author: HODGES, J.

text:
    DIFFIE v. WHITE et al.
    (No. 1558.)

    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 17, 1916.
    On Motion to Reform Judgment, March 9, 1916.)
    1. Evidence &wkey;460(7) — Parol Evidence — Description in Deed.
    In a deed of land described as “420 acres out of the northeast portion of the Robert Hill survey,” the uncertainty of description, if any appeared upon the face of the deed, and extraneous evidence was inadmissible to supply what was lacking.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2121; Dec. Dig. &wkey;460(7).]
    2. Deeds <&wkey;38(l) — Insufficiency of Description-Validity.
    Such deed would not be treated as void for want of a sufficient description of the land conveyed, unless the description was so defective that the land could not be located by an inspection of the deed and a resort to those muni-ments or evidences to which it expressly, or impliedly refers.
    [Ed. Note. — For other eases, see Deeds, Cent. Dig. § 70; Dec. Dig. <&wkey;38(l)-l
    3. Deeds <&wkey;41 — Sufficiency of Description-Evidence.
    Such deed, expressly referring to the land as a part of the Robert Hill survey, made it proper to resort to the field notes of that survey to ascertain its location, form and area.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. § 84; Dec. Dig. <&wkey;4l.]
    4. Deeds c&wkey;38(2) — Patented Dand — Sufficiency of Description — “Portion.”
    A deed, conveying “420 acres out of the northeast portion of the Robert Hill survey,” was sufficient, where it appeared that the survey contained 836 acres and was in the shape of a square, with all of its boundaries running toward the four cardinal points of the compass, and that the grantor had previously conveyed 231 acres in the northwest corner of the survey and 202 acres in the southwest corner connecting with the tract first conveyed, as the word “portion” might be treated as synonymous with “part,” so that the northeast part of the survey was that part lying between the north and east boundary lines, and where the number of acres to be taken from that part of the survey was equal to or exceeded the area contained in the northeast quarter when subdivided into four equal parts, there was an intent to include at least all of the land in that quarter, and to fix the northeast corner of the survey as the northeast corner of the land conveyed, and from that point the law would construct a survey in the form of a square sufficiently large to embrace the number of acres called for.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 65, 71; Dec. Dig. <&wkey;>38(2).
    For other definitions, see Words and Phrases, First and Second Series, Portion.]
    5. Deeds &wkey;>38(l)— “Description” — Office.
    The office of the “description” in a deed is not to identify the land, but to furnish means of identification.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 65-67, 70, 73-75, 79; Dec. Dig. &wkey; 38(1).
    For other definitions, see Words and Phrases, First and Second Series, Description.]
    6. Evidence &wkey;>452 — Extrinsic Evidence-Description — “Latent Ambiguity.”
    A “latent ambiguity” arises when a deed expresses more than one method for identifying the lines or corners of a grant, and which do ■not harmonize when applied to the ground, or when the description is such that it may, without contradicting or ignoring its terms, be applied to more than one tract of land; but no latent ambiguity arises from the mere fact that the calls in the description conflict with some prior conveyance not referred to or made a part of the instrument.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2093-2101; Dec. Dig. &wkey;452.
    For other definitions, see Words and Phrases, First and Second Series, Latent Ambiguity.]
    7. Deeds <&wkey;93 — Construction — Intent of Grantor.
    The intention of the grantor must be gathered from the language used.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 231, 232; Dec. Dig. &wkey;>93.]
    8. Evidence <&wkey;450(3) — Extrinsic Evidence —“Latent Ambiguity.”
    Where there is no conflict in the terms of the description of a deed, and it fits one tract of land and no other, there is no “latent ambiguity,” and no occasion for the admission of extrinsic evidence to explain the intention of the grantor.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2068, 2069; Dec. Dig. <&wkey;> 450(3).]
    9. Deeds <®=»114(5) — Description—Construction.
    Where the assignee of a survey of 836 acres in the form of a square, with all its boundaries running toward the four cardinal points of the compass, conveyed 231 acres from the northwest corner and 202 acres from the southwest corner, connecting with the first tract, his deed conveying “420 acres out of the northeast portion or part, fixing only the northeast corner,” evidenced an intention that the land conveyed was to be regarded as forming a square, with all sides running toward the four points of the compass, conforming to the north and east boundary lines of the survey, and leaving the distances south and west to which the call should be extended a mere matter of mathematical calculation, whereby the block would be bounded by four sides 1,539.8 varas long.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 329, 388; Dec. Dig. &wkey;114(5).]
    10. Adverse Possession <&wkey;71(3) — Conveyance by One AViti-iout Title.
    The three-year statute of limitations was not available where the portion claimed had been disposed of by the assignee of a survey prior to the execution of the bond for title to the one under whom the adverse party claimed.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 422, 423; Dee. Dig. &wkey;> 71(3).]
    On Motion to Reform Judgment.
    11. Trespass to Try Title &wkey;>32 — Pleading —Admission—Failure of Title.
    In trespass to try title, allegations that plaintiffs purchased the land described from one N. in consideration of a cash payment and certain vendor’s lien notes, and that N. had executed to them a deed with general warranty of title ; that after the purchase they found that it was clouded by reason of the adverse claims of the unknown heirs of a certain person, and other parties defendant; that their title was threatened by the adverse claims set out in the answers of the defendants; that they believed that the titles set up by defendants were paramount to their own title; and that they would be dispossessed, asking a judgment against their war* rantor and a cancellation of the vendor’s lien notes — was in effect an admission that-plaintiffs had no title to that part of the land described in their petition.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 39-41; Dee. Dig. <&wkey;> 32.]
    12. Appeal and Ebbob <S&wkey;1178(6) — Disposition of Appeaj>-Reiiand bob Tbial op Damages.
    In trespass to try title, where the warranty of plaintiffs’ grantor failed to the extent of the land lost to plaintiffs by the reformation of the judgment, but where the warrantor was a party to the suit, not denying his warranty, and there was no proof of the exact amount of the land which would be lost, the case, as between the plaintiffs and their warrantor, would be remanded, to enable them to try the issue of damages resulting from a breach of the warranty.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4614, 4615; Dee. Dig. <&wkey;> 1178(6).]
    Appeal from District Court, Red River County; Ben H. Denton, Judge.
    Trespass to try title by J. A. White and another, in which, after White’s death, his nephew and children were substituted as parties plaintiff, against unknown heirs of Anderson King, in which W. O. Diffie filed a plea of intervention, asking affirmative relief against plaintiffs, and making P. D. Wilson a party defendant, and in which Wilson filed an answer and cross-bill. Judgment for defendants, and for the cross-complainant, and the intervener appeals.
    Reformed and affirmed.
    Chambers & Black, of Clarksville, for appellant. S. W. Harmon, Kennedy & Robbins, and Lennox & Lennox, all of Clarks-ville, and Wright ■& Patrick, of Paris, for appellees.

