author: MOURSUND, J.

text:
    POLK v. REINHARD.
    (No. 5797.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 28, 1917.
    On Motion for Rehearing, April 4, 1917.)
    1. Boundabies <§=^10 — Inconsistency oe Surveys.
    Where field notes of one survey are complete and contain no inconsistent calls, it is not permissible to look to field notes of another survey to create an inconsistency.
    [E'd. Note. — For other cases, see Boundaries, Cent. Dig. §§ 90, 91.]
    2. Boundaries <S=w3(3) — Conflicting Elements — -Calls CONTEOLLED BY MARKS.
    A corner actually located and marked will control the call for another corner or line mistakenly assumed to be in the same place.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 6-19.].
    3. Boundaries <®=>11 — Conflicting Elements — Field Notes Controlling Land Certificate.
    The fact that land-office certificate stipulated that two surveys should connect with each other will not affect the actual location as shown by field notes, which do not connect owing to a mistake in surveying; and, where each survey contains the number of acres called for, a later patent to land located between the surveys passed title.
    [Ed. Note. — Por other cases, see Boundaries, Cent. Dig. §§ 92-94.]
    On Motion for Rehearing.
    4. Boundaries <S=3(3) — Conflicting Elements — Marked Corners — Pield Notes.
    Where field notes call for the line of a certain survey, but also call for a marked bearing-tree, the marked corner and distance control the call for the line of the older survey.
    [Ed. Note. — Por other cases, see Boundaries, Cent. Dig. §§ 6-19.]
    Appeal from District Court, Medina County; R. H. Burney, Judge.
    Suit to recover land by Pred Reinhard against Dan Polk. Judgment for plaintiff, and defendant appeals. Affirmed. On motion for rehearing.
    Motion overruled, and former opinion sustained.
    George Powell, of San Antonio, for appellant. De Montel & Ply, of Hondo, and Jno. W. Hill, of Uvalde, for appellee.
   MOURSUND, J.

On December 20, 1877, a certificate was issued by the Commissioner of the General Land Office to Corpus Christi, San Diego & Rio Grande Narrow Gauge Railroad Company entitling it to 640 acres of land to be located upon any of the vacant and unappropriated public domain, which certificate provided that for each certificate granted the company a like number of acres to be surveyed for the use of the state, and that no location should be made unless at least two surveys connected with each other could be obtained.

On September 1, 1879, Louis H. Bohme, deputy surveyor of Medina county, surveyed for Ross Kennedy, assignee of said company, by virtue of said certificate, survey No. 399 in Medina county, and located and surveyed for the state the alternate survey No. 400; the field notes of each calling for 640 acres of land. The two surveys were delineated on the sketch accompanying his field notes as follows:

By reason of the irregular shape of No. 399, in order to include 640 acres therein, his north line had to be; 2052.8 varas, and that distance was called for in the field notes. The northwest comer of said survey No. 399, the beginning corner, is well established, and is the southeast corner of survey No. 905, the northeast corner of survey No. 477, and the 'southwest corner of survey No. 1005. He established the northeast corner of No. 399 on the ground, and identified same by bearing trees as follows: “L. O. 14 in. dia. brs. N. 40 E. 15.7 vrs. do 6 in. dia. brs. S. 64 W. 28 vrs.” He also established on the ground the southeast corner of survey 399. In his field notes of survey No. 400, he called for the southeast corner of No. 399 as the beginning corner; thence north with the east line of No. 399 to its northeast corner calling for its bearing trees; thence east with the south line of survey 1005, 900 varas, to a stake 6 varas due north of northwest corner of survey No. 1002, 1,260 varas, to southwest corner of said survey; thence east in part with south line of survey 1002, 2,543 varas; thence -south 720 varas; thence west, 3,443 varas, to beginning. On May 18, 1882, the same surveyor made corrected field notes of the two surveys, which it is evident were deemed necessary because it was discovered that the north line of No. 400 running east from its beginning corner could be extended, but that survey 1002 was much further south than it was thought to be when he first located surveys Nos. 399 and 400, and that a considerable portion of the land included by him in survey 400 was in fact covered by prior locations. He found that there was not sufficient public domain ”to give each survey 640 acres, and undertook to reduce the surveys to 548 acres each by making a new dividing line further west. He called for the same beginning corner for survey No. 399; “thence east with the smith line of survey 1005, 1,792 vrs., to a stake and mound; thence south 1,980 vrs., to a stake and mound; thence west 1,792 vrs., etc.” He called for survey 400 to begin at a “stake and mound, the N. E. corner of Sur. 399 of 548 acres; thence east in part with S. line of No. 1005, at 261 varas at stake and mound for point from which a L. O. 14" dia. brs. N. 40 E. 15.1 vrs. do 6" dia. brs. S. 64 W. 28 vrs., at 878 vrs. the S. E. corner of Sur. No. 1005 and S. W. corner of No. S3, 1,348 vrs. to S. E. corner of No. 83 on W. line of No. 1002% ; thence south with W. lines of surveys 1002%, and 1002, 175 vrs. to S. W. cor. of No. 1002.” The other calls need not be given, except to state that the southwest corner corresponded with the southeast corner of the corrected survey No. 399.

The distance of 2,052.8 varas given for the north- line of No. 399 in the first field notes was erroneous, and said distance in fact was 2,202 varas. Now, when Bohme made his corrected field notes, he failed to discover such error, and therefore underestimated the' vacant land to the extent of 45 acres. It is most probable that in order to' avoid remeasuring the north line of No. S99 he constructed said survey by simply figuring what distance he would have to run east from his beginning corner in order to obtain half of the area he thought was vacant, and thus arrived at the distance of 1,792 varas. His call for stake and mound, without hearing trees, as marking the new corner of No. 399, indicates that he did not again measure the north line, and in fact that he never actually located such corner on the ground. Had he located it on the ground, it is reasonable that he would have marked it as he did the dividing corners between the surveys as first constructed. Having failed to measure his north line over, he did not discover the error in his first measurement and did not know there were 45 acres more in the vacancy than called for in his two corrected surveys. Survey No. 399 was patented upon the corrected field notes thus made by Bohme.

