Southern Pine Lumber Co. v. Whiteman

• Decision Date: 05 March 1937
• Docket Number: No. 1636.,1636.
• Citation: 104 S.W.2d 635
• Parties: SOUTHERN PINE LUMBER CO. et al. v. WHITEMAN et al.
• Court: Texas Court of Appeals

104 S.W.2d 635

SOUTHERN PINE LUMBER CO. et al. v. WHITEMAN et al.

No. 1636.

Court of Civil Appeals of Texas. Eastland.

March 5, 1937.

Rehearing Denied April 16, 1937.

Appeal from District Court, Cherokee County; C. E. Brazil, Judge.

Suit in trespass to try title by W. T. Whiteman and another against the Southern Pine Lumber Company and another. Judgment for the plaintiffs, and the defendants appeal.

Reversed and remanded.

Guinn & Guinn, of Rusk, Felix A. Raymer, of Houston, and R. E. Minton, of Lufkin, for appellants.

W. H. Shook, of Dallas, and Norman & Norman, of Rusk, for appellees.

FUNDERBURK, Justice.

This is a suit in trespass to try title brought by W. T. Whiteman and E. M. Decker against Southern Pine Lumber Company and Humble Oil & Refining Company, to recover a tract of land in Cherokee county patented to R. K. Gentry. The land was described in plaintiffs' petition the same as in the patent to said survey, "except" as alleged "that the call for distance of the east line of the Gentry Survey, running from the southeast corner thereof to the southeast corner of the N. Newton Survey No. 393, should call for an additional 57.6 varas, or 160 feet, or a total distance in feet of 2566 feet or 923.6 varas, which was the east line actually run on the ground and called for by the patent." The call in the patent thus referred to was "thence N. with said W. B. line [of the M. L. Harrison Survey No. 345] 866 varas to the S. E. corner of the N. Newton Survey No. 393."

The defendants filed a disclaimer of all the land except that described as lying "south of the line which begins at a stake in the W. B. line of the lower M. S. Harrison Survey No. 345, about 304 vrs. south of said Harrison's N. W. corner, said point being 230 varas south of a branch running west which crosses said W. B. line near its N. W. corner, and said point is also about 10 varas south of the Alto-Palestine public road; thence West (or S. 89 W.) with an old marked line at 710 varas cross Spring branch at 1040 vrs. the W. B. line of the Winey Meredith Survey No. 297."

So far as deemed material to state, the defendants pleaded a general denial and not guilty. There was an additional plea of 10 years' limitation which described the land to which it applied as follows: "Beginning at the point in the W. B. line of the M. S. Harrison Lower Survey No. 345, claimed in plaintiffs' petition to be the N. E. corner of the R. K. Gentry Survey, which point is 50 varas south of a spring branch flowing W. across said Harrison W. B. line; thence W. 1040 varas; thence S. 174 varas; thence E. with an old marked line, claimed by defendant to be the Nichols Newton S. B. line 1040 varas to a stake about 10 varas S. of the Alto-Palestine public road, said stake being in the aforesaid Harrison W. B. line; thence N. with the said line 174 varas to the place of beginning."

A single issue was submitted to a jury as follows: "Do you find from a preponderance of the evidence that the true line between the R. K. Gentry Survey and the Nichols Newton Survey is as contended by the plaintiffs?" The answer was, "Yes." Upon this verdict judgment was rendered for the plaintiffs awarding recovery of said R. K. Gentry survey describing it with reference to the patent record and also by metes and bounds. In the description by metes and bounds, the east and north boundary lines were: "Thence N. 923.6 varas to S. E. corner of the N. Newton Survey, being 1630 vrs. S. of the N. E. corner of the N. Newton Survey No. 393, and being also 1630 vrs. S. of the N. W. corner of the M. S. Harrison Survey No. 345; thence W. with the S. B. line of said N. Newton Survey No. 393, 1064 vrs. to the E. B. line of the aforesaid Winey Meredith Survey, being also the S. W. corner of the N. Newton Survey, and being at a point 1819 vrs. S. of the N. W. corner of such survey, and being 1819 vrs. S. of the intersection of the E. line of the J. M. Box Survey with the N. line of the N. Newton Survey No. 393, which is also the S. B. line of the Levi Jordan League. * * *"

The defendants have appealed.

