Taylor v. Higgins Oil & Fuel Co.
| Decision Date | 11 January 1928 |
| Docket Number | (No. 1213.) |
| Citation | 2 S.W.2d 288 |
| Parties | TAYLOR et al. v. HIGGINS OIL & FUEL CO. et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Liberty County; J. L. Manry, Judge.
Suit by H. Taylor and others against the Higgins Oil & Fuel Company and others. Judgment for defendants, and plaintiffs appeal. Affirmed in part, and reversed in part, and remanded.
See, also (Tex. Com. App.) 298 S. W. 891.
Llewellyn & Kayser, of Liberty, for appellants.
Stewart, De Lange & Milheiser, Huggins, Kayser & Liddell, Vinson, Elkins & Wood, and Bryan, Dyers & Colgin, all of Houston, L. C. Kemp, J. A. McNair, McDonald Meachum, and Baker, Botts, Parker & Garwood, all of Houston, W. W. Cruse, of Beaumont, and E. B. Pickett, Jr., and C. R. Wilson, both of Liberty, for appellees.
This is a boundary suit instituted by appellants H. Taylor, individually and as guardian of his four minor children, and H. Mecom against the Higgins Oil & Fuel Company and Houston Production Company, as defendants, for recovery of the title and possession of a tract of land of 1.27 acres out of the Jesse Devore league, in Liberty county, Tex. Other parties were brought into the case after its institution, but as their interests are merely incidental to the question involved, it is not necessary to make further reference to them. The existence and location upon the ground of this tract of 1.27 acres of land depends upon the location of the west boundary line of the league. Judgment was rendered against plaintiffs in the trial court upon an instructed verdict, from which they have duly prosecuted their appeal.
The first question to be considered is whether appellants, as plaintiffs, had such title as would support an action in trespass to try title. The Devore league was surveyed in 1835. By its calls for distance, the north boundary line of the league was 4,426 varas long. In 1854 the league was divided into east and west halves by surveying from the northwest corner. The northeast corner of the west half was fixed at a point by the call of the surveyor doing the work 2,213 varas east of the northwest corner. This same surveyor divided the west half into thirds by running the division lines parallel with the north and south boundary lines of the league. The owner of the north third sold to Caleb Higginbotham a tract of 50 acres out of the northeast corner of his third, 531.2 varas long by 531.2 varas wide. The north boundary line of this tract consumed 531.2 varas of the north boundary line of the league, running west from the middle division corner; that is, from the northeast corner of the west half. The east boundary line of this 50 acres consumed 531.2 varas off of the north end of the division line of the league running south that distance from the division corner in the north boundary line; that is, from the northeast corner of the west half. The lines and corners of this 50-acre tract were shown without controversy and no issue arose as to their location upon the ground. This 50-acre tract passed from Higginbotham to a man named Stengler and is known in the record and will be referred to hereinafter as the Stengler tract. H. D. Moor acquired title to 158.5 acres out of the north one-third of the west one-half, which said 158.5 acres was out of the extreme north end of the west one-half, and was 1,682 varas long by 531 varas wide. The north boundary line of this H. D. Moor tract was a common line with the north boundary line of the league from the northwest corner of the Stengler tract of 50 acres to the northwest corner of the league. The east boundary line of this H. D. Moor tract was a common line with the west boundary line of the Stengler tract for its entire distance of 531 varas. The west boundary line of this H. D. Moor tract was a common line with the west boundary line of the league south from its northwest corner for its distance of 531 varas.