On April 14, 1886, J. H. Brauer, county surveyor of Medina county, again made field notes for survey No. 400, after making a resurvey thereof, in which he called to begin at “a stake, the N. E. corner of Sur. 399 for N. W. corner of this survey a L. O. 10" dia. mkd. X bears N. 70% W. 42 vrs.; thence east at 261 vrs. a stake for point on this line, a L. O. 14" dia. brs. N. 40° E. 15.1 vrs. and a L. O. 6" dia. brs. S. 64 W. 28 vrs. 1,368 vrs. to a rock mound on W. line of No. 1002% and distant 1,499 vrs. from the N. W. corner of said survey.” The other calls are unimportant, and we will only say that the courses and distances brought him to a point 1,708 varas south of his beginning point, and he then called to run north with the east line of No. 399 to his beginning place. These field notes give survey No. 400 only 432.6 acres, and upon them said land was sold and patented. It is apparent that when Brauer made this resurvey he did not measure the north lines of surveys 399 and 400, but went to the live oak bearing trees marking the northeast corner of 399 as first surveyed, and, assuming that Bohme’s measurement was correct, measured west 261 varas for the purpose of reaching the northeast corner of No. 399 according to Bohme’s corrected field notes, and there established on the ground his northwest corner of No. 400, marking a tree to identify the place. This is shown by Brauer’s letter of November 6, 1886, wherein he states that he found and identified the northwest comer of survey No. 1002%, the northeast corner and northwest comer survey No. 1, and the point 261 varas east of the northwest corner of survey No. 400, and that he made the survey from these points. Thus it came about that there was/ a space of 149 varas between his northwest corner of No. 400 and the northeast corner of No. 399 if the same be located by running course and distance from its beginning corner which space was not shown on any map.

Between 1886 and 1890, Louis Polk, representing appellant, who owned survey No. 400, and another surveyor, representing the owner of No. 399, ran the north line of No. 399, and found no stake or mound at the point 1,792 varas east of its northwest corner. After such survey, a fence was erected upon the east line of No. 399 as thus fixed, and Kennedy, the owner of No. 399, by boundary line agreement with Dan Polk, the owner of No. 400, conveyed to said Polk all that part of No. 399 lying east of said fence. Kennedy stated that he only claimed what his patent called for and was willing for Polk to have the rest because Polk was 116 varas short on the land he had purchased from Ney, meaning survéy No. 400.

On June 29, 1915, a patent was issued to Bred Reinhard for survey No. 399%, of 45 acres, the field notes of which are as follows:

“Beginning at a stake set for N. W. corner of survey No. 400, from which a live oak, 10" in dia. mkd. X brs. N. 70.1 W. 42 vrs. for N. E. corner of this survey; thence S. with west boundary line of survey No. 400, 1,708 vrs. to stake for S. W. corner of survey No. 400, for S. E. corner of this survey; thence west with north boundary line of survey No. 1, 149 vrs. to a stake on the E. boundary line of survey No. 399, for S. W. corner of this survey. Thence N. with east boundary line of survey No. 399, 1,708 vrs. to a stake the N. E. corner of survey No. 399 from which a live oak 12" in dia. brs. S. 37% E. 28 vrs. for N. W. corner of this survey; thence east 149 vrs. with south boundary line of survey No. 1005, J. N. Berryman to the place of beginning.”

Reinhard then brought this suit for the land described in his patent against Dan Polk, who answered by plea of not guilty, and other pleas unnecessary to mention as no assignments of error relate thereto. A jury was waived, and the court found that the strip of land sued for was at the time it was patented to plaintiff a vacancy between surveys Nos. 399 and 400, and that the patent vested in plaintiff the title to said land. Judgment having been entered in favor of plaintiff for the land sued for, defendant appealed.

If Bohme in fact made no actual survey when he fixed the northeast corner of No. 399 at a point of 1,792 varas east from its beginning corner, there can be no doubt that the survey could not be extended further east than the distance called for. But if the presumption be indulged that he ran out the survey, and actually indicated the location of the northeast corner by a stake and mound, then there is no evidence that any person ever found such stake and mound, and the call for distance must govern. If it had been proved that Bohme actually drove a stake and made a mound for the northeast corner of No. 399 at a point 149 varas further east than the distance called for in the field notes, the location Of the stake and mound would control. This proof, of course, would be'difficult to make unless some one who saw the survey made or assisted in making it was called as a witness, for stakes and mounds are frequently placed by other surveyors than the one who made the survey.- Louis Rotbe, one of the men whose name appears as a chain carrier upon the corrected field notes, testified that he did not assist in surveying any lines of survey No. 399 until 1905; that the only chain carrying he did for Bohme in 1882 was with regard to survey No. 83, a small survey, .which does not touch No. 399, but does adjoin the eastern part of the north line of No. 400. This testimony indicates that Bohme, upon discovering that he was mistaken at the time he first surveyed Nos. 399 and 400 as to the lines of older surveys north and east of No. 400, reconstructed surveys 399 and 400 in 1882 without running the lines thereof. Brauer, in his letter, names the corners found and identified by him, and does not say that he found anything at the point 261 varas west from the marked corner of No. 399 made by Bohme in 1879. There is no evidence from which the court could find that Bohme in fact drove a stake and made a mound to mark the northeast corner of No. 399 when he corrected the field notes of such survey in 1882.

The only question to- determine, therefore, is how to locate survey No. 399 from the field notes. The field notes of said survey are complete in themselves, and do not contain any inconsistent calls. It is not permissible to look to the field notes of another survey in order to create an inconsistency in the calls of said survey No. 399. Thompson v. Langdon, 87 Tex. 259, 28 S. W. 931; Williams v. McLeroy, 135 S. W. 251; Upshur County v. Lewright, 101 S. W. 1013; Keystone Mills Co. v. Peach River Lumber Co., 96 S. W. 64. To locate survey No. 399, therefore, we must run east 1,792 varas from the beginning corner; thence 'south, etc. This places the northeast corner at the point 149 varas west of the corner marked by Brauer for the northwest corner of No. 400, and the southeast corner of 399 149 varas west of the southwest corner of No. 400, as established by Brauer.

