author: MOURSUND, J.

text:
    BUCHANAN v. HOUSTON & T. C. R. CO.
    (No. 5501.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 3, 1915.
    On Motion for Rehearing Dec. 15, 1915.)
    1. Pleading <&wkey;228 — Exceptions—Grounds —New Matter.
    Where the petition, in an action of trespass to try title, contained no allegation that plaintiff railway company was holding the land in suit for commercial purposes, the issue of the company’s power to acquire title by limitation for that purpose could not be raised by exceptions.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 584^590; Dec. Dig. &wkey;?228.]
    2. Pleading <&wkey;228 — Exceptions—Grounds.
    Where the petition, in an action of trespass to try title, does not show that the land in suit had been dedicated to public use, the issue of whether plaintiff railway company could acquire title by limitation to that character of land could not be raised by special exception.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 584-59,0; Dee. Dig. <&wkey;>228.]
    3. Evidence c&wkey;47i — Conclusions or Facts.
    The statement of a witness that he had been advised by counsel that plaintiff had a claim to the property involved in an action of trespass to try title is not his conclusion, but a statement of fact and admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. <&wkey;471; Witnesses, Cent. Dig. § 833.]
    4. Appeal and Error <&wkey;499 — Scope oe Review-Assignment op Errors — When Considered.
    Objections, 'in an assignment of error, which the bill of exceptions does not show were made on the trial, are not reviewable on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. <&wkey;> 499.]
    5. Judgment &wkey;>678 — Conclusiveness—Persons not in Privity.
    Where plaintiff railway company in taking over another company did not buy any land held by it, a judgment against .the selling company that it had no title to certain land is not admissible against the plaintiff in an action of trespass to try title to that land, there being no privity between the companies in that respect, although the judgment conclusively established that the land was public property.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1195-1199, 1221; Dec. Dig. &wkey; 678.]
    6. Adverse Possession <S=»113 — Evidence— Admissibility — Documentary Evidence — CHARTER'S.
    Where a railway company, plaintiff in an action of trespass to try title, acquired no rights in land from its predecessor, but claimed its leasing of property to date from 1887, its charter, not issued until 1889, should have been admitted.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 669, 671-681; Dec. Dig. &wkey;113.]
    7. Appeal and Error &wkey;>1064 — Harmless Error — Instructions—Matters not at Is-' sue.
    Where there was no evidence that a railway company, plaintiff in an action of trespass to try title, had ever had possession of the land in suit, through agents, the giving of its requested charge on the weight of evidence, which included a consideration of possession by agents, while error, was insufficient for reversal.
    [Ed. Note. — For other eases, see Appeal and' Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. &wkey;1064.]
    8. Adverse Possession <&wkey;8 — Possession against State — Public Lands — Necessity oe Appropriation.
    Under Rev. St. art. 5683, providing that no person shall ever acquire title by limitation to-any road, street, sidewalk, or grounds dedicated to public use, an instruction, in an action of trespass to try title, that unless the grounds in suit were “appropriated” by the city to public-use, title by- limitation might be acquired, and' defendant, a citizen, could not invoke the statute as a defense, was error, since an appropriation was not necessary under the statute.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 14, 27, 43-57; Dec. Dig. <&wkey;8.]
    9. Trial <&wkey;207 — Instructions—Evidence-Purpose.
    Where a witness, in an action of trespass to try title, testified that plaintiff had always claimed the land, and that the legal department advised him that the plaintiff company hac! claim and right thereto, an instruction that his conflicting statements, to the effect that the company did not own the land, testified to by another witness, should be considered only upon the question of his credibility was correct, where it was no part of his duty to determine whether the plaintiff had title.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 498, 499, 501; Dec. Dig. &wkey;207.]
    10. Trial <&wkey;252 — Instructions—Testimony Withdrawn prom Jury.
    The refusal of special requested charges based upon testimony withdrawn from the jury is not error, since, had they been given, the jury must have given some weight to testimony no-t before it.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. &wkey;252.]
    11. Dedication <&wkey;45 — Evidence — Public Use — Question fori Jury.
    Evidence of one witness that land, the subject of an action of trespass to try title, was part of a public street, contradicted by another witness, who claimed it was dedicated to the plaintiff railway, in the absence of a deed showing dedication to the use of the city or the plaintiff, does not, as a matter of law, show that the land was a public street.
    [Ed. Note. — For other cases, see Dedication, Cent. Dig. § 8S; Dec. Dig. <&wkey;45.]
    12. Trial &wkey;>260 — Instructions—Substance ■Given.
    The refusal of a requested instruction, fully covered by the charges given, is not error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. &wkey;260.]
    13. Adverse Possession <&wkey;116 — Interest in Public Lands — Instructions.
    In an action of trespass to try title, an instruction that if the public had used any portion of the land in controversy for a street, plaintiff, who claimed title by limitation, could not recover was too general, and calculated to mislead the jury; for mere permissive use by the public as a road would not defeat plaintiff’s claim of title by limitation.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 66; Dec. Dig. <&wkey;>116.]

      14. Adyeese Possession <&wkey;7 — Public Lands.
    Title to public land cannot be acquired by limitation.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 2A-42; Dec. Dig. <5&wkey;7.]
    15. Appeal and Error <&wkey;759 — Scope op Review-Failure to Brief Errors.
    Although assignments of error are not briefed, as required by law, the court may, in view of another trial, consider them.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. &wkey;>759.]
    16. Dedication <&wkey;37 — Interests in Land— Use op Land Acquired — “Public Use.”
    Use of land by a railroad which leased it to others for storage purposes, though convenient for the railroad in unloading goods, is not a use for the benefit of the public generally, beiiig equivalent to use for a warehouse.
    [Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 73, 74; Dec. Dig. 4&wkey;37.
    For other definitions, see Words and Phrases, First and Second Series, Public Use.]
    17. Railroads <&wkey;62 — Interests in Land-Capacity to Hold.
    Although Rev. St. art. 6537, authorizes acquisition of land by railways when necessary for construction and use of the line or stations or other accommodations, and article 6538 authorizes railways to take lands by grants, and article 6539 requires railways to alienate all lands except those used for depot purposes, machine shops, turnouts, and stations, a railway may take title to land for any purpose, good against all the world except the state.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 139; Dee. Dig. <&wkey;62.]
    18. Adverse Possession <&wkey;106 — Compliance with Statutes — Effect—Absolute Title.
    The statutes of limitations, when complied with, confer absolute title on the claimant of land.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 604-623; Dec. Dig. <S=> 106.]
    19. Adverse Possession <&wkey;10 — Corporations — Capacity to Acquire Land — Ultra Vires Acts.
    Since a corporation may recover land on record title acquired by ultra vires act, no reason can be advanced why it cannot do so on a title by limitation so acquired, there being no exception to the statutes of limitations of land based on ultra vires acts.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 58-64; Dee. Dig. ii&wkey; 10.]
    20. Corporations <&wkey;487 — Executory Contracts — Ultra Vires Acts — Enforcement.
    The courts will not aid in performing an ultra vires act by enforcing an executory contract.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1893-1898; Dec. Dig. &wkey;4S7.]
    On Motion for Rehearing.
    21. Dedication <&wkey;44^-PuBLic Lands — Evi-DEN CE — SUFFICIEN CY.
    In an action of trespass to try title, on the issue of whether the land in suit was public and .not subject to be acquired by plaintiff by limitation, where maps exhibited conflicted as to the size of the block and width of streets, but the map by which the original owner platted the land showed a small block with a space wider than other streets surrounding it, without indication of dedication to the public, or reservation to himself, or evidence of further ■claim by him, the recording of the map did not evidence a transfer to the city of such spaces, but only an intention to dedicate them to the public as commons, of ways, so that plaintiff might acquire title, by limitation.
    [Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 85-87; Dec. Dig. &wkey;44.]
    22. Appeal and Errior <&wkey;1066 — Harmless Error — Instructions.
    Where, in an action of trespass to try title, the plaintiff railway company claimed by limitation lands alleged by defendant to be public, an error in an instruction that if the land_ was not appropriated to public use the plaintiff could acquire title by limitation, where the evidence failed to show that all the land was not public grounds, is not harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. <&wkey;1066.]
    Appeal from District Court, Brazos County; J. C. Scott, Judge.
    Action by the Houston & Texas Central Railroad Company against C. A. Buchanan. Erom a judgment for plaintiff, defendant appeals.
    Reversed and remanded, and on motion for rehearing, motion overruled.
    Lamar Bethea and W. C. Davis, both of Bryan, for appellant. Baker, Botts, Parker Garwood, of Houston, and Stribling & Stribling, of Waco, for appellee.
   MOURSUND, J.

