Stevens v. Crosby

• Citation: 166 S.W. 62
• Decision Date: 05 March 1914
• Docket Number: (No. 289.)
• Parties: STEVENS et al. v. CROSBY et al.
• Court: Court of Appeals of Texas

166 S.W. 62

STEVENS et al. v. CROSBY et al.

(No. 289.)

Court of Civil Appeals of Texas. El Paso.

March 5, 1914.

On Rehearing, April 23, 1914.

Appeal from District Court, El Paso County; Dan M. Jackson, Judge.

Action by Josephine Crosby and others against H. B. Stevens and others. From a judgment for plaintiffs, defendants appeal. Reversed and remanded.

Millard Patterson, T. A. Falvey, J. A. Buckler, and J. F. Woodson, all of El Paso, for appellants. Stanton & Weeks, McBroom & Scott, and D. Storms, all of El Paso, for appellees.

HIGGINS, J.

Appellees brought this suit in trespass to try title to recover survey No. 144 on the north bank of the Rio Viejo, in El Paso county, patented to Juan and Jacinto Ascarate on September 14, 1886, described in first amended original petition as follows: "Beginning at a cottonwood post on the bank of the Rio Viejo, south 545 varas from the northeast corner of the G. M. Collingsworth survey No. 14; thence down the north bank of the said Rio Viejo following its meanders, as follows: North 73° east 180 varas; south 83° east 353 varas; thence south 23° east 332 varas; thence south 22° west 92 varas; thence south 1° west 126 varas; thence south 24° east 166 varas; thence south 41° east 138 varas; thence south 43½° east 74 varas; thence south 76° east 185 varas; thence south 64½° east 490 varas to a stake set in the present county road; thence south 62° 41' east 584.2 varas; thence south 67° 31' east 270 varas to a stake set on the G. H. & S. A. Ry. right of way; thence," etc.

The foregoing portion of field notes is quoted in view of the filing of a trial amendment to the petition to which attention is hereafter directed.

The land was surveyed and patented by virtue of an act of confirmation of the Legislature approved February 11, 1858. 4 Gammel's Laws, p. 1027. This act relinquishes the right of the state in several tracts of land to various claimants, including Juan and Jacinto Ascarate, to whom three leagues were relinquished called "El Rancho de Ascarate." The lands were not specifically described, and the act further provided that the lands should be surveyed, platted, and patents issued in accordance with existing laws. In accordance with this act, the land was surveyed by one Randolph in 1886, and, as stated above, patented September 14, 1886.

By an act approved January 31, 1854 (4 Gammel's Laws, 42), two leagues of land were granted to the inhabitants of the town of Ysleta, "commencing at the northwest [should be southwest] corner of the town tract of Ysleta on the Rio Grande; thence up said river with its meanders to the point where the Rio Grande and the Rio Viejo separate; thence down the east bank of the Rio Viejo to the southwest corner of survey number twelve, located in the name of T. H. Dugan, etc." Some time prior to the grants to the Ascarates and inhabitants of Ysleta, the Rio Grande had changed its course, and the term "Rio Viejo" is a Spanish one meaning "Old river." The Ascarate grant is situate north and northwest of the Ysleta grant. It will be noted that the north line of the western portion of the Ysleta grant is the east (it would more properly be termed north) bank of the Rio Viejo. The south line of the Ascarate is likewise the east (more properly north) bank of the Rio Viejo, and Randolph, when he surveyed the grant, undertook to locate and describe the meanders of the Old river by course and distance.

The defendants in the cause, appellants here, disclaimed as to all of the land sued for, except a certain parcel, which they described by metes and bounds, and claimed under chain of title emanating from Ysleta as a part of the grant to its inhabitants aforesaid. The parties entered into a stipulation by which it was agreed that as to the premises involved, and which, in fact, were situate within the boundaries of the Ascarate grant, claimed by plaintiffs, that the record title was in plaintiffs, and, if shown, in fact, to be situate within the limits of the Ysleta grant, that the record title was in defendants.

The south line of the Ascarate grant, as described by course and distance in the survey and patent, embraces the land claimed by appellants as a part of the Ysleta grant. It is patent from the foregoing statement that the east or north bank of the Rio Viejo is the dividing line between the Ascarate and Ysleta grants eastward or downward from the junction of the New and Old rivers, and, in case of conflict between the course and distance calls in the south line of the Ascarate patent and the Rio Viejo, the latter will prevail, and that the Ysleta grant would take precedence over the Ascarate to the extent of the conflict. As to this phase of the case, the suit thus resolves itself into one of boundary; the issue being as to the true location of the Rio Viejo downward from its junction with the new river at the date of the Ysleta grant in 1854. The foregoing statement will not adequately and fully portray the location of the lands in controversy and the two original grants, but it could not be done completely without incumbering the record with maps. It is deemed sufficient, however, for the purposes of this opinion.

The Ascarate grant, as sued for and described in the petition, followed the description given in the patent, and which, as stated, was based upon Randolph's survey in 1886. By a trial amendment appellees changed the calls for course and distance of the south line of the Ascarate, so as to circumscribe and lessen the area of land claimed in the southern portion of the grant, and disclaimed as to the land south of the line fixed by the trial amendment. This amendment reads: "That said plaintiffs so amend their first amended original petition so that the calls beginning at the point 545 varas south of the northeast corner of the Collingsworth survey No. 14, shall read as follows, to wit: N. 73 deg. E. 180 varas, S. 83 deg. E. 453 varas, S. 23 deg. E. 332 varas, S. 22 deg. W. 94 varas, S. 1 deg. W. 65 varas, N. 60 deg. 30' E. 214.5 varas; thence S. 76 deg. E. 185 varas, thence S. 64 deg. 30' E. 490 varas crossing the railroad, S. 12 deg. W. 104 varas, S. 71 deg. E. 140 varas, S. 25 deg. E. 120 varas, S. 33 deg. 30' E. 53 varas; thence S. 55 deg. E. 540 varas, S. 67 deg. E. 270 varas, from which said 270-vara call the line follows as in the `first amended original petition.' That said plaintiffs further represent that, by reason of an erroneous survey of said line comprising the south boundary line of the Ascarate grant near the beginning point thereof, as above shown, the plaintiffs believed that the land lying south of said line and survey above set forth was not within the boundaries of the Ascarate grant, and have filed in other causes involving the title to said grant pleadings setting forth the said line above described as the south boundary line of the Ascarate grant and the north bank of the Old river; that, by reason of the fact that said land lying between the said boundary line set forth above and the more recent surveys made by R. J. Owen, J. W. Eubank, county surveyor, and Deputy County Surveyor F. E. Baker, correcting the former survey as shown by the above line, the said plaintiffs inserted in their said first amended original petition the field notes of such corrected survey; and plaintiffs further aver that they hereby disclaim for the purpose of this suit only any title, ownership, or possession of the land and premises lying south of the boundary line hereinbefore set forth and shown by the foregoing field notes, and between same and the lines as recently run by the surveyors aforesaid, and they further reserve all rights which were available to them under their former pleadings in this cause, except their claim of and to the property hereinbefore described and situated south of the field notes hereinbefore set forth and the line as run by said recent surveys; but plaintiffs hereby reserve their right to show by the testimony heretofore introduced and by the testimony that may be introduced in the trial of this cause the true boundary line of the said Ascarate grant, and also the true boundary line of the Ysleta grant No. 2, as the same was run by the original surveys of the said grants upon which patents were issued and have been introduced in evidence; and plaintiffs further represent that this trial amendment is filed for the purposes of this suit only, and that said plaintiffs reserve all their rights in any other suits that are pending or may be brought by the plaintiffs in reference to the said grant made to Juan and Jacinto Ascarate, and in reference to the ownership of plaintiffs thereof, or as to any suits pending or that may be filed against the plaintiffs herein involving the title to said Ascarate grant. Wherefore the said plaintiffs pray judgment of the court decreeing them title to and possession of all the land and premises described in plaintiffs' first amended original petition filed in this cause on the 20th day of March, 1913, except as to the land and premises shown by the above amendment and disclaimer, and lying southerly of the field notes hereinbefore set forth."

The effect of the change in the course and distance calls is to lessen the conflict between the land originally claimed by appellees, and that of appellants, as the line fixed by the amendment was north of the south line as originally described by course and distance.

The first four assignments question the sufficiency of the evidence, appellants' contention being:

First: "That the plaintiffs did not prove that the north line of the Rio Viejo extended along the line alleged by them, and consequently the verdict and judgment are contrary to, and not supported by, the evidence, and should have been for the defendants."

Second: "That the evidence clearly shows that the north bank of the Rio Viejo extended along the north line of tract claimed by defendants, and consequently the verdict and judgment should have been in...