Umscheid v. Scholz

• Decision Date: 26 June 1891
• Citation: 16 S.W. 1065
• Parties: UMSCHEID <I>et al.</I> v. SCHOLZ <I>et al.</I>
• Court: Texas Supreme Court

16 S.W. 1065

UMSCHEID et al. v. SCHOLZ et al.

Supreme Court of Texas.

June 26, 1891.

Appeal from district court, Bexar county; GEORGE H. NOONAN, Judge.

Action by F. Umscheid against the city of San Antonio and A. Scholz to try title. Judgment for defendants. Plaintiff appeals. Affirmed.

Denman & Franklin, for appellants. Upson & Bergstrom, for appellees.

STAYTON, C. J.

This action was brought by F. Umscheid against the city of San Antonio, and its tenant, A. Scholz, to recover the land described in the petition, as follows: "Beginning at a point where the north side of Alameda (now Commerce) street strikes the river; thence, with said north side of said street, S., 75¾' E., to the east side of Losoya street; thence up said east line of Losoya street, in a northerly direction, to the north line of a lot of ground conveyed by Edward Dwyer to said Frank Umscheid, deceased, on the 24th May, 1849, by deed recorded in Book H., pages 195 and 196, of records of deeds of Bexar county, Texas; thence, with said north line, N., 75¾ west, to the north of the spring branch emptying into the San Antonio river; thence down said San Antonio river to the place of beginning." Umscheid died pending the action, and his heirs became parties. After plaintiffs had introduced all their evidence, defendants demurred to it; whereupon the case was withdrawn from the jury, and the court entered a judgment for the defendants. We do not understand appellants to complain because the cause was withdrawn from the jury, but to complain that the court held, on the evidence introduced, that no title was shown in plaintiffs. If it be true that all of plaintiffs' evidence failed to present a case which would have justified the court in submitting to the jury the question of title, then no possible injury resulted to plaintiffs. The lot of which the land in controversy was a part extended from Alamo street westward to the San Antonio river, its southern boundary being Alameda street, and its northern a line run parallel with that street from a point on Alamo street to the mouth of a spring branch which emptied into the San Antonio river. There was evidence tending to show that at an early day the lot was granted to Baron de Bastrop, and that through him title to it vested in Edward Dwyer prior to May 24, 1849, and for the purposes of this appeal it may be assumed that the evidence was sufficient to show title to the entire lot in Edward Dwyer. On May 24, 1849, Edward Dwyer conveyed to plaintiff's ancestor by a deed which described the land conveyed as follows: "Beginning at the point where the line of the north side of the Alameda strikes the San Antonio river; thence, with the Alameda, S., 75¾ E., 59 vs., to corner of the Alamo street; thence, with Alamo street, N., 1 E., 5½ varas, to a house of Mrs. Tarin; thence, with said house, N., 79' W., 6¼ varas, and N., 11 E., 11¼ vs.; thence N., 75¾ W., 60 vs., to the mouth of the spring branch emptying into the San Antonio river; thence down the river, to the place of beginning; it being understood that the public thoroughfare formerly existing along the edge of the river at this point is not intended to be conveyed by these presents, the corporation of the city of Bexar having the right to open said thoroughfare when it sees fit."

The evidence shows that the father of plaintiffs inclosed the lot with a stone wall extending towards the river to about where the center of Losoya street now is, and that between that wall and the river was a pass-way used by the public; but it appears that on August 3, 1872, the city council for the city of San Antonio desiring to widen Losoya street eastward, the father of plaintiffs, for the sum of $1,300, made an agreement with the city, whereby he "granted, relinquished, ratified, and confirmed unto the party of the second part [the city of San Antonio] all the estate, right, title, and interest that the said party of the first part has to and in a certain tract of land lying and being in the city of San Antonio, state and county aforesaid, and bounded as follows: From a point 19 feet distant from the north-west corner of the lot, on the northern boundary thereof; thence, in a straight line, to a point in the Commerce (Alameda) street wall of said lot, 13 feet from the southwestern corner of said lot; thence...