Southern Pine Lumber Co. v. Whiteman

• Decision Date: 07 May 1942
• Docket Number: No. 5939.,5939.
• Parties: SOUTHERN PINE LUMBER CO. v. WHITEMAN et al.
• Court: Texas Court of Appeals

163 S.W.2d 212

SOUTHERN PINE LUMBER CO. v. WHITEMAN et al.

No. 5939.

Court of Civil Appeals of Texas. Texarkana.

May 7, 1942.

Rehearing Denied June 11, 1942.

Appeal from District Court, Cherokee County; J. W. Chandler, Judge.

Action in trespass to try title by W. T. Whiteman and others against the Southern Pine Lumber Company and others. From a judgment in favor of plaintiffs, the named defendant appeals.

Judgment affirmed.

Guinn & Guinn, of Rusk, and R. E. Minton and J. O. Minton, both of Lufkin, for appellant.

Norman, Stone & Norman, of Rusk, and Shook & Shook, of Dallas, for appellees.

HALL, Justice.

This is an action in trespass to try title instituted by appellees to try title to the Gentry survey containing 160 acres of land located in Cherokee County; the 2d count therein seeks to establish the boundary between the Gentry survey on the South and the Newton survey on the North. Appellant disclaimed as to a part of the Gentry survey, and as to that part not disclaimed, pleaded not guilty and the 10 and 25 years' statutes of limitation, R. C.S. Articles 5510, 5519, Vernon's Ann.Civ. St. arts. 5510, 5519. Trial was to a jury on special issues. Based upon testimony offered solely by appellees (appellant offered none), the jury's verdict was for them. The judgment followed the verdict. The suit as originally brought was against appellant, Humble Oil & Refining Company, and Fidelity Oil & Royalty Company, the last two named being disposed of in the trial court are not parties to this appeal. This is the second appeal of this case, the first is reported in Tex.Civ.App., 104 S.W. 2d 635.

By appellant's 1st point, it is asserted that appellees "failed to show title connecting them with the sovereignty as to the portion of the land not disclaimed by the defendant." This point is overruled. The evidence taken as a whole reflects that appellees have title to at least an undivided portion of the Gentry survey. This fact, as we interpret appellant's brief, is not seriously contested by it. A cotenant owning less than the whole of a tract of land may maintain an action, as against a stranger to the title, to the entire tract of land. 41 T.J. 472 Sec. 17, and the numerous authorities there cited supporting the text. This is for the obvious reason that each cotenant is entitled to possession of the premises. But appellant contends that appellees' evidence did not show it to be a trespasser, and therefore they "are not entitled to recover as a cotenant owning less than all." In a trespass to try title action the answer of the defendant to the merits by plea of not guilty (as here) relieves the plaintiff of the necessity of proving a trespass and is an admission by defendant for the purpose of that action (trespass to try title) that he was in possession of the premises sued for. R.S. Art. 7374; Cook v. Dennis, 61 Tex. 246; Plummer v. Marshall, 59 Tex.Civ.App. 650, 126 S.W. 1162, writ refused; Mosley v. Black, Tex.Civ. App., 110 S.W.2d 611, reversed on other grounds 133 Tex. 479, 130 S.W.2d 858.

Appellant's points 2, 3 and 4, are:

"2. The undisputed evidence shows that none of the objects called for can now be found on the ground, but that the Gentry survey can be located by its courses and distances between its divergent and undisputed east and west lines on the ground, and when given such location all of its courses, distances and acreage calls are satisfied, and the courses and distances of adjoining surveys are satisfied, and such location is not the one claimed by the plaintiffs and established by the judgment.

"3. There is no competent evidence to support the judgment.

"4. The undisputed evidence shows that the northeast corner of the Newton survey is not at the point from which course and distance was projected to locate the Newton southeast corner from which the boundary between the Newton and Gentry surveys was run west."

It is undisputed that the South line of the Newton survey is identical with the North line of the Gentry survey and constitutes the dividing line between appellant's and appellees' claims. The proper location of this dividing line on the ground is decisive of this action. This is the ultimate issue and all evidence of other lines and corners of these and adjoining surveys is referable to this ultimate issue. The case, then, in our opinion, becomes one respecting a disputed boundary between the two surveys. The Newton survey being senior to the Gentry, and the Gentry's North line called to be identical with the South line of the Newton, the proper location, then, upon the ground of the Newton South line, regardless of where it may be, is conclusive of the location of the division line between them and the ultimate issue here. On July 13, 1847, A. Gibson surveyed the M. S. Harrison survey No. 342, which lies immediately East of the Newton survey, establishing its North line along the South line of the Levi Jordan and its Northwest corner in the Jordan South line. This fact was indisputably shown by the deed records of Nacogdoches County where the field notes of said survey are recorded with the following certificate of the surveyor:

"I, A. Gibson, a deputy surveyor for Cherokee County, do hereby solemnly swear under my official oath that the survey designated by the foregoing plat and field notes was made by me on the 13th day of July, 1847, and the lines, boundaries, and corners of the same together with the marks, natural and artificial, are truly described therein.

"Witness my hand this the 19th day of October, A. D. 1847.

                                    "Absalom Gibson
                                    "Deputy Surveyor

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