There can be no doubt that survey 400 cannot be extended westward so as to take in such strip of 149 varas. Its west line is controlled, not by the call for survey No. 399, but by the call for a certain point from which a “L. O. 10" dia. mkd. X brs. N. 70% W. 42 varas.” That a corner actually located and marked will control the call for another corner or line, which is mistakenly assumed to be at the same place, is well established. Oliver v. Mahoney, 61 Tex. 611; Gerald v. Freeman, 68 Tex. 201-204, 4 S. W. 256; Cox v. Finks, 41 S. W. 95; Burnett v. Gault, 54 S. W. 268; Taft v. Ward, 58 Tex. Civ. App. 259, 124 S. W. 437; Lafferty v. Stevenson, 135 S. W. 216; Koch v. Poerner, 55 S. W. 386.

When surveys Nos. 399 and 400 are constructed as above indicated by us, each has exactly the acreage called for in its respective field notes, and the land patented to plaintiff Reinhard lies between the boundaries of said surveys. The stipulation in the certificate that the surveys should connect with each other cannot affect the fact that as actually located the surveys did not connect, any more than the recital of the surveyor in his field notes to the effect that his corner, established on the ground, corresponded with the northeast corner of 399. These matters show what the surveyor thought he was doing, but his field notes show what he actually did.

As the land sued for was.not included in surveys 399 and 400, title thereto remained in the state and passed to plaintiff by virtue of the patent issued to him, and he is entitled to recover it. The court rendered the only judgment that could have been rendered upon the facts proven, and it is unnecessary to pass upon the assignments comiplaining of the admission in evidence of a letter from defendant to the Commissioner of the General Land Office and the reply thereto.

The judgment is affirmed.

On Motion for Rehearing.

Appellant is very confident that no vacancy existed between surveys Nos. 399 and 400, and yet it is evident that he has no well-defined theory on the question whether the land patented to Reinhard is a part of survey 399 or whether it is a part of survey 400. We have stated our views in regard to the rules to be followed in locating the surveys on the ground; but appellant, instead of taking up each survey separately and pointing out what he conceives to be the error committed by us in locating such survey, con fuses the issues by attempting to discuss both at once and by overlooking salient features relating to each. It is said that the call in the field notes of 399 to run east, 1,792 varas conflicts with the call for the east line of 399 to be the west line of 400, overlooking the fact that in the field notes of 399 there is no call for the west line of 400, and that the law will not permit us to look to the field notes of No. 400 to create an ambiguity in the. unambiguous field notes of No. 399.

While, as we have held, no calls in the field notes of No. 400 can be read into those of No. 399 to create an ambiguity, we fully recognize the fact that if it can be shown that Bohme actually ran out the corrected survey No. 399 and drove a stake and made a mound, not at a point 1,792 varas east of the beginning corner, but at a point 147 varas further east, then the call for course and distance in the field notes of No. 399 would give way to the actual location of the stake and mound.

While Brauer’s field notes of No. 399 contained a statement that the northeast corner of No. 399 was where he located the northwest comer of No. 400, his letter written at the time shows that he found nothing on the ground to show that the point was the northeast corner of No. 399, vand other testimony shows that Bohme made no marks for such comer which could have heen found by Brauer. The court was certainly justified in constructing survey No. 399 hy course and distance, giving it the exact acreage called for. The ease of Moore v. Stewart (Sup.) 7 S. W. 771, relied upon hy appellant, was a fact case, and the evidence can hy no means furnish a criterion hy which to determine whether the judgment in this case is supported by evidence.

Much is said about rules relating to surveys made by the same- surveyor át the same time, which has little or no application to the facts of this case,, for the resurvey of No. 400 determines its boundaries, and it was made by a different surveyor some years after the field notes of No. 399 were corrected. Let us see whether the field notes of No. 400 must be held to include the Reinhard land, or whether the judgment of the court is supported by evidence justifying the location of same so as not to include the Reinhard land. When Brauer made the resurvey of No. 400, had he called to run west from the two noted bearing trees 261 varas to the northeast corner of No. 399, and called for nothing else, there is no doubt that the distance would have given way to the call for the corner; but he did not do so, but marked a corner on the ground and called for the bearing tree in his field notes. In the case of Goldman v. Hadley, 122 S. W. 283, the surveyor, it was claimed, actually marked a line which did not correspond with the line of the survey called for in his field notes; but in his field notes he did not identify the line which was to bound the survey in any other way than by simply designating it as the line of the other survey. Of course, in such a ease the field notes govern, and distance would give way to the call for the line of the other survey regardless of whether he marked trees not called for in his field-notes. This court said: “Had the field notes called for a marked line and other objects, it would have been different.” In this case, Brauer’s field notes called for the line of No. 399, but also called for a marked bearing tree by which the corner was fixed, and it seems clear that the marked corner and distance control the call for the line of the older survey.

The motion is overruled.
      ignwFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ifcoFor other casts see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    HOUSTON & T. C. R. CO. v. PATTERSON.
    (No. 7663.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 9, 1916.
    Rehearing Denied March 31, 1917.)
    1.Justices oe the Peace ®=v>44(8) — Jurisdiction-Amount in Controversy — Attorney's ‘ Eee.
    In an action against a railroad for injuries to horses in transit, wherein plaintiff prayed judgment for $197.50 and $20 as attorney’s fee, under Rev. St. 1911, art. 2178, providing that any person having a bona fide claim for stock killed or injured may 'present it in the county whore suit may be brought, and, if it is not paid or satisfied within 30 days, he may recover by suit the amount of such claim and an attorney’s fee, the justice court had no jurisdiction of the amount in controversy; the attorney’s fee constituting part of such amount.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 166.]
    2. Justices oe the Peace <gs^>141(2) — Jurisdiction oe County Court on Appeal.
    Where a case is appealed from a justice court to the county court, the latter has no jurisdiction unless the justice had jurisdiction, though the amount in controversy may be within the original jurisdiction of the county court.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 472.]
    3. Appeal and Error <@=»20 — Jurisdiction-Lack oe Jurisdiction Below.
    Where the justice and county courts were without jurisdiction to hear and determine a cause, the Court of Civil Appeals is without jurisdiction, and can make no order in the cause other than to reverse the judgment of the county court and dismiss the case.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 81-87.]
    4. Appeal and Error <®=>1178(8) — Disposition — Remand eor Amendment.
    Where the justice court had no jurisdiction of an action, plaintiff seeking to recover in excess of the jurisdictional amount, which was appealed to the county court, and from thence to the Court of Civil Appeals, the latter court will not remand 'the case in order to give plaintiff an opportunity to amend his pleadings so as to eliminate the question of jurisdiction by reducing the amount sued for, since, the ease having originated in justice court, jurisdiction cannot be conferred upon the county court by an amendment of the pleadings in it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4616-4619.]
    Appeal from Navarro County Court; R. R. Owen, Judge.
    Suit by J. H. Batterson against the Houston & Texas Central Railroad Company. From a judgment for plaintiff against defendant and the surety on its appeal bond on appeal from the judgment of a justice, defendant and the surety appeal.
    Reversed, and cause dismissed.
    Baker, Botts, Parker & Garwood, of Houston, and R. S. Neblett and Gordon Damon, both of Corsicana, for appellants. W. A. Tarver, of Corsicana, for appellee.
   TALBOT, J.

