Reed v. Phillips

• Decision Date: 05 February 1896
• Citation: 33 S.W. 986
• Parties: REED et al. v. PHILLIPS et al.
• Court: Texas Court of Appeals

33 S.W. 986

REED et al. v. PHILLIPS et al.

Court of Civil Appeals of Texas.

February 5, 1896.

Appeal from district court, Falls county; S. R. Scott, Judge.

Suit by M. S. Phillips and others to recover from T. D. Reed and others possession of certain lands. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

James Gameson and Rice & Bartlett, for appellants. Martin & Eddins, for appellees.

FISHER, C. J.

Appellees sued the appellants in trespass to try title to recover a certain tract of land, a part of the John Chamberlee survey in Falls county. The case is, in effect, one of boundary. The Chamberlee survey is rectangular in form, and contains about 1,900 acres. It was located by Gholsen, and for his services Chamberlee conveyed to him one-third. Gholsen and Chamberlee, during their lifetime, divided the survey into three blocks, running lengthwise of the survey. Chamberlee took the north and south blocks or subdivisions of the survey, and Gholsen the middle block or subdivision. Subsequently, the portions of the survey were partitioned and divided between the Chamberlee heirs, and the north third was divided into blocks 1 and 2, and the south third into blocks 3 and 4. Block No. 3, which was the southwest part of the survey, was allotted to Mrs. Young, an heir of Chamberlee. The appellees hold and claim title under Mrs. Young to the southwest part of the Chamberlee survey. The appellants claim title to the Gholsen subdivision of the survey. The real question in controversy is, where is located the dividing line between the Gholsen subdivision of the survey and the south one-third of said survey, which was kept by Chamberlee? In other words, where is located the south line of the Gholsen, at and near its west terminal, and where is located the north line of the Chamberlee south subdivision, near and at its west end? There is evidence that establishes the location and whereabouts of the southwest corner of the Chamberlee survey. The appellees (plaintiffs below) contend that the north boundary line of their land is to be located and established 1,000 varas north of the southwest corner of the Chamberlee survey. The appellants claim that plaintiffs' land should not extend so far north, but that their north line should stop at a point 798 or 763 varas north of said southwest corner of the Chamberlee survey. It is the land between these two points contended for that is the subject of controversy here.

In the partition of the Chamberlee lands between his heirs, it may be assumed, and we think there is evidence to warrant it, that the southwest portion of said survey, which was set apart to Mrs. Young, should, for its north line, extend to the south line of the Gholsen subdivision of said survey. Mrs. Young and her husband, in 1878, by deed, sold the land to R. B. Burell, and at that time they had a surveyor, by the name of Wescott, survey the land and establish its lines. The deed so made called to commence at the southwest corner of the Chamberlee survey, and the west line of said land, so conveyed, was called to extend 763, and the east line 798; and, where these calls reached north that distance, is also a call for the south line of a tract of land owned by Dunklin, and thence along the south line of that survey. The south line of the Dunklin, it seems, is identical with the south line of the Gholsen, as it appears that Dunklin once owned the Gholsen subdivision of the Chamberlee survey. When Surveyor Wescott reached the points 798 varas and 763 varas north of the south line of the Chamberlee, he established the line by means of marks which are found and identified as being about the distances called for in deed,—that is, 798 varas and 763 varas north of the south line of the Chamberlee survey. The plaintiffs in the case claim to hold under the deed, and also another, which will be noticed...