The Houston & Texas Central Railroad Company sued C. A. Buchanan in trespass to try title, seeking to recover a parcel of land in the city of Bryan 60 by 250 feet out of block 266. In addition to the formal allegations in trespass to try title, plaintiff alleged that it had acquired title under the statutes of limitation of 5 and 10 years. Defendant’s answer consisted of a general demurrer, various special exceptions, a plea of not guilty, denials of the allegations contained in the petition, and special pleas. One of these pleas was that plaintiff was estopped from recovering on account of a certain judgment recovered by the city of Bryan against the Houston & Texas Central Railway Company and others on March 7, 1884, for the premises in controversy. Anotner was that, on account of the provisions of article 6537 of the Revised Statutes, plaintiff, a railroad corporation, could not hold land for commercial purposes; that it undertook to hold the land in controversy for such purposes, and therefore could not acquire title thereto by limitation. Defendant pleaded further that if plaintiff ever had any title in the premises, the same was acquired for right of way purposes, and that it had not been used for such purposes for many years, or for any other purposes connected with or pertaining to the operation of the railroad, and on account of nonuser it had lost its right to such property, if it ever had any. Defendant also pleaded that the premises sued for had been designated by the city of Bryan as a block in said city on January 8, 1909, and that prior to said date it had been a public street, or thoroughfare, and used by the public as such, and therefore plaintiff could not have acquired title thereto by limitation. Supplemental pleadings were filed by .the parties, but it will be unnecessary to state the contents thereof further than to say that defendant alleged that the plaintiff was the successor in interest of the Houston & Texas Central Railroad Company, and therefore bound by the judgment pleaded in the original answer, and issue was joined upon such allegations.

By the first two assignments of error complaint is made of the overruling of special exceptions. Paragraphs 3 and 4 of the petition contain no averments to the effect that plaintiff was holding or acquiring the premises for commercial purposes, and therefore the issue, whether title by limitation could be acquired under that character of use and possession, could not be raised by exception. The petition did not show that the premises in controversy had ever been part of a public road, or otherwise dedicated to public use, and therefore the issue, whether title by limitation could be acquired to that character of premises, could not be raised by special exception. The assignments are therefore without merit.

There is no merit in the third assignment of error, The statement of the witness that .he had been advised by the legal department of the company in years past that the company had a claim and right to the property was not the witness’ conclusion, but was merely stating as a fact that a certain statement had been made to him. The other objections mentioned in the assignment of error are not shown by the bill of exceptions to have been made upon the trial.

By the fifth assignment complaint is-made of that paragraph of the court’s charge in which he withdrew from the consideration of the jury certain evidence which had been admitted, viz., the judgment in the ease of City of Bryan v. H. & T. C. Railway Co., the deed from the receiver of the Houston & Texas Central Railway Company to F. P. Olcott, the deed from said Olcott to the Houston & Texas Central Railroad Company, and the charter of the Houston & Texas Central Railroad Company. The only proposition under this assignment relates to the admissibility of the judgment. The judgment is not copied in the bill of exceptions, but the statement is therein made that the deed would show that plaintiff the Houston & Texas Central Railroad Company, did not “buy any holding of said land from said railway company.” This being accepted as true, no privity existed between the two companies, and a judgment rendered against the first one 5 years prior to the creation of the second one would not be admissible against the second one, even though as stated in the bill of exceptions it showed conclusively that the property in. controversy was public property. As the “railroad company” did not acquire such claim or title as the “railway Company” had to the property in controversy, it is impossible to see why the charter of the “railroad company” was excluded, for it would have shown that it was not created until 1889, while such company was contending that it had taken possession 'of and leased portions of the property in controversy in 1887. As briefed, the assignment must be overruled.

The sixth assignment complains of the giving of special charge No. 2, requested by plaintiff. There was no evidence that plaintiff ever had possession of any part of the land sued for through agents, and the charge was on the weight of the evidence in mentioning possession by agents in addition to possession by tenants. We do not think this error would require a reversal of the case. The other objection urged to the charge is without merit. The assignment is overruled.

By the seventh assignment complaint is made because the court gave plaintiff’s special charge No. 3, which reads as follows:

“If the jury believe from the evidence that the land in controversy was grounds belonging to the city of Bryan or dedicated to it for public purposes, yet if they further believe from the evidence that said grounds were never appropriated for public use by the city, then the defendant would not be entitled to invoke the exception in favor of the city as to the statute of limitation, but the statute of limitation would apply as in other cases, and if therefore you find that said grounds were never appropriated or used for public purposes by the city, and that the plaintiff has held peaceful and adverse possession of the same, using and enjoying’ same through its agents or tenants for a period of 10 years before the institution of this suit, then you will return a verdict for the plaintiff for the land sued for.”

This charge is erroneous. The fact that the city may not have appropriated grounds for public use, which were dedicated or conveyed for such use, cannot deprive the public of its rights therein. If the failure of the city to appropriate to public use public grounds authorizes the acquisition thereof by limitation, article 5683 of the statutes was adopted in vain, for the very acts, showing adverse possession, would evidence a failure to appropriate or use for public purposes. Gillean v. City of Frost, 25 Tex. Civ. App. 371, 61 S. W. 345; Spencer v. Levy, 173 S. W. 550; Krause v. City of El Paso, 101 S. W. 828; City of Corsicana v. Zorn, 97 Tex. 317, 78 S. W. 924; City of Victoria v. Victoria County, 115 S. W. 71; City of San Antonio v. Rowley, 48 Tex. Civ. App. 376, 106 S. W. 753. The assignment is sustained.

By the eighth assignment complaint is made of the giving of special charge No. 7, requested by plaintiff, to the effect that Adams’ testimony of statements by Westcott, disclaiming the title of plaintiff to the land, could not be considered except as it might affect the credibility of said Westcott. The statement shows that Adams testified Westcott told him in 1901 that the railroad company did not own the land in controversy, but claimed it; that they had no title to it. It appears that it was no part of West-cott’s duty to determine whether the company had title or not. He testified consistently to the fact that the company claimed the land during all the time he lmew anything about it, and that the legal department advised him that the company had “claim and right to the property.” His opinion as to the state of the title in 1901 is not binding on the company, and cannot be given the effect ■of an admission of ownership in the city. The assignment is overruled.

There is no merit in the ninth, tenth, eleventh, sixteenth, eighteenth, and nineteenth assignments of error, and they are overruled.

The twelfth and twenty-first assignments are based upon the refusal of special ■charges, which were predicated upon testimony withdrawn from the jury. As the court had withdrawn the testimony, it would have been improper to give charges which required the jury to consider it and give it certain weight. The assignments are overruled.

By the fifteenth assignment it is contended that the uncontroverted evidence shows that the property in controversy is a part of a street or public ground of the city ■of Bryan, and therefore limitation did not run in favor of plaintiff. The statement under this assignment refers to the statement under the seventh assignment. The testimony pointed out fails to show as a matter of law that the property in controversy was a street or public' ground. One of defendant’s witnesses testified it had been a part ■of Main street, and used by the public. Westcott, a witness for plaintiff, denied this. No ■deed conveying the land to the city was introduced. Westcott testified there was no deed to the city or the railroad company; that there was only the map on record. The map shows railroad tracts crossing the land in controversy, and by cross-lines indicates some other occupancy of a portion thereof. Westcott later on testified that in 1859 W. •J. Bryan conveyed to the railroad company a right of way and to the town of Bryan the land on which the town was situated. We do not understand what Westcott means by this contradiction. If there is any deed which casts any light on this matter, it ought to have been introduced in evidence. Westcott’s contention was that the land was dedicated to the use of the Houston & Texas Central Railway Company in 1868, and not to the use of the public. The assignment is overruled.

The seventeenth assignment consists of three assignments of error, all of which complain of the refusal of special charges. The third of these was fully covered by the charge of the court. The other two in effect were that if the public has used any portion of the land in controversy for a roadway or street, then plaintiff could not recover such part. These charges were entirely too general, and calculated to mislead the jury. If they were intended to reach the question of the extent of plaintiffs claim, they should have been framed with that idea in view. The mere permissive use by the public of a road across land claimed hy another would not prevent him from acquiring such land by limitation. We are assuming, for the purpose of discussing these assignments, that the land is not public grounds, for if it were, the entire parcel in controversy would not be subject to he acquired by limitation.