The appellee, J. H. Patterson, instituted this suit in the justice court of precinct No. 1, Navarro county, Tex., against the appellant railroad company on the 5th day of March, 19 — , to recover damages alleged to have been sustained by reason of injuries inflicted through the negligence of appellant upon two horses owned and shipped by appellee over appellant’s road from Corsicana to Ft. Worth, Tex. Appellee chárged that one of the horses so shipped died from the injuries inflicted upon it to his damage in the sum of $150; that by reason of the injuries inflicted upon the other horse shipped he had sustained damages in the sum of $47.50; that on the 20th day of Janu--ary, 1916, appellee presented to E. O. Vaughan, the appellant’s agent at Corsicana, Tex., a statement of his claim for damages resulting from the injuries to said horses and demanded payment therefor; that said claim was not paid within 30 days after said presentation and demand for payment; and that it became necessary for appellee to employ an attorney to file suit on said claim. Appellee prayed judgment for the sum of $197.50, the aggregate amount of damages alleged to have been sustained by him as the result of the injuries to his horses, for interest, costs of suit, and $20 as attorney’s fee, the total amount prayed for being $217.50. A trial in the justice court resulted in a judgment in favor of the appellee, Patterson, for the full amount claimed and sought to be recovered by him. Prom this judgment the appellant appealed to the county court of Navarro county, giving United States Fidelity & Guaranty Company as surety on its appeal bond, and upon a trial in that court without a jury, on October 15, 1915, judgment was rendered in favor of appellee against appellant railway company and against the United States Fidelity & Guaranty Company as surety on said appeal bond for the sum of $217.50, the amount sued for, and for interest and costs of suit. Motion for new trial was filed in the county court, and, the same having been overruled, the Houston & Texas Central Railroad Company and the United States Fidelity & Guaranty Company perfected an appeal to this court.

Appellants contend in this court for the first time that neither the justice court nor the county court had jurisdiction to hear and determine this cause, and the same should be reversed and dismissed. This contention is supported by several decisions of our appellate courts and will be sustained. Wichita Valley Railroad Co. v. Leatherwood, 170 S. W. 262; St. Louis, B. & M. Ry. Co. v. Knowles, 171 S. W. 245; Houston Racking Co. v. McDonald, 175 S. W. 806; Gulf, C. & S. Ry. Co. v. Werchan, 3 Tex. Civ. App. 478, 23 S. W. 30; Gulf & I. Ry. Co. v. Gregory, 59 S. W. 310. The appellee sued, as has been seen, to recover the sum of $197.50 as damages sustained by reason of injuries negligently inflicted upon his horses and for the further sum of $20, as attorney’s fee. The claim for attorney’s fee is based upon article 2178 of the statute (Rev. St. 1911), which provides, among other things, that any person having a valid bona fide claim against any person or corporation doing business in this state for stock killed or injured by such person or corporation may present the same to such person or corporation or to any duly authorized agent thereof in the county .where the suit may be brought, and if at the expiration of 30 days after the presentation of such claim the same has not been paid or satisfied, he may immediately sue thereon in the proper court, and if he shall finally establish' his claim and obtain judgment for the full amount thereof, as presented for payment, he shall be entitled to recover the amount of such claim and all costs of suit, and, in addition thereto, a reasonable amount as attorney’s fee, provided he has an attorney employed in the case, not to exceed $20, to be determined by the court or jury trying the case. The allegations of the appellee in the justice and county courts were amply sufficient to show, and did show, a cause of action for the injuries inflicted upon his horses and for the attorney’s fees provided for in the statute mentioned, and upon the testimony adduced appellee recovered in both courts the amount claimed, namely, $197.50, for injury to his horses and $20 attorney’s fees, aggregating $217.50. That the attorney’s fee sued for constituted a part of the amount in controversy, within the meaning of our statutes fixing the jurisdiction of the several courts in this state, and not merely costs, is clearly and definitely affirmed by the decisions we have cited, and upon the authority of those decisions we hold that the justice court did not have jurisdiction of the amount in controversy in this case, and for that reason the county court had no jurisdiction to hear and determine the cause.

Where a case is appealed from a justice court to the county court, the latter is without jurisdiction, unless the justice court had jurisdiction, though the amount in controversy may be within the original jurisdiction of the county court. W. R. Kelley & Co. v. J. E. Stevens & Sons, 136 S. W. 94.

We have carefully read and considered the cases cited by appellee, but find ourselves’unable to reach any other conclusion than that they are not in conflict with the cases referred to above and upon which our holding is predicated, and would not warrant this court in saying the $20 attorney’s fees sought to be recovered by appellee were not a part of the amount in controversy herein or appellee’s cause of action. •

The justice and county courts being without jurisdiction to hear and determine the cause, this court is without jurisdiction, and can make no order in it on this appeal other than one reversing the judgment of the court below and dismissing the case.

Appellee suggests that, in the event this court holds that the amount in controversy exceeds the jurisdiction of the justice court and that the' county court therefore was without jurisdiction, the case should be reversed and remanded in order to give him an opportunity to amend his pleadings so as to eliminate the question of jurisdiction. Several cases are cited in support of this suggestion, but upon investigation we conclude they are not in point and would not warrant such a course. They are cases which originated in the county court. The case before us originated in the justice court, and, that court not having jurisdiction of the amount in controversy, jurisdiction could not be conferred upon the county court by an amendment of the pleadings in that court reducing the amount originally sought to be recovered to $200 or a less amount. .The only court in which the amount sued for might have been reduced for the purpose of giving the court jurisdiction, if at all, was in the justice court, and as a reversal and remanding of the case by this court would simply send the case hack to the county court, and not to the justice court, the opportunity of eliminating the question of jurisdiction now raised by the appellant has been lost.