      Application for writ of error pending in Supreme Court.

   HODGES, J.

In September, 1913, J. A. White and Dero Austin instituted this suit in the district court of Red River county, against the unknown heirs of Anderson King, Jr., and William Gregg, in the form of an action of trespass to try title and to about 400 acres of land described as a part of the Robert Hill survey situated in Red River county. Before a trial White died, and his widow and children were substituted as parties plaintiff. Some of the heirs of Anderson King answered. In November, 1913, the appellant, W. O. Diffie, filed a plea of intervention, setting up a claim of title to about 200 acres of the land described in the plaintiffs’ petition, and asked for affirmative relief. P. D. Wilson, one of the appel-lees, who was made a party defendant, thereafter filed an answer and a cross-bill, in which he set up title in himself to that portion claimed by Diffie. The controversy was finally narrowed to one between Diffie and Wilson, as to which had the title to the 200 acres they both claimed.

The Robert Hill survey was patented to Benjamin Gooch, assignee of Robert Hill, "September 24, 1853. The patent recited that the original certificate was transferred to Gooch February 7, 1840. According to the field notes', the Hill survey contained 836 acres, and was in the shape of a square whose sides were 2,173 varas long. On May 26, 1841, Gooch conveyed by bond for title 231 acres lying in the northwest corner of the Hill survey to Josiah Davidson. On February 3, 1842, he conveyed to James M. Sharp, in the same manner, 202 acres lying in the southwest corner, and connecting with the Davidson tract. The following diagram will show the Hill survey and the subdivisions existing after the sales made to Davidson and Sharp, and also the land involved in this suit:

The appellee Wilson claims title under a deed from Benjamin Gooch to the heirs of Anderson King, assignee of William Gregg, dated December 3, 1854. This deed appears to have been executed, in compliance with a bond for title given by Gooch to William Gregg on November 10, 1843, which recited a cash consideration. The appellant, Diffie, claims under a grant from Gooch to Wm. O. Young. The record shows that on January 29, 1846, Gooch executed a bond for title to Young for 200 acres of land in the Hill survey, lying south of the Davidson tract and east of the Sharp land. On December 5, 1854, Gooch executed a deed to Wm. O. Young, in which the number of acres was omitted, but which in other respects contained the same description embraced in the bond for title. When the appellee Wilson offered in evidence the deed from Gooch to the heirs of Anderson King, it was objected to by the appellant, Diffie, on the ground that it was void because of a defective description. The objection was overruled, and the deed was read in evidence. The following is the description objected to:

“Five hundred and eighty acres of land situated in the county of Red River, State of Texas, on Pecan bayou on the waters of Red river, being a portion of tbe Robert Hill survey of land and a part of tbe James Basham survey, to wit: Four hundred and twenty acres out of the northeast portion of the Robert Hill survey, and one hundred and sixty acres out of the east half of the James Basham survey of three hundred and twenty acres adjoining on the southeast the Robert Ilill survey, and more particularly described by the records of the register’s office in Clarksville.”

