. 181); Bispham's Eq., sec. 503, and cases there cited.

STAYTON, ASSOCIATE JUSTICE.

This cause was before this court at a former term and is reported in 59 Tex. 97. The action, as it then stood, was one of trespass to try title, the petition containing the averments usual and necessary in such an action. Since the former judgment was reversed and the cause remanded, the petition has been amended. By the petition, as amended, the plaintiff neither asserts that the defendants have, or ever had, possession of the land, or any part of the land claimed by him, which he describes by metes and bounds, nor that they have ever asserted claim thereto. R. S., Art. 4790. He expressly alleges that neither of the defendants has ever had possession of the land which he claims, and while he alleges that a controversy has arisen between them as to the true line between the lands which he claims and the land which he describes, and admits belongs to the defendants, yet he does not allege what the controversy is; does not allege that they claim the land which he asserts is his.

So far as we can know from the petition the controversy may not involve any claim by the defondants, which, if admitted, would take from the plaintiff any land of which he claims to be the owner.

In this state of the pleadings the allegations are manifestly not such as are essential in an action of trespass to try title.

A petition which does not allege an adverse possession or claim, in such an action, is bad, and subject to general demurrer. It is evident that it was the intention to abandon the action of trespass to try title, and to establish a boundary between the land described and claimed by the plaintiff, and that described by him and alleged to belong to the defendants. With a view to this the petition describes minutely the tracts of land alleged to belong to the respective parties, and places the lower boundary of the defendants' land at fixed points, which are said to be at the places where the line was actually placed by natural objects called for in a deed made in the year 1842, through which the defendants' claim. It is not denied that this line was located by natural objects called for and existing at the time the deed above referred to was made. The titles of the respective parties are fully set out in the petition, from which it appears, that, on December 22, 1880, the plaintiff bought from the heirs of the original grantee the unsold part of a league of land, of which that allged to belong to the defendants, and other tracts sold before that time, were a part.

The petition then contains the following averments: “Plaintiff further represents that there is no question of title involved between him and defendants, he admitting defendant's title to all the land conveyed as aforesaid by Duke to Sheppard, they having acquired the same since and being now the owners thereof, and defendants admitting his title to all the land in said league south of said tract sold by Duke to Sheppard, and west of Canoe Bayou, but a dispute has arisen between him and said defendants as to the proper locality of the lower line of said tract, and as to the place or locality where stood the said mesquite tree described in and referred to in said deed from Duke to Sheppard, and as to the quantity of land which plaintiff owns in said league, and plaintiff cannot use or enjoy to any advantage his said land in said league until the true boundary line between his and said defendants' land is fixed, declared and established by the proper decree of your Honor's court; that neither of said defendants is in actual possession of said 791 acres, or any part thereof, nor have they or either of them ever at any time been in such actual possession thereof.”

This is followed by a prayer to have a boundary line established by decree and that he be quieted in his title to the land claimed by him.

It is often the case that a disputed boundary line gives rise to acts or claims in which an action of trespass to try title may be maintained, and this is the usual remedy in such cases. No such acts or claims as would be sufficient to maintain that action being alleged, the inquiry arises whether an action simply to establish a boundary line may be maintained under the averments of the petition.

That courts of equity from early times, under certain circumstances, have exercised such a jurisdiction, is true, but no case is found in which this power was exercised on the sole ground that a boundary was in controversy. “The general rule now adopted is, not to entertain jurisdiction in cases of confusion of boundaries, upon the ground that the boundaries are in controversy, but to require that there should be some equity superinduced by the act of the parties, such as some particular circumstance of fraud, or some confusion where one person had ploughed too near another, or some gross negligence, omission or misconduct on the part of the person whose special duty it is to preserve or perpetuate the boundaries.” Story's Eq., 615; Pomeroy's Eq., 1384-1385; Adams' Eq 237; Tyler on Bound., 256-280; 2 Leading cases in Eq., 680.

These elementary works refer to many cases, illustrating the question. In this case there is nothing shown in reference to the conduct, situation, or relation of the parties to each other, or to the land, which gives rise to any peculiar equity.

The parties are shown to hold separate and...