The judgment of the court belo.w is reversed, and the cause dismissed.
      <®s»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    MILES et al. v. BODENHEIM et al.
    (No. 1726.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 15, 1917.)
    1. Easements <§=>17(5) — Creation—Bight oe Way.
    Where B. owned an entire tract of land when he conveyed part to B., and owned all the tract except the part conveyed to B. when he conveyed another part to T., and, before he sold to B-, B. by a fence segregated a strip of land or alley from the part of the land or lot after-wards conveyed to M. by B.’s widow, and constructed improvements on the part or lot he himself resided upon, later conveyed to T., with reference to the alley and its use in connection therewith, as did B., and provided no other way to reach his part of the land, later sold to T., the law, on the widow’s conveyance to M., implied an easement or servitude upon the land constituting the alley conveyed to M. in favor of B. and T., since where, during the unity of title, an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another, which at the time of severance is in use and reasonably necessary for the enjoyment of the other, the law implies a grant of the right to continue the use.
    [Ed. Note. — For other cases, see Easements, Cent. Dig. § 45.]
    2. Ekauds, Statute oe <@=>100 — Conveyance oe Land — Easement — Sufficiency of Writing.
    Though an instrument in writing as provided by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1103, is necessary to convey an easement, a conveyance in writing duly signed and acknowledged is sufficient to convey an easement appurtenant to the land conveyed, though the easement is not named therein.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 189.]
    3. Frauds, Statute of <@=>100 — Conveyance — Sufficiency — Appurtenance — Homestead.
    • Though an easement of an alleyway appurtenant to a homestead is within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1115, requiring conveyance of homestead to be by deed executed and acknowledged by the grantor and his wife, the deed of a homestead duly signed and acknowledged by the grantor and wife will pass an easement appurtenant, though the easement is not named in the deed.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 189.]
    4. Easements <@=>22 — Notice — Bona Fide Purchasers.
    A purchaser of property subject to the easement of an alleyway which was openly used was charged with knowledge of the existence of the alley and its use.
    [Ed. Note. — For other cases, see Easements, Cent. Dig. § 60.]
    5. Witnesses <@=>148 — Transactions with Decedents — Action against Administrators.
    Defendant, in a suit to enjoin the closing of an alleyway, by making the widow and adminis-tratrix of his grantor a party, as the warrantor of the. title he claimed to the land, in which plaintiffs asserted the easement of the alleyway, could not render inadmissible, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3690, relative to testimony as to any transaction with or statement by a decedent in actions by or against executors or administrators, testimony admissible against him had he not made her a party.
    [Ed. Note — For other cases, see Witnesses, Cent. Dig. § 650.]
    6. Witnesses @=149(2) — Transactions with Decedents — Bight to Object.
    Administratrix of decedent, joined, in suit to enjoin closing of alley, as warrantor of title defendant claimed to the land in which plaintiffs asserted easement, alone had the right to object to the admission of testimony that it concerned statement of her decedent and was against her within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3690.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 556.]
    Appeal from District Court, Gregg County; W. C. Buford, Judge.
    Suit by G. A. Bodenheim and another against C. F. Miles and others. From a judgment for plaintiffs, defendants appeal.
    Affirmed.
    See, also, 184 S. W. 633.
    It appears from the record that on July,. 1905, G. A. Bogers and his wife owned a tract of land fronting west about 319 feet on Center street in the city of Longview, and north about 200 feet on College street in said city. A rough plat of the tract, showing it divided into parts, is given below:

      At the time stated the tract of land was inclosed by fences, except for an opening about 10 feet wide at its northeast corner on College street, indicated by the dotted line on the plat. The parts of the tract were separated by fences constructed at points indicated by inside straight lines on the plat. Rogers and his wife had lived in a house on the part of the tract marked “Miles,” and while living there so constructed the fences as to leave an open ,way about 10 feet wide between said part and, the east line of the tract, which they used in going to and coming from College street to other parts of the tract. But, the house in which they lived having been destroyed by fire, Rogers and his wife had constructed, and in July, 1905, were living in, a house on the part marked “Thompson,” and as an outlet from same to College street were using the open way mentioned and an extension of same along the east line of the part marked “Bodenheim,” indicated by the dotted line. By a deed dated July 3, 1905, Rogers and his wife conveyed the part (but not including by the metes and bounds in the deed and the strip 10 feet wide east of the dotted line) marked “Boden-heim” to appellee G. A. Bodenheim; and by a deed dated June 10, 1907, conveyed the part marked “Thompson” to W. S. Thompson, who conveyed same to J. R. Rainey, who conveyed it to appellee K. S. Melton; and, Rogers having died, his widow, appellee Mrs. J. B. Morrow (she having married again), as such and as administratrix of the community estate, by a deed dated May 2, 1908, conveyed the remainder of the tract, being the part marked “Miles” and the open way about 10 feet wide from College street along the east line of the tract to the north line of the part marked “Thompson,” to appellant C. F. Miles. Each of the deeds mentioned contained covenants of general warranty. The deed from Rogers and wife to Bodenheim, and the one from Rogers and wife to Thompson, but not a plat (hereinafter set out) attached to it, were of record at the time the one to Miles was made; but in neither of the deeds was any mention made of the alley or way above referred to. When Bodenheim in 1905 purchased the part marked on the plat with his name he at once began to improve it, building thereon a dwelling house, outhouses, fences, and cement walks, and planting thereon trees and shrubbery, and thereafterwards, with his family, used and occupied it as á home. The improvements .were constructed with reference to the alley; and, in the expectation that it would remain open, no other way for vehicles, etc., to pass from the front to the rear of his premises was provided. The improvements placed by Rogers on the part marked “Thompson” were constructed with reference to the alley, and no other way was provided by Rogers to pass from the front to the rear of that part. When Miles in 1908 purchased the part matked with his name he constructed a dwelling house on same, and thereaft-erwards, with his family, used and occupied it as his home. While Rogers occupied the part marked “Thompson” as his home, and during the time Thompson and Rainey successively owned and occupied it as a home, the alley remained open and was used by them, respectively, as a way (and the only one existing for vehicles, etc.) to and from the premises. And said alley .was open and being so used at the time appellee Melton purchased the premises from Rainey, at the time Bodenheim purchased the part marked with his name, and at the time Miles purchased the part marked with his name, and ever thereafterwards remained open, and was used by Melton, Bodenheim, and Miles as a way to and from portions of their respective premises abutting on it, and, it seems, also by others owning property east of and abutting on it. This suit was by appellees Blodenheim and Melton against appellant Miles to enjoin him from closing the alley. In their petition said appellees alleged, substantially, the facts set out above, and further alleged, in effect, that the way was a necessary one for use in reaching the eastern portion of the tract of land and parts thereof into which it was subdivided, and was provided by Rogers for his own use while he o.wned any of the land, and the use of his vendees when he should sell same or parts thereof; that to induce them to purchase the parts conveyed to them, respectively, Rogers represented to each of them that the way was intended to be, and would be, maintained as a permanent one for the use of owners of parts of the tract of land; that they respectively relied upon the way being such an one as it at the time appeared and as Rogers represented it to be, and purchased the parts conveyed to them, respectively, when otherwise they would not have purchased same; that at the time appellant Miles purchased the part conveyed to him the way was, and for a long time theretofore had been, an open and obvious one, and the only way used or which could be used for vehicles, etc., to the parts of the lots abutting on it; and that the character of the way and the use theretofore made and then being made of it .were known to appellant Miles at the time he purchased. Appellant’s answer consisted of demurrers, and plea setting up that the way was a private one; that appellees Melton and Bodenheim and others who used it were licensees; that the way was not one of necessity to those who used it, and that he had no notice at the time he purchased the part conveyed to him that appellees claimed a right other than a licensee to use the alley. He further alleged that the deed Mrs. Morrow made to him contained a covenant of general warranty, and asked that she be required to defend the suit, and for judgment against her on the warranty in the event Melton and Bodenheim obtained the relief they sought against him; and he further alleged that the claim asserted by appellees Melton and Bo-denheim was a cloud on bis title, wbicb be asked tbe court to remove, and prayed for judgment for tbe strip of land claimed as a way.
    .Win. S. Thompson testified for appellees Melton and Bodenheim that attached to tbe deed Rogers and his wife delivered to him, conveying tbe part of the tract marked with his name on tbe plat above, was a sketch, referred to above, made by Rogers, and as follows :

