Redman v. Cooper

• Decision Date: 13 March 1942
• Docket Number: No. 14339.,14339.
• Citation: 160 S.W.2d 318
• Parties: REDMAN et al. v. COOPER.
• Court: Texas Court of Appeals

160 S.W.2d 318

REDMAN et al. v. COOPER.

No. 14339.

Court of Civil Appeals of Texas. Ft. Worth.

March 13, 1942.

Appeal from District Court, Montague County; Earl P. Hall, Judge.

Suit by Ed Cooper against Mary Katherine Redman and others in trespass to try title. From a judgment for plaintiff, defendants appeal.

Affirmed.

Brannan & Tipps, of Wichita Falls, for appellants.

Homer B. Latham, of Bowie, for appellee.

BROWN, Justice.

Appellee Cooper brought suit in trespass to try title against appellants, and pleaded that if appellants ever had any claim or title to the 30 acres in controversy they had lost same by reason of the statute of limitations of ten years, R.C.S. art. 5510, he and those under whom he claims having had adverse possession of same for more than ten years prior to filing suit.

Tried to a jury, only the issue of peaceable and adverse possession for ten years was submitted and same being answered favorably to appellee, judgment was rendered for him and the defendants below appealed.

The points advanced in appellants' brief are copied verbatim from the motion for a new trial.

We do not believe that we are warranted in considering the first and second points, or assignments of error. They are: "(1) Because the verdict of the jury is contrary to the evidence", and "(2) Because the judgment of the court is contrary to the law".

See Rule 322, and Clarendon Land, etc., Co. v. McClelland, 86 Tex. 179, 23 S.W. 576, 1100, 22 L.R.A. 105.

If it is our duty to consider these assignments of error, we find no merit in them, as further shown in the opinion.

The third assignment of error asserts that the trial court erred in refusing to grant appellants' motion for an instructed verdict, in that the plaintiff has wholly failed to show that he and his predecessors in title have been in possession of, or claimed the specified tract of land as described in plaintiff's petition for a period of ten years next preceding the filing of the suit.

It is readily deducible from the evidence that more than thirty years ago when W. T. Small and wife executed a deed to J. W. Robertson conveying by metes and bounds a certain tract of 80 acres, and including in the deed the words, "more or less", that they delivered to Robertson a tract of land under fence, and that Robertson went into possession, and that he and those under him down to appellee Cooper have had actual, adverse and peaceable possession thereof for more than 30 years; and it is likewise readily deducible from the evidence that the 30 acres in controversy lie within the boundaries of the fence that was on and has been continuously on and around the land, the possession of which was delivered to Robertson by Small.

A plat was made by plaintiff and introduced in evidence. When this plat was introduced in evidence it is made to appear that it purported to show the fence lines around the property claimed by the plaintiff, and the measurements of such lines.

The court permitted the plat to be introduced in evidence for the purpose of "substantially showing the shape of the land". The boundary measurements made by the plaintiff were denied admission by the trial court, and the objection made by appellants was: "I want to make this objection: The thirty acres he's sued for is set out by metes and bounds, and if that number is larger or smaller it will change the number of acres in that (evidently meaning the land embraced in the pleading), and now you are permitting him to testify as to all the fence lines. If these are enlarged, it will vary the number of acres involved in that piece of ground."

After the plat was introduced in evidence for the sole purpose of "substantially showing the shape" of plaintiff's land, appellants cross-examined the plaintiff on the plat and asked him: "Where is this excess land? Where is your 80 acres that you got a deed to?" To which the plaintiff answered: "I don't know just what part of it the deed covers", and the further questions were then propounded to plaintiff and answered by him:

"Q. You don't know where that thirty acres is that you are suing for? A. There's thirty acres of excess land, all right, but there's no markers anywhere. It's all under my fence.

"Q. But you don't know where it is. There's no way to determine it? A. No, sir."

We wish to observe that we are of opinion that the trial court erred in not permitting the measurements, as shown by the plat, to be introduced in evidence.

We know of no rule of law that would deny a party litigant suing for land inside of his fence from measuring his fence lines and testifying to measurements and to the number of acres within the fence lines. It takes no surveyor to do this. Any child who has gone through the sixth or seventh grade of our public schools can make such calculation with reasonable accuracy. Texas & N. O. R. Co. v. Broom, 53 Tex.Civ. App. 78, 114 S.W. 655, writ refused.

We cannot say that, with the several deeds, the testimony of Jim Small and the other testimony before it, there was no evidence to support the verdict of the...