The twentieth assignment is sustained for the reasons given in sustaining the seventh assignment.

The fourth, thirteenth, and fourteenth assignments are not briefed as required by law, the statements being insufficient, but in view of another trial, and of the importance of one of the questions raised therein, we have decided to state our views upon such question. ' The contention is made that a railroad company cannot acquire title by limitation to land not used for right of way or depot purposes, but leased to parties for storage purposes, it being convenient for said parties and for the railroad to unload the freight of such parties at said premises, so leased to them and upon which such parties have erected appropriate buildings. Such use was not one for the benefit of the public generally, and was equivalent to using the land for warehouse business. Lyon v. McDonald, 78 Tex. 76, 14 S. W. 261, 9 L. R. A. 295. Our statutes of limitation treat corporations as persons. But it is asserted by appellant that as articles 6537 to 6539, R. S. 1911, limit the purposes for which railroad companies are permitted to acquire land, the courts should deny the right of such companies to acquire by limitation lands not necessary for, or designed to be used for, such purposes. It has been held in this state, and may be considered to be settled, that a corporation which purchases land for a purpose other than those permitted by law acquires a title which is good and binding as to all the world except the state. Russell v. Railway Co., 68 Tex. 652, 5 S. W. 686; Schneider v. Sellers, 98 Tex. 380, 84 S. W. 420; Tex. & Ft. S. Ry. v. T. & N. O. Ry., 28 Tex. Civ. App. 551, 67 S. W. 525; Cyc. vol. 10, p. 1135. Our statutes of limitation confer an absolute title when the terms thereof are complied with. The courts do no more than recognize such title, just as they recognize a good record title. If a corporation can recover land on a record title, the only objection to which is the fact that the land was acquired by performing an ultra vires act, it seems that no good reason can be urged why a recovery should not be permitted upon proof of facts showing a limitation title to land which it would be an ultra vires act to purchase. The courts will not enforce an executory contract, because it will not aid in the performance of an ultra vires act, but we do not see how that rule can apply to tlie enforcement of a limitation title any more than it can to the enforcement of a record title. There is no exception to the limitation statutes based upon ultra vires acts, and there is no reason for the courts declaring the acquisition of lands by limitation to be prohibited, and that by purchase to be legal. This court has in two cases held that a railroad company can acquire land by limitation, although such land was not necessary for depot grounds, right of way, etc. See Small v. McMurphy, 11 Tex. Civ. App. 109, 32 S. W. 789; Kingsly v. Kerr, 135 S. W. 161.

It has also been held that a corporation acquiring land not authorized by its charter to be acquired by it may nevertheless be an innocent purchaser for value. Schneider v. Sellers, 98 Tex. 380, 84 S. W. 420. If the courts grant such rights as inure to an innocent purchaser for value under our laws, although the purchaser commits an ultra vires act in making the purchase, there seems no good reason for holding that a purchaser will be precluded from exercising rights of ownership acquired under statutes of limitation.

The twenty-second assignment relates to the sufficiency of the evidence, and need not be further discussed, as all contentions have been disposed of in considering other assignments of error.

The judgment is reversed and the cause remanded.

On Motion for Behearing.

Appellee contends that if this court is correct in sustaining assignments of error Nos. 7 and 20; that the errors pointed out should be held to be immaterial. The contention is that the evidence shows as a matter of law that the land in controversy was not dedicated to the public. The map recorded in Book H indicates, as stated in our former opinion, that railroad tracks at the time the map was made crossed a portion of the land in controversy, and indicated some •other occupancy of a portion of such land, and to that extent shows an intention not to ■donate the same to the public, but the block of which half is claimed by Buchanan was laid out as indicated by the map on page 184, Minute Book B, so as to be the same size as block 260, while on the map recorded in Book H the block on which appear lines indicating occupancy is much smaller than block 260 which lies west thereof. The open space left between said block and the one lying east of block 106 is much greater than the space between blocks 106 and 260. It appears to us that such portion of block 266 as can be shown to be included within the block depicted on the map recorded in Book H, if said map furnishes the only evidence on the subject, must be held not to be public grounds or a part of a street. It is, however, impossible for us to determine what portion of the land sued for is embraced within such portion of block 266. As to that part of block 266 which is not embraced within the boundaries of the small block shown on said original map, it cannot be said that the map evidences an intention on the part of its makers to set aside the same as a part of a block reserved by the makers of the map. In other words, the map leaves the question an open one whether a wider street than the other cross streets was intended to be established between the small block covered with diagonal lines and the larger block lying south thereof which is also depicted with diagonal lines crossing it. There is also a vacant space between blocks 104 and 105 and the railroad right of way. There is nothing on the map to indicate for what purpose such space was reserved from being platted, and it appears to have been left open for the public use, just like a similar space adjoining the depot In this connection it is to be noted that there are no words upon any of these spaces such as “public square” or “park,” and most of the streets are without any names. The evidence is rather vague as to who made and recorded the map. West-brook testified:

“In 1859 W. J. Bryan conveyed a right of way 60 feet wide to the railroad. And he also conveyed to the town of Bryan the land on which the town is situated to Groesbeck, Bice, and others in 1860.”

Again he testified that Bryan conveyed tlie land for the town site to W. B. Baker and A. Groesbeck. If there is any deed to the town, it should be introduced in evidence. We believe, from a consideration of all the evidence on this point, that the deed was to Baker and Groesbeck, and that there is no evidence in the record other than the map recorded by them which casts any light upon the question whether they intended to reserve to themselves the open spaces or to dedicate the same to the public If they made and recorded the map, and there is no evidence of any further claim by them to such open spaces, nor any other evidence indicating an intention to retain such spaces, it is clear that the recording of the map does not evidence a transfer to the city of such spaces, but evidences an intention to dedicate the same to the use of the public as commons or ways.

As the evidence does not, in our opinion, show as a matter of law that all the land in controversy was not public grounds, it cannot be said that the errors pointed out were harmless.

The motion for rehearing is overruled.
      <§a»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      cSx^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    GIBSON v. CARROLL.
    (No. 5516.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 17, 1915.
    Rehearing Denied Dec. 15, 1915.)
    1. Deeds i&wkey;112 — Description—Reference.
    Where a conveyance referred to a recorded map for description, such map and metes and bounds of the lot as delineated thereon are a part of the instrument.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 823, 324; Dec. Dig. &wkey;112.]
    2. Deeds <&wkey;120 — Conveyances—Effect.
    ,A grantee can acquire no greater title to land than her grantor possessed.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 375-393, 401, 407-412, 416-454; Dec. Dig. @==3120.]
    3. Dedication <&wkey;19, 38 — Plats — Designation ox Streets.
    A plat of land which sets apart streets to the public is equivalent to a conveyance, and the easement granted is irrevocable.
    [For other cases, see Dedication, Cent. Dig. j 35, 37-47, 77, 78; Dec. Dig. &wkey;19, 38.]
    4. Navigable Waters <@=39 — Riparian Rights — Accretion—Reliction—Wharves.
    The riparian rights of a landowner whose property abutted upon a navigable gulf are those of access, the right to acquire the fee in accretions and alluvion, as well as in land exposed by reliction, together with the privilege of building a wharf.
    [Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 21, 53, 82, 103, 112, 117, 127, 239-244; Dec. Dig. &wkey;39.]
    ' 5. Eminent Domain <&wkey;45 — Condemnation.
    Water rights can be condemned for public ways, as can any right connected with land.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 94r-100, 102, 106; Dec. Dig. <@=45.]
    6. Dedication <@=53 — Land under Water-Riparian Rights.
    Where a riparian proprietor filed a plat declaring the dedication of a street in land covered by water, which was beyond the boundaries of his parcel, such dedication carried with it the riparian rights, and a subsequent grantee whose conveyance referred to the recorded plat and described the parcel as bounded by the street takes only to the street, and does not acquire any riparian rights.
    [Ed. Note. — For other cases, see Dedication, Cent. Dig. § 96; Dec. Dig. <§=53.]
    7. Injunction <&wkey;114r — Title—Right to.
    In the absence of riparian rights, plaintiff is not entitled to enjoin another from building a wharf on the bank of a navigable gulf; the injunction being sought on the ground that it interfered with such rights.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 202-220; Dee. Dig. @=114.]
    8. Navigable Waters @=46 — Riparian Rights — Alienation.
    Riparian rights may be alienated separately and apart from the land to which they are appurtenant.
    [Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 283-291, 293; Dec. Dig. @=46.]
    Appeal fropi District Court, Nueces County ; W. B. Hopkins, Judge.
    Action by Mary A. Carroll' against C. W. Gibson. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    G. R. Scott and Boone & Pope, all of Corpus Christi, for appellant. D. McNeill Turner, Russell Savage, and H. R. Sutherland, all of Corpus Christi, for appellee.
   MOURSUND, J.