    And tbe court permitted him to further testify, over appellant’s objection, that Rogers said, with reference to the alley shown on the sketch:
    “If I sell this other property it [alley] will he held open. It was distinctly understood that the alley was to be maintained. In a very few words he said to me, if I sell this other property down there I am going to see that the alley is kept open. He had reference to the property now owned by Miles.”
    The grounds of appellant’s objection to the testimony was that it was hearsay and in contravention of article 3690, Vernon’s Statutes, as follows:
    “In actions by or against executors, administrators'or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.”
    It was claimed the statute set out applied because it appeared that the deeds made by Rogers to Thompson, by Thompson to Rai-ney, and by Rainey to appellee Melton, contained covenants of general warranty, and that Rogers’ widow, Mrs. Morrow, was a party to the suit.
    Special issues were submitted to the jury. Omitting such of them as are regarded as wholly immaterial to the rights of the parties, those remaining and the findings thereon were as follows:
    “Question No. 1: At the time of the sale of the lot by Rogers and wife to G. A. Bodenheim was there an alley on the east side of the Rogers property, appurtenant and appendant to the entire Rogers property, and was said alley, if any, open and freely accessible and continuous and apparent, and was said alley appurtenant and appendant to the lot purchased by said G. A. Bodenheim?
    “Answer: Tes.
    “Question No. 2: Did G. A. Rogers, prior to the time he sold to G. A. Bodenheim, reserve and provide an alley on the east side of his property for the use and benefit of the same, and was this alley in existence at the time of the sale to G. A. Bodenheim?
    “Answer: Tes.
    “Question No. 3: If G. A. Rogers provided an alley for the use and benefit of his said property, was the same appurtenant and appendant to his entire -property and to the portion sold to G. A. Bodenheim, and continuous and apparent, and was it necessary for the reasonable enjoyment of said property and the part sold?
    “Answer: Tes.
    “Question No. 4: At the time G. A. Rogers and wife sold the lot to W. S. Thompson, and prior thereto, had the said G. A. Rogers provided an alley on the east side of his property for the use and benefit of same, and, if so, was said alley continuous and apparent, appurtenant and appendant to said property and to the part sold to the said W. S. Thompson?
    “Answer: Tes.
    “Question No. 5: If, prior to the sale to W. S. Thompson, the said G. A. Rogers had provided or reserved an alley for the use and benefit of his property and the same was continuous and apparent and appurtenant and appendant to said property and to the portion sold to the said W. S. Thompson, was said alley at the time necessary to the reasonable use and enjoyment of said property and the part sold to Thompson?
    “Answer: Tes.
    “Question No. 6: At the time C. F. Miles purchased his lot from Mrs, G. A. Rogers was the alley in question open and visible, and was it used by the occupants of the present Melton home and G. A. Bodenheim, their families, servants and employes, and others having business with them on their premises, and was said alley connected with the back premises of said parties by gates or openings thereon?
    “Answer: Tes.
    “Question No. 7: At the time O. E. Miles purchased his said lot did he know of the existence of said alloy, _ and that same was open, and that it was being used by the occupants of the Melton place and the Bodenheim place, their families, servants and employes, and other persons having business with them?
    “Answer: Tes.
    “Question No. 8: Did G. A. Rogers, at or about the time he sold the lot to G. A. Boden-heim, agree with said G. A. Bodenheim that the alley or roadway on the east side of the property should remain open for his use?
    “Answer: We believe there was.
    “Question No. 9: At or about the time G. A. Rogers sold the lot to W. S. Thompson, did he agree with said W. S. Thompson that the alley or roadway would remain open for the use and enjoyment of the said Thompson property he purchased?
    “Answer: J Tes.
    “Question No. 10: Was it the purpose and intention of G. A. Rogers, at the time he sold the lots in question to Bodenheim and Thompson, to let the alley remain open for their use and enjoyment of the lots they purchased from him?
    “Answer: Tes.
    “Question No. 11: Did G. A. Rogers promise the plaintiff Bodenheim and W. S. Thompson to keep open the driveway or alley, and was that one of the conditions of the trade in each case?
    “Answer: Tes.
    . “Question No. 12: Did Mrs. Rogers know of the arrangement and consent to it, and was it her homestead from which the sales were made to Bodenheim and Thompson?
    “Answer: Yes.'
    “Question No. 13: Did the defendant O. P. Miles know that Bodenheim and Thompson claimed to own an easement across the lot when it was purchased by him of Mrs. Rogers?
    “(Not answered.)
    “Question No. 14: What amount of money paid in cash would sufficiently compensate the defendant O. E. Miles for the permanent and continuous use of the roadway across his prem-
    “Ánswer: $150.
    “Question No. 17: Is the use of the alley across the Miles lot of such a character as to interfere with the quiet enjoyment of the home by the defendant’s family?
    “Answer: No.
    “Question No. 18: If you believe that the deceased, G. A. Rogers; promised the plaintiff Bodenheim and those who purchased the lots from the south side of his homestead an easement across his remaining lot reserved as a homestead, then state if the same was intended as a permanent interest in his said lot to the extent of said roadway.
    “Answer: Yes.
    “Question No. 19: Did he inform his wife of such intention?
    “(Not answered.)
    “Question No. 20: If you believe that the deceased, G. A. Rogers, gave permission to the plaintiffs to use his road or alleyway, state if such permission was due to the personal confidence and friendship between him and the said plaintiffs, and if he at that time intended that they should have the right of selling this privilege to other parties who would in turn also have the right and privilege of crossing the homestead lot of the said G. A. Rogers.
    “Answer: We believe said easement was given for the benefit of the property owners, whomsoever they may be.
    “Question B: Was the alley in question fenced off on the east side of the Rogers property and separated from the main portion of same at the time of the sales to Bodenheim and Thompson, and did Mrs. Rogers, his wife, know of the same?
    “Answer: Yes.”
    On the findings of the jury the court rendered judgment in favor of appellees Melton and Bodenheim enjoining appellant Miles from closing the alley, and in favor of appellant against Mrs. Morrow for $150 as the sum he was entitled to recover of her as for a breach of her covenant warranting the title to the land she conveyed to him.
    McCord & Campbell, of Longview, and Beard & Davidson, of Marshall, for appellants. Young & Stinchcomb and Lacy & Bramlette, all of Longview, for appellees.
   WILLSON, C. J.

