Tomlinson v. Noel, (No. 9360.)

• Decision Date: 12 June 1920
• Docket Number: (No. 9360.)
• Citation: 223 S.W. 1028
• Parties: TOMLINSON et al. v. NOEL et al.
• Court: Texas Court of Appeals

223 S.W. 1028

TOMLINSON et al. v. NOEL et al.

(No. 9360.)

Court of Civil Appeals of Texas. Ft. Worth.

June 12, 1920.

Rehearing Denied July 2, 1920.

Appeal from District Court, Stephens County; Harry Tom King, Judge.

Trespass to try title by J. E. Tomlinson and others against J. A. Noel and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Veale, Caldwell, Bateman & Evans, and H. A. Leaverton, all of Breckenridge, for appellants.

W. C. Jackson and Bottorff & Puett, all of Breckenridge, and N. N. Rosenquest, of Eastland, for appellees.

CONNER, C. J.

This suit was instituted in the usual form of trespass to try title by J. E. Tomlinson and others, as heirs of J. A. Tomlinson, deceased, to recover a triangular piece of land containing about 2½ acres. The facts show that the deceased, J. A. Tomlinson, and wife, on December 12, 1894, conveyed to J. A. Trimble, also deceased, 50 acres of land in Stephens county out of a larger survey owned by them, which was described in the deed of conveyance as follows:

"A part of S. E. 1/4, sec. 446: Beginning at pile of stones at the George Love rock fence near the public tank; thence W. to the S. E. corner of lot sold to H. L. Nixon; thence west to the S. W. corner of graveyard lot, making 707 vrs.; thence S. with the Ward pasture fence 404 vrs. to stake; thence E. parallel with fence 707 vrs. to the E. line of sec. 446, which is the W. line of sec. 447; thence N. with said line to the place of beginning—making fifty acres in all, more or less."

The appellees have title by mesne conveyances from Trimble, and the controversy in this suit arises over a dispute as to the location of the beginning corner. The southeast corner of the lot sold to H. L. Nixon, as called for in the deed, is known and fixed on the ground, as are also the northwest, southwest, and southeast corners of the 50 acres in controversy, but the beginning corner is in dispute. The beginning corner, as claimed by appellees and as fixed by the verdict of the jury in answer to a special issue, is at a point due east of the southeast corner of H. L. Nixon's lot; but as claimed by the appellants the true beginning corner or rock pile, called for in the deed, is at a point on the east line that would be reached by running a line from the southeast corner of the Nixon lot south 78 degrees and 50 minutes east. In other words, to reach the southeast corner of the Nixon lot, as called for in the deed, from the rock pile at its location as contended for by appellants, it would be necessary to run the line north 78 degrees and 50 minutes west instead of due west, as called for in the deed.

Appellants' principal assignment of error presents the contention that the verdict of the jury fixing the northeast corner of the 50-acre tract of land referred to is unsupported by the evidence, and that therefore the court should have given a peremptory instruction in their favor as requested. The evidence has been carefully considered, and we feel unable to say that the verdict and judgment in favor of appellees is not correct. It is very clear that by reversing the calls in the deed from Tomlinson, and beginning at the southeast corner of the 50-acre survey, as it is located and as found on the ground, and thence following course and distance west and north and east, the northeast corner will be at the point fixed by the jury; and where the beginning corner is not identified and certain, it is as lawful to reverse the calls as to follow the order given in the deed. If the beginning corner can be identified, the footsteps of the surveyor must be followed, and if in fact the evidence fixed with certainty the rock pile at the point where appellants contend that it was and is, then the called-for course and distance, as given in the deed, would have to yield, and it would be necessary to from thence run the line, not due west as called for, but north 78 degrees and 50 minutes west. We do not think it can be said, however, that the evidence fixing the rock pile on the east line is of that degree of certainty as will enable us to say that the verdict of the jury, which has been approved by the court, is wrong. It is true that a Mr. Moore, a surveyor from an adjoining county, surveyed the land, and he testified that on the east line of the 50-acre tract, at the point where appellants claimed the beginning corner to be, by digging he found a pile of rock, from which point he ran in the direction already indicated to the southeast corner of the Nixon lot. This rock pile, as he testified, was located by the passing calls of a tank and of a rock fence.

But evidence in behalf of appellees indicated that there was, in fact, no rock pile at the point indicated by the surveyor, that at that particular point rock was to be found in the ground at any place, that the tank had been enlarged from what it originally was, and the rock fence largely, it not wholly, obliterated. The calls in the deed, "at the George Love rock fence near the public tank," are mere descriptive calls, given as the means of ascertaining the location of the rock pile, which is the beginning corner. These descriptive calls fail to state the distance from the north or south end of the rock fence, or the distance from the public tank, or from either extremity thereof, and we do not think that they have been so definitely established by the evidence as to control the call in the deed for a due west line from the beginning corner. It seems evident from the deed that it was the purpose of the grantor to convey a tract of land in the form of a true parallelogram, for by the deed the east and west lines are made parallel, as also the north and south lines; but if the survey should be constructed as the appellants contend, by running from the beginning corner as they insist was established by their evidence, the...