After the death of H. D. Moor, by decree of the district court, his tract of 158.5 acres was partitioned among his three children in three parallel strips, each 1,682 varas long, running with the north boundary line of the league, and 177 varas wide. The north strip was awarded to the son, Hubert, the middle strip to the daughter Zona, and the south strip to the daughter Elsie. Hubert and Zona died without heirs other than their sister, Elsie, who inherited on their death their two strips of land. Before her death Zona sold a tract of 6.5 acres off the east end of her tract to a man named Canter. This tract of 6.5 acres was the width of the Zona Moor tract, that is, 177 varas, and its east boundary line was a common line with the Strengler west boundary line, for its distance of 177 varas. The northeast and southeast corners of the Zona Moor tract were in the Stengler west boundary line, and the north and south boundary lines of the Canter tract extended west from the Stengler west boundary line 217.7 varas for the northwest and southwest corners of the Canter tract. No issue arose as to the location of the lines and corners of the Canter tract. Elsie died, leaving surviving her her husband, Hubert Taylor, and four minor children. As guardian of his children, Hubert Taylor leased to H. Mecom a tract of land containing 4.48 acres off the east end of the Zona Moor tract with its northwest corner and its southwest corner in the north and south boundary lines of the Zona Moor tract and 143 varas west of the northwest and southwest corners of the Canter tract. These calls of the 4.48 acres consumed 143 varas of the north and south boundary lines of the Zona Moor tract, extending that distance west from the northwest and southwest corners of the Canter tract. On these calls the east boundary line of the 4.48 acres was a common line with the west boundary line of the Canter tract. Afterwards, Taylor for himself and wards executed a mineral lease to Nash on a tract of land containing 6.7 acres of the Zona Moor tract lying immediately west of the Mecom tract, and tied to that tract. This Nash tract had its northeast corner a common corner with the Mecom northwest, its east boundary line a common line with the Mecom west boundary line and its southeast corner a common corner with the Mecom southwest corner. The width of this 6.7 acres was the extreme width of the Zona Moor tract, that is, 177 varas, and the north and south boundary lines of this 6.7 acres extended west on the north and south boundary lines of the Zona Moor 213.69 varas for the northwest and southwest corners of this tract, that is, it extended this distance on the calls for distance, but there were other calls making the location of the west boundary line an issue. This lease was transferred to the Higgins Oil & Fuel Company, and will be referred to as the Higgins lease. The three tracts just named, that is, the Canter tract, the Mecom tract, and the Higgins tract, by their calls tied to the west boundary line of the Stengler tract and consumed 574.39 varas off the eastern end of the north and south boundary lines of the Zona Moor, extending that distance west from the west boundary line of the Stengler 50 acres.
Calling for the west boundary line of the league, Taylor for himself and wards executed a lease to Bevers on a tract of 20 acres of the Zona Moor, being the width of the Zona Moor, that is 177 varas, calling for the west boundary line of the league, and extending east from the west boundary line of the league with the north and south boundary line of the Zona Moor 637.8 varas for its northeast and southeast corners and east boundary line. After making the Bevers lease, Taylor for himself and wards leased a tract of 10 acres to Christian, with its southwest corner in the south boundary line of the Zona Moor 159.4 varas east of the southeast corner of the Bevers tract. From that point the south boundary line of the Christian lease extended east with the south boundary line of the Zona Moor tract 318.9 varas for its southeast corner, then north at right angles with its south boundary line across the Zona Moor to its north boundary line 177 varas for the northeast corner, thence west with the north boundary line of the Zona Moor 318.9 varas for its northwest corner, thence at right angles with its north boundary line across the Zona Moor tract 177 varas to the place of beginning. By its calls this tract must be located in reference to the Bevers tract. This lease passed to the Houston Production Company, and was owned by it at the time of the trial, and will be referred to as the Houston Production Company lease. There was left between the Bevers tract on the west and Houston Production Company tract on the east a tract of 5 acres, being of the width of the Zona Moor and 159.4 varas long. This was sold in fee by Taylor and his wards to Noble. By their calls for distance the three tracts just named on the west end of the Zona Moor, that is, the Bevers tract, the Houston Production Company tract, and the Noble tract, consumed 1,116.15 varas off the west end of the north and south boundary lines of the Zona Moor tract, extending east that distance from the west boundary line of the league. These calls for distance of the three tracts on the east, that is, 574.39 varas, and the calls for distance of the three tracts on the west, that is, 1,116.15 varas, produced a small conflict between the Higgins tract on its west and the Houston Production Company on its east on the theory that the west boundary line of the league is, in fact, only 1,682 varas west of the west boundary line of the Stengler 50 acres. The Houston Production Company tract did not call for the Higgins tract, nor was it by its calls tied to it in any way. The locative calls of the three tracts on the east tied them to the Stengler west boundary line, and the locative calls for the three tracts on the west tied them to the west boundary line...
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