(after stating the facts as above). Appellant insists that the easement claimed by appellees Melton and Bodenheim could have been created only by an express grant thereof by a deed duly executed by Rogers and his wife, or by ,a grant thereof the law would inqply from the necessity of the case, or from long and continuous use of the alley as a way. Appellant further insists that it did not appear from either said ap-pellees’ pleadings or the evidence that an easement as claimed was created in either of those ways, and that the trial court therefore erred when he overruled appellant’s demurrer to said appellees’ petition, and when he refused to peremptorily instruct the jury to find in his favor against said appel-lees.

It may be conceded, at once, that an easement as claimed in the strip of land in question did not appear to have been created in either of the ways suggested. But we think it appeared from the pleadings and also from findings of the jury supported by evidence that an easement nevertheless existed as claimed. '

Rogers'owned the entire tract of land at the time he conveyed a part thereof to Boden-heim; and he owned all the tract except that part when he conveyed another part thereof to Thompson. Before he sold to Bodenheim,, Rogers ¡?y a fence had segregated the strip in question from the part afterwards conveyed to appellant; he had constructed improvements he placed on the part he resided upon with reference to the alley and its use in connection therewith, and had not provided any other way to reach same (his barn, for instance) from either College or Center streets; he afterwards subjected the alley to use only as a way to and from the parts of the tract abutting upon it to said streets, and was so using it at the time he sold to Bodenheim; he and Bodenheim (who had constructed improvements on the part conveyed to him with reference to the alley, an'd had provided no other way to reach same) were so using the alley at the time he (Rogers) sold to Thompson; and Bodenheim and Thompson, or his vendees, were so using it at the time Mrs. Rogers sold to appellant.

The facts recited make applicable, we think, a rule which has been stated as follows :

“The general rule is that where during the unity of title an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another, which at the time of the severance is in use and is reasonably necessary for the fair enjoyment of the other, then upon a severance of such ownership there arises by implication of law a grant of the right to continue such use. The application of the rule must depend upon the nature, arrangement and use of the estate, the relation of the parts to each other, and the existing degree of necessity for giving such construction to the grant as will give effect to what may be supposed to have been, considering the manner of the use, the reasonable intendment of the parties; the underlying principle in such cases being that included in the grant are all such privileges and appurtenances as are obviously incident and necessary to the fair enjoyment of the thing granted, sub-, stantially in the condition in which it is enjoyed by the grantor, unless the contrary is provided. The rule is also said to be based on the maxim that-no man can derogate from his own grant — this being in effect a formulation of a principle of estoppel. A presumption frequently invoked in that the parties contracted with a view to the condition of the property as it actually was at the time of the transaction, and after sale neither party without the consent of the other has a right to change, to the detriment of the other, that condition which openly and visibly existed. Of course this presumption may be rebutted by parol evidence of an agreement or understanding at or prior to the sale that the easement was not to pass, on the theory that a presumption raised by parol evidence may also be rebutted by that character of evidence. The rule itself, since it presupposes the existence of quasi easements, must be distinguished from the principle which underlies the creation of ways of necessity.” 9 R. C. L. p. 755 et seq.; 14 Cyc. 1166.

And see Sellers v. Railway Co., 81 Tex. 458, 17 S. W. 32, 13 L. R. A. 657; Garmon v. Dick, 170 N. C. 305, 87 S. E. 224; Mattes v. Frankel, 157 N. Y. 603, 52 N. E. 585, 68 Am. St. Rep. 894; Teachout v. Duffus, 141 Iowa, 466, 119 N. W. 983; Insurance Co. v. Patterson, 103 Ind. 582, 2 N. E. 188, 53 Am. Rep. 550; Powers v. Heffernan, 233 Ill. 597, 84 N. E. 661, 16 L. R. A. (N. S.) 523, 122 Am. St. Rep. 199; Rollo v. Nelson, 34 Utah, 116, 96 Pac. 263, 26 L. R. A. (N. S.) 315; German Savings & Loan Society v. Gordon, 54 Or. 147, 102 Pac. 736, 26 L. R. A. (N. S.) 331; Phillips v. Phillips, 48 Pa. 178, 86 Am. Dec. 577; Zell v. Universalist Society, 119 Pa. 390, 13 Atl. 447, 4 Am. St. Rep. 654; Martin v. Murphy, 221 Ill. 632, 77 N. E. 1126.