The record discloses that the only issue concerning the title of the plaintiffs to the entire R. K. Gentry survey as described in their pleadings was the location on the ground of the north boundary line — a common boundary line with the N. Newton survey, being the south boundary line of the latter. The suit is therefore a boundary suit. Aside from defendants' pleas of limitation which were abandoned as a basis of the court's judgment, it appears certain that the determination and location on the ground of the north boundary line of the Gentry survey, admittedly the south boundary line of the Newton survey, would have the effect of settling every matter in dispute between the parties. That, we think, is sufficient warrant for the statement that the suit as finally developed was simply one to determine a disputed boundary line. Cox v. Finks, 91 Tex. 318, 43 S.W. 1; Schley v. Blum, 85 Tex. 551, 22 S.W. 667; Steward v. Coleman County, 95 Tex. 445, 67 S.W. 1016; Wright v. Bell, 94 Tex. 577, 63 S.W. 623.

It is contended that the court erred in rendering judgment based upon the verdict of the jury; that the verdict determined nothing, but left the case just where it began, with the result that the officer charged with putting the plaintiffs in possession must determine the boundary line between the Newton and Gentry surveys by running course and distance from disputed starting points not determined judicially by the decree.

To the single issue submitted, the appellants objected, among other things, that "The court does not define where the plaintiffs contend the line between R. K. Gentry and Nichols Newton Surveys is located and the issue is therefore misleading and confusing." Also, "The answer of the jury to the issue as framed would be insufficient upon which to predicate a judgment." Since a judgment is required, among other things, to conform to "the verdict, if any" (R.S.1925, art. 2211, as amended by Acts 1931, c. 77, § 1 [Vernon's Ann.Civ.St. art. 2211]), it seems clear that the court should not render judgment on a verdict which does not determine the disputed issues in the case. As said before, there was but one issue submitted and in so far as the suit was only a boundary suit, as in its final development we think it was, there was but one issue in the case, namely, the location on the ground of the common boundary line between the Gentry and Newton surveys. There were many disputed facts in the case deemed by one or the other of the parties to be evidentiary upon the single issue, but it was not the duty of the court to determine by its judgment the truth or falsity of evidentiary facts. That was peculiarly the function of the jury, but only incidentally, as a means of determining their verdict. The law provides no procedure for recording a jury's findings of evidentiary facts and there is therefore no way of knowing such findings except as a matter of possible inference from the verdict.

The verdict of the jury in this case did not itself locate, nor furnish the means of locating, the disputed boundary line on the ground. This is apparent from the fact that the issue in the form given only called for an answer as to whether such boundary line was "as contended by the plaintiffs," without stating the location on the ground which plaintiffs contended was the true line. Parenthetically, it may here be remarked, that, conceivably, the jury may have been of the opinion that the true line was as contended by the plaintiffs and yet have had no opinion of their own as to the actual location of the line. Where did plaintiffs contend the boundary line was located? Was it plaintiffs' contention that it was located with reference to definite described objects then on the ground and about which there could be no controversy? Or, with reference to old lines, corners, once existing objects, etc., the subject of possible dispute or uncertainty? How was it made known to the jury where plaintiffs contended the line was located — by their pleadings or their evidence or by both? Unless the answers to these, and perhaps other questions, could be found in the terms of the verdict itself, which manifestly they cannot, there is no way of knowing from the verdict where the jury intended to find the boundary line was located, nor does the verdict furnish any means of locating it on the ground.

It would perhaps be conceded that such a verdict would be no more effective support for a judgment settling the disputed boundary line than would be the case had there been a general verdict: We the jury find for the plaintiffs. Under the pleadings, we think such general verdict would have been insufficient. Plaintiffs' petition gave no other description of the disputed line than that contained in the patent of the Gentry survey. The only variance alleged was in an immaterial matter. It was alleged, in effect, that whereas the patent called for the east line to run north 866 varas, it should be 923.6 varas, but in any event it ran "to the southeast corner of the N. Newton Survey No. 393," there being no other description of said corner. Whether the length of the line was 866 varas or 923.6 varas, or more or less, was immaterial except as, in itself, inconclusive evidence of the location of the Newton southeast corner. Therefore, a general verdict for plaintiffs would have had no effect in settling the dispute as to the location of the boundary line. A judgment awarding a plaintiff recovery of a tract of land by the same description as his title papers manifestly could have no effect in settling a dispute as to the actual location on the ground of one or more of the boundary lines. Hence, it is considered to be a settled proposition that in a trespass to try title suit wherein the only controversy concerns the location on the ground of a boundary line between plaintiff's land and the land of another adjoining his, it is...