Appellee, Mrs. Mary A. Carroll, applied for an injunction to restrain appellant, C. W. Gibson, from building any wharf or fishhouse, or filling in the waters of Corpus Christi Bay in front of lot 6, block 6, of the beach part of the city of Corpus Christi, which lot was claimed to be owned by appellee, and from interfering with the exercise by appellee of her rights as riparian owner of said lot. Appellee based right to the relief prayed for upon the ground that she was the owner of a lot which was riparian to said bay. She alleged that the two surveys upon which the city was located included no part of the waters of the bay or the land or soil thereunder; that J. Temple Doswell became the owner of the two surveys on October 2, 1849, and on January 20, 1868, caused the map and plan of the city to be made, delineating thereon the blocks, lots, streets, and alleys as they were supposed to exist on the ground at that time, and that this map was thereafter by judgment of the county court ordered recorded in the records of deeds as the map of said city. Appellee’s title is set forth in the petition, each of the conveyances containing a description of ap-pellee’s premises by lot and block number, according to said map of the city. Appellee alleged that at the time of the dedication of said map, and on the dates of the several deeds referred to in the petition, said lot was bounded and washed by the waters of Corpus Christi Bay, and was then, and ever since has been, riparian to said bay. She alleged further that appellant deraigned title from said Doswell, by conveyance executed long after appellee’s lot was conveyed by Doswell; that appellant’s lot, which is known as lot 6, water block 7, had not existed as land, and, if it ever had existed as land, it had ceased to exist as such more than 50 years before this suit was filed; and that title thereto was in the state.

Appellant, in his amended original answer, under oath, denied all the allegations of appellee’s petition, and specially pleaded, in substance: That the map recorded by Doswell constituted a dedication of the streets, and according thereto appellee’s lot was opposite and to the west of appellant’s lot, and separated therefrom by a public street 60 feet wide, designated as Water street; that at the time of such dedication Doswell owned all of the property in fee simple and all riparian rights incident thereto, and reserved all such rights in the streets; that after such dedication the lot claimed by appellee was sold, the description being by lot and block number with reference to said map, and by reason of the intervention of said street became divested of all rip-arian rights; that said lot was never contiguous to and never abutted on said bay, and the street known as Water street has been in existence since the original dedication, and has been continuously used and occupied as a street; that at the time of such dedication appellant’s lot existed as land abutting on the bay ; that, if any riparian rights were ever incident to appellee’s lot, the same became segregated therefrom by the platting of said city, and the reservation thereof by Doswell in said map, and appellee, and those under whom she claims, having purchased by said map, became estopped to assert or claim any such rights; that appellant’s lot has been generally and publicly known for 50 years, and has existed as land for more than 30 years, during which time appellant and those under whom he holds have had possession thereof and paid taxes thereon; that said Water street has since its dedication existed as a well-defined public street, and has been continuously used and recognized as such, and appellee and those under whom she claims have at all times recognized and acquiesced in the dedication and use of said street, and are now estopped to assert any rights beyond the lines thereof.

Appellee, by supplemental petition, denied the allegations of the answer, and particularly that the city had ever taken possession of or accepted that portion of Water street referred to therein, and alleged that there never was any land in front of her property. She also alleged that the city does not claim said portion of Water street, but recognizes her rights; that the deed under which she claims contains- no reservations in favor of Doswell, and she pleaded good faith and payment of valuable consideration without notice of any claim on the part of Doswell.

A temporary injunction was granted upon the filing of the petition, and on December 3, 1914, judgment was entered, after trial upon the merits, overruling a motion to dissolve such injunction and perpetuating the same.

The court filed findings of fact, in substance, as follows:

(1) That plaintiff is the owner in fee simple of the parcel of land known as lot No. 6 in block 6 on the beach part of the city of Corpus Christi, Nueces county, and that said lot rightfully fronts on, and is bounded on the east by, the shore line and waters of Corpus Christi Bay, a navigable body of water and navigable arm of the Gulf of Mexico.

(2) That defendant asserts ownership to that portion of the waters of Corpus Christi Bay, and the land and soil thereunder, immediately east of plaintiff’s above-described premises, bounded as follows:

“Beginning sixty feet east of the N. E. corner of plaintiff’s said lot, in the waters of said bay; thence east one hundred and fifty feet to stake in said waters; thence south fifty feet to stake in said waters; thence west through said waters one hundred and fifty feet to stake in said water sixty feet due east of plaintiff’s S. E. corner; thence north fifty feet, in the waters of said bay, to the place of beginning.”

That said lot is known and designated upon the map, hereinafter described in finding No. 5, as lot No. 6, water block 7, of said city, and is now so shown upon the maps of the city.

(3) Plaintiff and defendant deraign title under Levi Jones, the original grantee of the two leagues upon which the city of Corpus Christi is located; that the patents to said two leagues contain no express or implied grant of any part of the waters of Corpus Christi Bay, or the land or soil thereunder, but, on the contrary, by express limitations exclude therefrom the waters of and soil under said bay, as is shown by the metes and bounds contained in the patents. The metes and bounds are copied by the court, but it will be sufficient to say.that each calls to begin on the bay and to run with the meanders thereof; the courses and distances of the meanders being stated.

(4) Said two leagues were on October 2, 1849, conveyed by said ,Levi Jones by warranty deed to J. Temple Doswell.

(5) That on or about January 20, 1868, said Doswell, by his substituted agent and attorney in fact, Chas. Lovenskiold, caused to be made a map or plan of the city of Corpus Christi, upon which were delineated the several blocks, lots, streets, alleys, and certain dedicated public places of said city as it was supposed to exist on the ground at that date and time, which map was on July 27, 1874, by judgment of the county court of Nueces county, ordered recorded in the records of deeds of said county; that the lots and blocks as shown upon said map are in like maimer shown upon the maps now recognized in the city of Corpus Christi.

(6) That plaintiff’s lot borders on and is riparian to the waters of Corpus Christi Bay, and has for the past 50 years reached to and been washed by-the waters of said bay.

(7) The lot claimed by defendant is entirely covered by the waters of the bay, and has never within the past 50 years existed as land, but has been a part of the navigable waters of the bay, and covered thereby to a depth of from one to two feet.

(8) That defendant about January 1, 1912, entered into the property claimed by him and began filling up the waters of the bay with dirt and rock, and began to drive piling therein; that defendant intends and is prepared to construct a wharf and fishhouse for his own private use upon said claimed premises.

(9) That the work done by defendant has interfered with the plaintiff in the use of her said lot. The building of said wharf and fishhouse and the filling in of said premises claimed by defendant will deprive plaintiff of the enjoyment of her rights as riparian owner of lot 6, block 6, and will greatly lessen the value of her property.

Briefly stated, the substance of the conclusions of law filed by the trial court is that appellant acquired no right or title by virtue of the conveyances under which he claims, and that appellee, as the owner of a lot in contact with the waters of the bay, was entitled to prevent the erection of any obstructions in the water in front of her lot.

The findings of fact and conclusions of law of the trial court have been attacked in many assignments of error. We shall dispose of the questions of fact and law presented, without stating and discussing each assignment separately.

It is contended that the court erred in that portion of the first paragraph of the findings of fact in which it found that appellee’s lot rightfully fronts on and is bounded 9a the east by the shore line and waters of Corpus Christi Bay, and also in the six paragraphs to the effect that plaintiff’s lot borders on and is riparian to the waters of Corpus Christi Bay, and has for 60 years reached to and been washed by the waters of such bay. Appellant says that the evidence conclusively shows that during all the time since the map was made, which is described in paragraph 5 of the findings of fact, appel-lee’s lot has been separated from the bay by the street designated on said map as Water street.

We find that the testimony of appellee’s witnesses, while in conflict -with the maps on record, supports the findings made by the court.

According to the findings of the trial court, there was no land between the east line of appellee’s lot at the time Doswell made and filed for record his map of the city, in 1868, or at the time the lot owned by appellee was conveyed to Eliza Sullivan, in 1878; in other words, if the conveyance of the lot to Sullivan be considered without reference to the effect thereon of the map to which it refers, said lot was, in fact, a riparian lot at the time the map was recorded and at the time the lot was conveyed by Doswell; for, as a matter of fact, no street or part of a street actually separated the lot from the water’s edge. There was, however, at the time of the trial a street about 60 feet wide, which had come into existence on account of the erection of breakwaters, and the filling in upon the site of Water street as delineated on the map, as well as by reliction. In addition to the.construction of breakwaters and the filling in by individuals, it appears that about the year 1907 the city of Corpus Christi had 100 tons of rock put in as a breakwater, and has from time to time filled in upon the site of the street.

As the conveyance to Eliza Sullivan of the lot now owned by appellee refers to the map filed by Doswell for description of such lot, it becomes necessary to consider what effect the making and recording of the map described in the court’s fifth finding of fact had with respect to the riparian rights which were theretofore owned by Doswell as the owner óf the surveys subdivided into lots and streets. This map shows a street 60 feet wide, named Water street, as existing east of block 6, in which appellee’s lot is situated, and a portion of water block 7 as existing between the east line of the street and the shore of the bay, the remainder of said block 7 extending out into the bay. This map also contains the following reservation:

“Except when specially conveyed, all accretions or alluvion in front of water lots and 150 feet from the eastern boundary of Water street is reserved by J. Tdmple Doswell.”

The trial court concluded that, as Doswell had no title to land under the waters of the bay, he could not .convey such land, but it does not follow that he could not convey, separately from the land which is riparian to the bay, those rights in and to the shallow waters of the bay which he had as the owner of the riparian land. Eliza Sullivan having accepted a conveyance which referred to a certain map for description, such map became a part of the deed, and the metes and bounds of her lot as delineated on said map became as much a part of her deed as if they had been set out therein. Eliza Sullivan could acquire no greater rights or title than Doswell owned. He had placed on record a map in which he undertook to dedicate a street adjoining the lot conveyed to Eliza Sullivan. A plat which sets apart streets to the public is equivalent to a conveyance, and the easement conveyed is irrevocable. Elliott on Roads & Streets (3d Ed.) § 130. If, in fact, there had been any land lying east of the lot conveyed to Eliza Sullivan, there is no doubt that it would have become a street by virtue of the recording of such map, but the court found that the waters of the bay reached to said lot. Doswell did not own any title to the submerged ground he undertook to make a street, but, as the owner of the lots found by the court to be riparian in 1868, he owned the riparian rights appurtenant to such lots. Among these rights were those of access, of right to acquire the fee in accretions and alluvion as well as in land exposed by reliction, and also the right to build a wharf.

Water rights can be condemned for purpose of public ways, and so can any right connected with land. Elliott on Roads & Streets (3d Ed.) § 239. Such rights can be conveyed for the purpose, and it seems clear that before Doswell filed his map his riparian rights in shallow water adjoining the shore could have been condemned or purchased for road purposes. When he recorded his map showing a street at a place where he had the right to acquire land formed by accretions, alluvion, or exposed by reliction, he conveyed to the public those rights and such others as he had. As there was water at such place when the map was filed, it necessarily follows that, in spite of that fact, Doswell intended to give, and did give, the Tight to the public to have a street at said place, which could only be done by the coming into existence of land above the water through one of the methods referred to above or by filling in. It is therefore clear that he dedicated the riparian rights necessary for the purpose to the public in order that a street might be established at that place. As he depicted this street to be, not through the water, but on dry land, it is evident that he intended that kind of a street, and it did come into existence with appellee’s consent, and has been used by the public for a number of years. As Doswell had conveyed all his riparian rights to the public in so far as they were necessary to the creation of the street, he could pass no title thereto to Miza Sullivan by his subsequent conveyance to her, had he attempted to do so. But, having made the map a part of his deed to Elliza Sullivan, his intention not to convey to her any riparian rights is conclusively shown, and the deed should be so construed. If the premises granted are bounded in terms by a public street or road which separates them from the water, they extend only to the center of the road or street, and the grantee is not a riparian owner. Gould on Waters, § 148, and cases cited in support thereof. The map shows that it was never intended for purchasers of lots in block 6 to own and hold riparian rights. It shows clearly that those who might purchase lots had the right, as against Doswell, of filling up upon the premises represented on the map by Water street so it would be like other streets, and it was not the intention that any one lot owner in block 6 could have prevented said premises from being used as a street, but such would be the effect of holding that such lot owner acquired all the riparian rights which Doswell had ever owned as an incident to said lot.

In support of the conclusion that Eliza Sullivan acquired no riparian rights under her deed and that appellee has none, we cite Kenyon v. Knipe, 2 Wash. 394, 27 Pac. 227, 13 L. R. A. 142-145; Miller v. Mendenhall, 43 Minn. 95, 44 N. W. 1141, 8 L. R. A. 89, 19 Am. St. Rep. 219; Grant v. Oregon R. & Nav. Co., 49 Or. 330, 90 Pac. 178, 1099; Bartlett v. Forrest, 12 Wash. 486, 41 Pac. 194; Oliver v. Klamath Lake Nav. Co., 54 Or. 99, 102 Pac. 786; Gilbert v. Eldridge, 47 Minn. 210, 49 N. W. 679, 13 L. R. A. 411; Banks v. Ogden, 2 Wall. 57, 17 L. Ed. 818; Gilbert v. Emerson, 60 Minn. 62, 61 N. W. 820; N. P. R. R. Co. v. S. & H. L. Co., 73 Minn. 25, 75 N. W. 737; Parker v. Taylor, 7 Or. 435; Morris v. U. S., 174 U. S. 196, 19 Sup. Ct. 649, 43 L. Ed. 946; Farnham, Waters & Water Rights, § 724.

As appellee’s right to the relief sought is dependent upon the ownership by her of riparian rights, our holding that she has no such rights requires a decision adverse to her, regardless of whether appellant has any rights in the premises known as lot 6, water block 7. It is therefore unnecessary to enter upon a discussion of the rights claimed by him.

Appellee contends that, in this state riparian rights cannot be alienated separately and apart from the land to which they are appurtenant, and cites Galveston v. Menard, 23 Tex. 349; Rosborough v. Picton, 12 Tex. Civ. App. 116, 34 S. W. 791, 43 S. W. 1033; Hynes v. Packard, 44 S. W. 548; Richter v. Granite Mfg. Co., 174 S. W. 284. In the first case cited the court says:

“This species of property, being land covered with navigable water, embraces several rights that may be separated and enjoyed by different persons, and may become thereby partly private and partly public, as the right to the soil, a right to fish in its waters, the right to navigate the waters covering it, etc. These may be acquired, separately and exclusively, from the proper granting power, or they may be acquired, as it has been held, in England and many of the states, by prescription and immemorial custom. In some countries they are held to be acquired as an incident to the ownership of the adjoining lands, as, for instance, the right of the owner of the land on the shore to extend a wharf across the shore, or even to low-water tide, or to a certain fixed distance. These riparian right's have been held to have been acquired by various modes, as by grant, by statute, by long custom, by prescription, and the like.”

This appears to be a clear recognition of the doctrine that riparian rights may be acquired separately from the land by grant or prescription. The next two cases relate only to the title to the land covered by navigable waters, but not to riparian rights. In the last cited ease the Supreme Court held a reservation of water rights void, on the ground, as we understand the opinion, that no valid reservation of riparian rights can be made so as to separate the same from the land to which such rights were incident. The court cited and quoted from the case of Risien v. Brown, 73 Tex. 135, 10 S. W. 661. We do not construe that case as sustaining the doctrine that riparian rights cannot be conveyed separately from the land. The holding of the court on that branch of the case, as we understand the opinion, is expressed in the following words:

“The deed from McAnelly to Brown of April, 1S66, we think conveyed to the latter title to the land therein described to the middle or thread of the creek. In addition to this, the clause we have referred to, read in the light of all the facts and circumstances disclosed by the record, conveyed to Brown the right and privilege of using the waters of the creek and of controlling the same for the purpose of erecting machinery, and conveyed also to him the right to use the waters of said creek by the erection of a dam across the same, although it should become necessary in erecting such dam to use the west bank of the creek, owned by another person.”