In the Zell Case the easement claimed was in an alleyway, as it is here. The existence of the easement could not in that case, as it cannot in this one, be referred to an express grant, nor to an implied grant based on necessity. The court applied the rule stated above and affirmed a judgment establishing the easement claimed.

So in the German Saving & Loan Society Case, the easement claimed was a way over lots belonging to Gordon. The same rule was applied, and a judgment in favor of the loan society establishing the existence of the easement was affirmed by the Supreme Court of Oregon. In disposing of the appeal the court discusses the rule and its limitations at length, and with reference to a contention made there, as it is here, that the rule did not apply to easements such as the one claimed there and here, quoted approvingly from Baker v. Rice, 56 Ohio St. 463, 47 N. E. 653, as follows:

“It is claimed that only such easements as are termed ‘continuous’ will pass by implication in a grant, and that such as are termed ‘discontinuous’ will not. This is a distinction of the civil law, and has been incorporated in the law of some of the states, particularly Maine and Massachusetts. The former are such as operate without the intervention of man, such as drains and sewers; the latter require the intervention of man in their use, such as ways. The distinction is somewhat arbitrary, and is not uniformly adopted, as will appear from the cases cited. The better rule, and the one now * * * generally adopted, is not to consider the particular kind of easement, but whether it is apparent, designed to be permanent, and is reasonably necessary to the use of the premises granted.”

In the Martin Case also the easement claimed, by Murphy was a way over a lot adjacent to his own belonging to Martin. The Supreme Court of Illinois applied the rule in affirming a judgment in Murphy’s favor, saying:

“The rule of the common law upon the subject is, that where the owner of two heritages, or of one heritage consisting of several parts, has arranged and adapted these so that one derives a benefit or advantage from the other of a continuous and obvious character, and he sells one of them without making mention of those incidental advantages or burdens of one in respect to the other, there is in the silence of the parties an implied understanding and agreement that these advantages and burdens, respectively, shall continue as before the separation of the title.”

When uncontroverted facts recited in the statement above and findings warranted by testimony made by the jury are considered with reference to the rule of law applicable, it is plain, we think, that the judgment in favor of the existence of the easement claimed is right, and that it should be affirmed unless other contentions than those specified made by appellant, and now to he referred to, ought to be sustained.

One of those contentions is that an easement like the one claimed was an estate in land which could be passed from Rogers and wife to Bodenheim and Thompson and his vendees only by an instrument in writing as provided by article 1103, Vernon’s Statutes. Another is that it was an interest in land constituting the homestead of Rogers and his wife which could be passed to said Bodenheim and Thompson only by a deed executed and acknowledged by Mrs. Rogers as provided by article 1115, Vernon’s Statutes. It is, we think, a sufficient answer to those contentions to say that the conveyances to Bodenheim and Thompson were both in writing and appeared to have been signed and acknowledged by both Rogers and his wife as contemplated by the articles of the statute referred to. The .legal effect of the deeds, construed in connection with testimony showing the situation of the premises they respectively conveyed, with respect to the alley and its use, was to grant the easement claimed by Bodenheim and Melton in the alley. “No principle of law is better settled,” said the court in Mattes v. Erankel, 157 N. Y. 603, 52 N. E. 585, 68 Am. St. Rep. 804,

“than that some things pass by a conveyance of lands as incident and appurtenant thereto, though not named therein. This is the case with a right of way or other easement appurtenant to land.”

“We have seen no case that intimates,” said the court in City of Indianapolis v. Kingsbury, 101 Ind. 200, 51 Am. Rep. 749,

“that a married woman who conveys property does not also convey all appurtenances.”

Another contention made by appellant is that the finding that he knew at the time he bought that the alley existed, and of the use being made of it by Bodenheim, Melton, and others, was without the support of evi-denee. It abundantly appeared from the testimony that, at the time Miles bought, the alley was fenced on both its sides, and was open at its mouth on College street, and was being used by Bodenheim and Melton as a way to the parts of their premises abutting on it. Appellant himself testified that he had “had his mind on” the part he bought for a long time before he bought it, and ha'd been “noticing it for quite a while.” “I suppose I saw the alley,” he said; “I knew it was being used by wagons and buggies, or whatever might want to go in there.” But, even if it did not appear from his own testimony, as it did, or from other testimony, that appellant knew, as found by 'the jury, that the alley existed and about the use made of it, we think the law would charge him with such knowledge. Moll v. Hagerbaumer, 98 Neb. 555, 153 N. W. 560; German Saving & Loan Society v. Gordon, 54 Or. 147, 102 Pac. 736, 26 L. R. A. (N. S.) 331. In the Moll Case the court said:

“If plaintiff had an easement, it was open and visible to defendants when they purchased the servient estate. They were therefore chargeable with notice of plaintiff’s roadway right, if any.”

Another contention, and the only other one we will refer to, is that the court erred when he overruled appellant’s objection to the testimony of the witness Thompson set out in the statement above. As we view it the statute invoked had no application to Bodenheim and Melton’s suit. It was against appellant Miles, and not against Mrs. Morrow. She was neither a necessary nor a proper party to their suit against Miles. They sought no relief as against her, and no judgment should have been rendered in their favor against her in either her individual capacity or her capacity as administratrix of the community estate between her and her deceased husband, or in her capacity as his heir. She was a party to the suit at the instance alone of appellant Miles. He alone sought relief as against her. We do not think Miles by making her á party, as the warrantor of the title he claimed to the land in which Bodenheim and Melton asserted an easement, could render inadmissible testimony admissible against him had he not made her a party. If it should be conceded that the testimony objected to tended to show a breach of the covenant in the deed of Mrs. Morrow to appellant, and therefore was “against” her within the meaning of the statute,, it seems to us that she alone had a right to urge the objection interposed to its admission, and to complain because the objection was overruled. She has not appealed, but is in the attitude of acquiescing in the judgment.

There is no error in the judgment of which appellant has a right to complain, and it is affirmed.
      GsaFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes