Stover v. Gilbert
| Decision Date | 14 February 1923 |
| Docket Number | (No. 389-3586.) |
| Citation | 247 S.W. 841 |
| Parties | STOVER v. GILBERT et al. |
| Court | Texas Supreme Court |
Trespass to try title by J. A. Stover against Dick Gilbert and others. The Court of Civil Appeals affirmed a judgment of the district court for defendants, and on motion for rehearing certifies questions for determination. Questions answered.
Moyers & Creighton and W. L. Dean, all of Mineral Wells, and Thompson, Barwise, Wharton & Hiner, of Fort Worth, for appellant.
Penix, Miller & Perkins, of Mineral Wells, and Hood & Shadle and H. L. Moseley, all of Weatherford, for appellees. Certified Questions.
This case comes to us on certified questions from the honorable Court of Civil Appeals for the Second District. The certificate is a lengthy one, and we do not find it necessary to state, other than in a concise manner, the facts which we consider necessary in making disposition of the case.
The suit was brought in the district court of Palo Pinto county by J. A. Stover against Dick Gilbert and others, in the form of trespass to try title to 512 acres of land in Palo Pinto and Parker counties, which was patented to him by the state September 23, 1918. The appellees are the owners of what is known as the east Allen Williams survey of 13 labors, which was patented June 16, 1858. In addition to general denial and plea of not guilty they allege that the land claimed by the appellant, Stover, was included in and was a part of the east Allen Williams survey which they owned. Upon a trial of the case in the district court it was submitted on one special issue, which was answered favorably to the appellees, and judgment was entered in their behalf for the land in controversy, and canceling the Stover patent. The case was appealed to the Court of Civil Appeals for the Second District, and was there affirmed. However, on motion for rehearing that court has certified two questions for determination.
It is the contention of the appellant that the eastern boundary line of the Allen Williams survey must be located by calls for course and distance from its southwest corner, and when this is done it will leave his survey of land between said line and the Brazos river, and the same will be free of any conflict with the Williams survey. It is the claim of the appellees that the Brazos river is the eastern boundary line of the Allen Williams survey, extending from its southwest corner to its northeast corner, and, if this be true, then it appropriates the land covered by the Stover patent. The field notes of the east Allen Williams survey which were made May 16, 1852, and which are incorporated into the patent, are as follows:
There is practically no dispute about the material facts. The northeast corner of the east Allen Williams survey is well established on the ground, being on a high hill about a quarter of a mile, or farther, from the Brazos river. The north line of this survey, as well as its northwest corner, and its west line are well established and identified on the ground. By beginning at the southwest corner of the Allen Williams survey and following the calls for course and distance to the northeast corner the same will become the west boundary line of the J. A. Stover survey, and will leave it free of conflict. However, by beginning at the southwest corner and running said calls for course and distance the line will cross the Brazos river into Parker county, then run into the channel of the river and follow it for more than a mile distance, and it then leaves the river and runs the balance of the distance on the west side.
It appears that no marks of any kind can be found on the ground showing the location of the different calls for course and distance given for the eastern boundary of the Williams survey, although there is virgin timber along these lines for a considerable part of the entire distance. The meander lines follow the general course of the river, except there is a considerable departure at one place where there is a bend in the river.
The Court of Civil Appeals has forwarded the statement of facts and the numerous plats and maps that were offered in evidence. While we do not customarily refer to the statement of facts for evidence not disclosed by the certificate, yet, as the certificate was silent with reference to marks showing the location of these lines on the ground, and deeming the evidence upon the matter material, we have in this instance examined the statement of facts, and find the evidence as above stated. The maps and plats were no doubt sent up for our inspection, and we have examined same when necessary.
The trial court submitted to the jury one special issue as follows:
To this question the jury answered, "Yes."
Upon the trial a great deal of testimony was admitted with reference to an old marked line running from the northeast corner of the Williams survey a distance of 680 varas to a corner on the bank of the river, which the witnesses testified they had known for 35 or 40 years. None of them knew as to when the line was made, or who made it. In one place it is shown that this old line runs south 18 west to the river, while in another place and in the question propounded it is referred to as running south about 680 varas to a corner on the bank of the river. There was also testimony by a great many witnesses who had lived in the neighborhood of this land for many years as to general reputation concerning the east boundary line of the Williams survey, and many of them testified that by general reputation the east line of the survey was the Brazos river. None of these witnesses had seen the field notes in the patent, and none of them knew anything as to the actual survey on the ground, and none of them had any knowledge, except from hearsay and general repute, as to the location of said boundary.
The Honorable Court of Civil Appeals has certified for our determination two questions in substance as follows:
1. Was parol testimony admissible to establish the old line from the northeast corner of the Allen Williams survey to the bank of the Brazos river as a part or portion of the boundary line of said survey, in the absence of testimony showing that the surveyor who located said survey actually marked said line on the ground, and in the absence of any call in the patent for the lines and objects testified to by the witnesses?
2. If under the facts and circumstances of the whole case parol testimony was admissible for the purpose of establishing by general reputation that...
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