The expression from the opinion copied in the Richter Case, we think, was not intended as a conclusion of law, but as an argument that McAnelly’s reservation in his deed to Rogan should not be taken to mean that he had not conveyed all his water rights to Brown, but should be taken as evidencing a desire not to convey to Rogan what he had already parted with to Brown.

We have many cases in Texas which hold that riparian rights may be acquired by prescription, which is based upon the presumption of a grant. Haas v. Choussard, 17 Tex. 588; Baker v. Brown, 55 Tex. 381; Rhodes v. Whitehead, 27 Tex. 316, 84 Am. Dec. 631; Irrigation Co. v. Vivian, 74 Tex. 173, 11 S. W. 1078; Watkins Land Co. v. Clements, 98 Tex. 584, 86 S. W. 733, 70 L. R. A. 964, 107 Am. St. Rep. 653; Martin v. Burr, 171 S. W. 1045. In several of these cases it seems to be taken for granted that such rights can be purchased separately. The validity of reservations of water rights, or conveyances thereof, was recognized, in the following cases by Courts of Civil Appeals: Weynand v. Lutz, 29 S. W. 1097; Stratton v. West, 27 Tex. Civ. App. 525, 66 S. W. 244 (writ of error denied); Metcalfe v. Faucher, 138 S. W. 1114.

In the Richter Case the Supreme Court quoted with approval from the case of Land Company v. Emerson, 38 Minn. 406, 38 N. W. 200, 8 Am. St. Rep. 679, which case was expressly overruled in the case of Hanford v. St. Paul & D. R. Co., 43 Minn. 104, 42 N. W. 596, 44 N. W. 1144, 7 L. R. A. 722, and the latter case has been adhered to by the Supreme Court of Minnesota in many cases.

The judgment of the trial court is reversed, and judgment rendered that appellee take nothing by her suit.
      @=3For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    JEANS v. LIQUID CARBONIC CO.
    (No. 5394.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 28, 1915.)
    1. Justices oe the Peace <&wkey;44r — Jurisdiction — Amount in Controversy.
    A justice’s court had jurisdiction of a suit for the conversion of a soda fountain alleged to be worth $350, where plaintiff alleged his damage to be only $199.50 by reason of his indebtedness to the defendant in the sum of $180, with interest thereon, to secure the payment of which defendant held a mortgage on the soda fountain, as plaintiff’s damage, if any, was less than the amount alleged, $199.50.
    [Ed. Note. — Eor other cases, see Justices of the Peace, Cent. Dig. §§ 157-172; Dec. Dig. &wkey;»44.]
    2. Justices oe the Peace &wkey;>175 — Appeal-Evidence — Actual Value.
    In an action for the conversion of a soda fountain, the reasonable value of which was alleged to be $350, evidence of its actual or intrinsic value was admissible on appeal to the county court.
    [Ed. Note. — Eor other cases, see Justices of the Peace, Cent. Dig. §§ 694r-698; Dee. Dig. &wkey;175.]
    Appeal from McLennan County Court; Geo. N. Denton, Judge.
    On motion for rehearing.
    Motion granted. Former judgment of dismissal set aside, and cause reversed and remanded for new trial.
    Eor former opinion, see 173 S. W. '643. See, also, 178 S. W. 1020.
    James E. Yeager, of Waco, for appellant. Harry P. Jordan and R. L. Neal, both of Waco, for appellee.
   JENKINS, J.

At the last term of this court we dismissed the appeal herein upon the ground that the amount in controversy was in excess of the jurisdiction of the justice’s court, where the case originated. As we construed the appellant’s pleadings, the suit was for the value of a soda fountain of the alleged value of $350, alleged to have been converted by appellee. We overruled appellant’s motion for a rehearing, but subsequently, on our own motion, set aside our judgment on said motion and continued the same to the present term of this court.

We have concluded that we were in error in dismissing the appeal herein. While it is true that appellant alleged the value of the soda fountain to be $350, he alleged his damage, by reason of such conversion, to be only $199.50. This by reason of the fact that he was indebted to appellee in the sum of $180, with considerable interest thereon, to secure the payment of which appellee held a mortgage on said soda fountain, so that the amount of damages suffered by appellant, if any, by reason of the alleged conversion of the soda fountain, was less than the amount which he alleged, viz., $199.50.

Appellee did not raise the question of jurisdiction in either the justice or the county court. Appellant recovered judgment in the justice’s court for $95.60. Upon the trial of the case in the county court appellant offered to prove the actual or intrinsic value of the soda fountain, to which appellee objected, for the reason that, appellant having alleged the “reasonable value,” he was limited to proof of the “market value.” The court sustained the objection. This was error. The allegation of reasonable value is sufficient to admit evidence of me actual or intrinsic value, especially under the liberal rules of pleading in justices’ courts and in county courts in cases appealed from justice courts. Railway Co. v. Davidson, 25 Tex. Civ. App. 134, 60 S. W. 278.

On account of the refusal of the court to admit said evidence, the appellant’s motion for a rehearing is granted, our former judgment of dismissal herein is set aside, and this cause is reversed and remanded for a new trial.

Motion granted. Judgment reversed, and cause remanded.
      <®us>Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBTJRY, J.

text:
    ASHLEY v. HOLLAND.
    (No. 7409.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 13, 1915.)
    1. Evidence <&wkey;434r-VENDOR and Purchas-eb <&wkey;343 — Pabol Evidence — Quantity of Land.
    Where plaintiff sold land at $05 an acre, representing orally and by his deed that the several tracts contained 267 acres, though knowing that such tracts did not contain so much, the buyer, relying upon the representation as to the acreage and giving his dry goods store as part of the price, could recover of the seller $65 each for the 9 acres deficient, since where land is in fact sold by the acre under a misapprehension of its acreage, caused by fraud, as in the present case, accident, or mistake, the buyer may recover for the deficiency, and parol evidence is admissible to show it.
    [Ed. Note. — For other cases, see Evidence, Cent. Djg. §§ 2005-2020; Dec. Dig. <&wkey;434; Vendor and Purchase^ Cent. Dig. §§ 1023-1029; Dec. Dig. 4&wkey;343.]
    2. Vendor and Purchaser <&wkey;349 — Quantity of Land — Recovery for Deficiency-Allegation of Fraud — “Fraud.”
    Where the petition of a buyer of realty alleged that defendant seller represented that the land contained 267 acres, though knowing at the time that such was not the case, and that the buyer relied upon such representations as to the acreage, such petition sufficiently averred fraud, though nowhere using the word itself to denounce the seller’s representations, to admit parol evidence to show the shortage in the lands, since the facts alleged constituted fraud in law, while fraud need not be pleaded as such, as it is a conclusion of law from alleged facts, and not a fact itself.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1033, 1039-1042; Dec. Dig. <§=>349.
    For other definitions, see Words and Phrases, First and Second Series, Fraud.]
    3. Vendor and Purchaser <&wkey;350 — Quantity of Land — Deficiency—Sufficiency, of Evidence.
    In an action by a buyer of land at a price per acre to recover for a nine acre deficiency, evidence held to support a finding that defendant represented there were 267 acres, which statement was believed and relied upon; it subsequently being found there were only 250 acres.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1043-1046; Dec. Dig. &wkey;350.]
    4. Afpeal and Error &wkey;>1001 — Review — Findings on Conflicting Evidence.
    An appellate court can disturb the trial court’s finding only where it is without any supporting evidence, since it is the prerogative of.the trial judge to solve conflicts in evidence.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. &wkey;1001.]
    5. Vendor and Purchaser <&wkey;34 — Quantity of Land — “Mistake.”
    Where the seller of land by the acre told the buyer there were 267 acres, the buyer having confidence in the seller, believing the statement, and relying implicitly thereon, subsequently finding that there were only 258 acres, the misconception of the buyer as to the amount of land was due to fraud, in contemplation of law, and was not an instance of “mistake,” which is an erroneous mental condition, conception, or conviction induced by ignorance, misapprehension, or misunderstanding of the truth, but without negligence, resulting in some act or omission done or suffered erroneously by one or both of the parties to a transaction, but without its erroneous character being intended or known at the time.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 39; Dec. Dig. <&wkey;34.
    For other definitions, see Words and Phrases, First and Second Series, Mistake.]
    O. APPEAL AND 1ÜRROR &wkey;>854 — HARMLESS Error — Incorrect Reason.
    The assignment by the trial court of an erroneous reason for taking action, correct on other grounds, is harmless error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3403, 3404, 3408-3424, 3427-3430; Dee. Dig. <£=>854.]
    7. Vendor and Purchaser <&wkey;352 — Quantity of Land — Determination of Deficiency-Question of Fact.
    In an action by a buyer of land by the acre for a deficiency in the number of acres conveyed, the issue of whether such deficiency exists is, under appropriate pleading, a question of fact aliunde the deed for the determination of court or jury.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 1059; Dec. Dig. <&wkey;
    8. Evidence <&wkey;379 — Proof of Survey.
    In an action by a buyer of land by the acre to recover for a deficiency, where a county surveyor testified that such part of his notes as were used by a second surveyor in making a last survey were correct, and such second surveyor swore that his notes were correct, such mode of establishing the correctness of the last survey, for a portion of which the second surveyor had been compelled to rely upon the county surveyor’s notes, was proper.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1656; Dec. Dig. &wkey;>379.]
    9. Vendor and Purchaser <&wkey;350 — Remedies of Parties — Sufficiency of Evidence.
    In an action by the buyer of land by the acre against the seller to recover for a deficiency in acreage, the seller attempting to diminish the recovery on the ground that part of the stock of goods which the buyer had given him in part payment of the price was shopworn, evidence held insufficient to support the court’s finding of the defective condition of the goods.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1043-1046; Dec. Dig. <&wkey;350.]
    10. Appeal and Error &wkey;»1153 — Reformation of Judgment.
    The appellate court can reform the judgment to enter such a one as the lower court should have entered only when it appears that the facts have been fully developed and further competent evidence cannot be introduced to support the judgment below.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4507-4512; Dec. Dig. <&wkey; 1153.]
    Appeal from District Court, Collin County; W. M. Peck, Judge.
    Action by W. C. Holland against J. W. Ashley. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    J. R. Gough, of McKinney, for appellant. Wallace Hughston, of McKinney, for appel-lee.
   RASBTJRY, J.

Appellee sued appellant in the court below to recover judgment for $585, basing his right thereto on the ground that he purchased from appellant three tracts of land which appellant represented contained 267 acres, but which, when surveyed, disclosed a deficiency of 9 acres, and for which he had paid $65 per acre. Appellant pleaded, omitting that portion of his answer raising issues not presented on appeal, that he conveyed said land to appellee in exchange for a stock of general merchandise owned by appellee, and that in making the exchange of properties no representations were made concerning the quantity of land, but that ap-pellee accepted same as it was pointed out to him without reference to the number of acres actually contained in the several tracts. Further, by way of reconvention, appellant alleged that appellee represented to him that the merchandise taken by appellant in exchange for his lands was fresh and new and reasonably worth the price appellant agreed to pay therefor, while in truth same was old, shelfworn, and worth $1,000 less than the price agreed to be paid, for which amount appellant sought judgment over against ap-pellee. Any further reference necessary to be made to the pleading will be made in considering the assignments of error.

There was trial before the court, who filed conclusions of fac-t and law. The conclusions of fact are as follows:

(X) That on the 24th day of December, 1908, defendant exchanged three tracts of land in Hunt county, Tex., described in plaintiff’s petition, with plaintiff fori a stock of goods in White-wright, Tex., at marked cost, amounting to $19,-000, plaintiff receiving from defendant in money $1,645, which was for the excess in value of said stock, and defendant and his wife executed a warranty deed to said land to plaintiff, in which deed, after the description, were the words “containing 267 acres of land,” and the purchase price agreed upon for the land was $65 per acre, amounting to the sum of $17,355 for 267 acres.
(2) That prior to the execution of said deed there were negotiations between the parties in which defendant represented to plaintiff that there were 267 acres in said three tracts of land, and plaintiff represented to defendant that the stock of goods was in good condition. That the respective parties believed and relied upon said respective representations, and a written contract for the exchange of property was signed by said parties before the property of either was delivered to the other.
(3) That on account of pressing business of defendant the land was not surveyed at the time of the trade, but that defendant went with plaintiff and showed him over the land and represented to him that there were 116 acres in one tract, 50 acres in another, and 101 acres in another, and that the tracts contained 267 acres. That about the 15th day of September, 1911, plaintiff sold the land to J. M. Porter-field and had it surveyed, and then found said tracts contained 258 acres only, and plaintiff made good the shortage of § acres to Porterfield. That there was a mutual mistake as to the number of acres, which the court finds to be 25S acres, being a shortage of 9 acres in said 116 acres tract, of the value of $585. That plaintiff called on defendant to pay him $585 for the shortage in said tracts of land which defendant failed and refused to pay, and plaintiff filed this suit on the - day of -, 191 — .
(4) That said sale was not in gross, but was taken in said exchange at 267 acres valued at $65 per acre.
(5) That the parties agreed that plaintiff’s said stock of goods was to be taken by defendant in exchange at marked cost; that is, the price marked upon the goods. That plaintiff showed defendant through the store in order for him to examine said goods, and the defendant did examine the goods, except that he was not shown and did not examine a portion of the goods, valued at $3,000, which were under counters or behind curtains, and after the trade was made, and while the invoice was being taken, defendant found that some of said portion were not in as good condition as the goods defendant had examined. The court finds that plaintiff did not intend to deceive defendant by failing to show him the groods which were undér counters or behind curtains, but that defendant was misled as to the condition of said portion of the goods until the invoice was being made.

The conclusions of law are as follows:

1. There being a mutual mistake in the number of acres of land, and there was a shortage therein of 9 acres, at $65 per acre, amounting to $585, for which plaintiff is entitled to recover, less a reduction of $250 as hereinafter stated.
2. That in seeking equity plaintiff is required to do equity, and that a portion of the goods given by him in exchange for said land not being in as good condition as represented, it is adjudged by the court that same reduced the value of said stock $250, which should be deducted from the said sum of $585, for equity will not protect an unfair advantage.
3. Wherefore I conclude that plaintiff is entitled to recover the sum of $335 of defendant, with interest thereon at 6 per cent, per annum from January 1, 1909, $103.90, being principal and interest $438.90.

Judgment, and from which this appeal is taken, was in accordance with the conclusions of law.

The first assignment of error is that the court erred in overruling appellant’s general demurrer leveled against the sufficiency of appellee’s petition, the effect of which is to assert that it does not state a cause of action. The essential portions of appellee’s petition, omitting formalities and the description of the lands, are, in our own language, that appellant represented to appellee orally and- in writing that he was the owner of certain tracts of lands in Hunt county, Tex., which contained 267 acres, and that appellee relied on such representations, and so relying bought the land of appellant, who executed deed therefor representing and describing said land as containing 267 acres, upon which appellee also relied, and for which ap-pellee paid at the rate of $65 per acre; that subsequently and upon actual survey it developed that said several tracts of land actually contained only 258 acres of land; that the appellant at the time of said transactions knew that said tracts of land did not contain 267 acres of land, or, if he did not know it, he was in possession of facts which placed him upon notice thereof; that appellee did not discover that said tracts of land did not contain 267 acres until nearly three years after purchasing same; but that his failure to sooner discover that fact was due to the assurance of appellant, who deferred survey at the time of purchase because of other pressing business matters, that there were not 267 acres therein, and the deficiency was discovered only when appellee subsequently sold to another. The deed from appellant to ap-pellee was attached to the petition, and was the usual form of general warranty deed, and described the land as containing a total of 267 acres.

Do the foregoing facts state a cause of action? This court has held that:

“It seems to be settled law by the decisions of this state that the general covenants of warranty in a conveyance of land applies to the title and not to the quantity of the land, and hence such covenant is not broken by a deficit in the number of acres named in the deed, even though the land may have been sold by the acre.” Mosteller v. Astin, 129 S. W. 1136, and cases cited.

In the case just cited it is also said that, in cases of sales of land in bulk and a resulting deficiency in quantity, “parol evidence is only admissible to show the shortage, and that the land was in fact sold by the acre, when allegations of fraud, accident, or mistake” are in that respect made. The effect of appellee’s petition is that appellant represented orally and by his deed that said several tracts of land contained 267 acres of land, though he knew at the time that said tracts did not contain as much, and that ap-pellee relied upon such representation as to the acreage of said lands. The petition must, as we have said, show fraud, accident, or mistake. That it does not show accident or mistake is obvious, and appellant asserts that it also fails to show fraud. It is true that the petition nowhere by the use of the word itself denounces the representations of ap-pellee in connection with the number of acres of land contained in the several tracts as “fraudulent.” But the very facts alleged in the petition, if true, in law nevertheless constitute fraud. For it is not correct to say that it is necessary for the pleader to declare that the facts alleged as the basis for the litigants’ relief are in fact fraudulent for the obvious reason that fraud is not a fact but a conclusion of law from alleged facts, since representations which have the 'effect of misleading or deceiving another or influencing his conduct in a material matter are in the eyes of the law the perpetration of a fraud. That the allegations of the petition in the instant case, if true, show as much, we believe to be clear. Accordingly, we think the general demurrer was properly overruled, and that the court’s action in that respect discloses no error.

It is next urged that the court erred in his third finding of fact, because not supported by the pleading and proof. The effect of the finding complained of is that appellant went with appellee upon the land and represented to him that one tract contained 116 acres, one 50 acres, and another 101 acres or a total of 267 acres, but that because of other pressing business matters appellant deferred a survey of the land assuring appellee at the time that the several tracts did contain 267 acres, but that after-wards when appellee sold the land it was surveyed and a deficiency of 9 acres shown, and that hence there was a mutual mistake of the parties. We have already stated the-effect of the pleading of appellant which, in our opinion, was sufficient to admit proof of all the facts found by the court in the finding complained of, save the issue of mutual mistake, to which we will refer but shortly. We have also carefully examined the evidence of appellee in reference to what occurred between him and appellant concerning the number of acres in the several tracts of land, and in our opinion his evidence supports the-finding of the court in that respect. The ap-pellee testified unequivocally that appellant told him there were 267 acres, -and that, having confidence in appellant, he believed the statement and relied implicitly thereon, and that subsequently it was found that there were only 258 acres in the tracts. On the question of surveying the land, said witness testified that appellant gave as his reason for deferring the survey the fact that it was close to the holiday season, and that he wished to give all his immediate time to disposing of the merchandise he had just acquired from appellee, as well as that contained in another store that appellant owned. The evidence in reference to these matters was before the court, acting as judge and jury, and is sufficient to sustain his finding. True, appellant denied the facts to which appellee testified and gave another version of the transaction, which would have sustained a judgment for him had the court accepted his version of the transaction. But, as we have said, it was the exclusive prerogative of the trial judge to pass upon and solve such conflict, and, when he has’ done so, we are without authority to disturb his conclusions, save in cases where there is a lack of any supporting evidence.

As relates to that portion of the finding where it is stated that the deficiency in the land was due to a “mutual mistake” of the parties we readily concede there is no evidence to support such a finding; that is to say, not that the evidence does not sustain the judgment of the court as finally entered, but that the facts found by the court do not disclose mistake, but disclose misrepresentations, innocent doubtless, but nevertheless misrepresentations and consequent legal fraud. Mistake, or “mutual mistake,” as it is often written, is a legal term arising upon proven facts. It is defined—

“as an erroneous mental condition, conception or conviction, induced by ignorance, misapprehension or misunderstanding of the truth, but without negligence, and resulting in some-act or omission done or suffered erroneously by one or both the parties to a transaction, but without its erroneous character being intended or known at the time.” Lott v. Kaiser, 61 Tex. 665.

Hence the finding by the court that there was a “mutual mistake” was a conclusion of law rather than a finding of fact, and is immaterial so far as relates to the correctness of the judgment. This is borne out by the court’s separate conclusions of law, which we have copied herein, and from which it appears that in the court’s opinion the facts found by him constitute in law mutual mistake, whereas correctly they constitute legal fraud, which in the final analysis is but giving an incorrect reason for doing a thing correctly and which being true is no ground for reversal, since it in no respect changed or altered the facts disclosed at trial or could have affected the result, as portrayed by the judgment.

The third assignment of error relates to the finding by the court that the sale was by the acre and not in bulk, and the first proposition thereunder is that whether the sale is by the acre or in bulk is a matter of law arising upon an inspection solely of the deed. We have, in passing upon the action of the court in overruling appellant’s general demurrer, stated the settled rule in such cases, which to repeat is, briefly, that in eases of alleged fraud, accident, or mistake, parol evidence is admissible to show a deficiency in the lands conveyed by deed, and that the land was in fact sold by the acre. Such a case was made by the pleadings in the instant case and was supported by the evidence, as we have shown at another point in this opinion. The issue in such cases under appropriate pleading is a question of fact aliunde the deed for the determination of the court or jury, as the case may be. What we have just said also disposes of the second proposition under the third assignment of error, since it has for its basis a question of fact decided by the court against the contentions of appellant.

The fourth assignment of error asserts that the finding of the court (in answer to special interrogatory propounded by the appellant to the court in the manner of submitting special issues to the jury) that the deficiency was in the 116-aere tract was without support in the evidence. This claim is based upon the method of surveying the 116-acre tract. The evidence discloses that one surveyor surveyed all portions of that tract except where bounded by a creek. That portion was not surveyed by him because the waters of the creek were high and it was impossible to follow its meanders. Prior to the survey just detailed, the county surveyor surveyed the entire tract, and the last surveyor used the notes of the county surveyor along the lines of the creek in reaching his conclusions. The county surveyor was a witness and testified that his notes so used by the last surveyor were correct, and the latter, also a witness, swore that his notes were correct. We can see no objection to this method of establishing the correctness of the survey. It has surely established the correctness of the survey as it would have been established if one of the surveyors had sworn to the correctness of all the field notes.

The fifth and sixth assignments of error are reiterations of assignments already considered by us, but presented in dissimilar manner and which are for reasons already given overruled.

As will be seen from the court’s conclusions of -law, he allowed appellant an offset of $250 against the claim of appellee. This action was based) upon the finding of the court that a portion of the merchandise given by appellee in exchange for appellant’s lands, which were under counters and behind curtains and not examined by appellant, were not in as good condition as those actually examined by appellant. The action of the court in the respect stated is challenged by appellee by proper cross-assignment as being without support in the evidence. As we have stated, the claim was properly pleaded. The evidence in support of the appellant’s claimi and upon which the court below based its judgment is the testimony of appellant as follows:

“It was an exchange of the land for the goods, and the goods were a general mercantile stock; I do not mean dry goods and groceries, but it w.as dry goods and clothing, shoes and hats, general dry goods store. The stock of goods invoiced after the trade was made practically $19,000, and I riaid him something over $2,000 difference. I gave him a check for that on the Planters’ National Bank. There were about 50 or 60 per cent, of those goods that were very good goods, hut there were something like .about $3,000 or $4,000 worth that was under the shelving or under the counters and the counters had curtains down over the sides, that I didn’t know was there until after we went into the invoice. I just made the statement then that I didn’t understand it to be on that basis, that I didn’t know those goods were there. Those goods were not as good goods as the goods I had seen when I inspected them before the sale.”

The question then arises: Is the evidence just quoted, which is all the evidence in the statement of facts on the issue and which is our guide in such matters, sufficient to-sustain the judgment of the court? We conclude that it is not A favorable analysis of the evidence discloses no more than that appellant testified that about 50 or 60 per cent, of the merchandise was very good, but that while he was invoicing the same other merchandise, of the invoice value of $3,000 or $4,000, was found under counters and curtains that he did not see when he originally inspected the stock, which was not as good as that he actually inspected. This evidence, in our opinion, does not afford a basis for the court’s finding. The evidence lacks certainty and probative force. It does not attempt to show what was the real value of the merchandise that was not as good as that which is said to be very good. Whether the merchandise under the shelves and behind curtains was worth 25, 50, or 75 per cent, of marked cost (the basis of the trade), is not shown. Some such proof was necessary to be made as a basis for any finding in respect to the actual value of the goods, since it is obvious that it could have been made. In the absence of such proof, the judgment, in view of the burden cast by law upon the litigant asserting a fact essential to Ms right of recovery, ordinarily will not be permitted to stand; but, in connection with what has just been said, ap-pellee requests us, in the event we conclude Ms cross-assignment well taken, to reform the judgment so as to deny appellant the $250 allowed by the trial court and so as to allow Mm that amount additional on Ms judgment, but if such order cannot be entered to affirm the case. We conclude we are without authority to reform the judgment in the manner stated, for the reason that we may enter such judgment as the lower court should have entered, only when it appears that the facts on the particular issue have been fully developed and that further competent evidence might not be introduced which would support the judgment. It is clear that the appellant’s cross-action is susceptible of sustaining proof which was not introduced at trial. Accordingly, the judgment as requested by appellee is affirmed.

Affirmed.
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