That part of the above description which refers to the 160 acres out of the Basham survey is not material in this controversy. It is contended that the language “four hundred and twenty acres out of the northeast portion of the Robert Hill survey” is too indefinite and uncertain to enable a surveyor to locate land. The uncertainty of this description, if there is any, appears upon the face of. the grant itself, and extraneous evidence is not admissible to supply what is lacking. The general rule is that a deed conveying real estate will not be treated as void for want of a sufficient description of the land conveyed unless the description is so defective that the land cannot be located by an inspection of the deed and a resort to those muniments or evidences to which it refers expressly or by implication. 2 Devlin on Deeds, p. 1917. Here the deed expressly refers to the land as a part of the Robert Hill survey, and thus makes it proper to resort to the field notes of that survey for the purpose of ascertaining its location, its form and the number of acres it contains. Brown v. Chambers, 63 Tex. 131.

Upon examination of the patent we find that the Hill survey contained 836 acres, and is in the form of a square, with all of its boundary lines 2,173 varas long and running toward the four cardinal points of the compass. The deed under consideration conveys 420 acres to be taken out of the northeast portion of that survey. We think the word “portion,” as there used, may be treated as synonymous with “part,” without making any material variation in the meaning intended to be conveyed by the grantor. The description would then read: “Four hundred and twenty acres out of the northeast part of the Robert Hill survey.” The northeast part of a survey which has the form of a square is that portion lying between the north and the east boundary lines. Where the number of acres to be taken from that part of the original survey is equal to or exceeds the quantity of land contained in its northeast quarter when subdivided into four equal parts, there is no difficulty in saying that the parties to the conveyance intended to include at least all of the land in the northeast quarter. This would fix the northeast corner of the original survey as the northeast corner of the land conveyed, and thus definitely establish a starting point from which to construct the new survey.

Descriptions similar to that here under consideration have been held sufficient by the courts in other states. Smith v. Nelson, 110 Mo. 552, 19 S. W. 734; Goodbar v. Dunn, 61 Miss. 618; Enochs v. Miller, 60 Miss. 19; Bowers v. Chambers, 53 Miss. 259. In the last case cited the following description was held to be good: “Fourteen acres off N. E. corner E. half S. E. quarter section 20,” etc., and “thirteen acres off N. end W. half S. W. quarter N. of road, section 21,” etc. In discussing the sufficiency of the description the court said:

“It is easy to lay 13 acres off of the end of an eighth of a section, and 14 acres off of the northeast quarter of an eighth.”

In Goodbar v. Dunn this description was held to be good: “Two hundred and twenty-two and a half acres off the south and west part of the south half of section 24.” The court, in discussing its sufficiency, said:

“By this description is conveyed 222% acres to be laid off in a strip of equal depth on the southern and western boundaries of the half section, which lines are by the description made the base lines for the survey.”

In Enochs v. Miller this description was held sufficient:

“One hundred and seven acres in the south part of southeast quarter of section 22, township 3, range 2 west.”

In support of its holding the court referred to Bowers v. Chambers, supra, and McCready v. Lansdale, 58 Miss. 879. In Smith v. Nelson this description was held sufficient:

“One acre, being the southeast corner of the northeast fourth of the southeast quarter of section 2, township 43, range 24, Henry county, Missouri.”

In passing upon the question the Supreme Court of Missouri quoted approvingly the following language from an Ohio decision:

“That corner is a base point, from which two sides of the land conveyed shall extend an equal distance, so as to include by parallel lines the quantity conveyed. From this point the section lines extend north and east so as to fix the boundary west and south. The east and north boundaries only are to be established by construction, and the rule referred to gives them with sufficient certainty.”

Applying the rule referred to in the above quotation, we have the northeast corner as a definitely fixed point where a survey might begin, with the north and the east boundary lines definitely determined. It remains, then, to locate the other two lines. With a starting point of this character the law will construct a survey in the form of a square sufficiently large to embrace the number of acres called for; there being no natural or artificial objects mentioned which would limit the size of the square to a .smaller figure. Hence we conclude that the deed was not subject to the objections urged.

The next question then is, Did the court err in holding that this deed conveyed all of' the unsold portion of the Hill survey; that is, all of the land which had not been previously conveyed to Davidson and Sharp? The court filed the following as a part of his conclusions of law: .

“The deed from Benjamin Gooch to the heirs of Anderson King conveyed the remainder of the Robert Hill survey, deducting the Josiah Davidson and J. M. Sharp tracts; and under said deed the land was located and generally recognized as covering and including all of the land in the Robert Hill survey south and east of the J. M. Sharp tract.”

While there are no specific expressions in the court’s finding to that effect, he must have concluded that the deed from Gooch, under which Wilson claimed, when applied to the land, presented a situation which made it proper to hear and consider extrinsic evidence in order to determine just where the parties intended the south and west boundary lines to run. Extrinsic evidence was admitted, over the appellant’s objection, and formed the basis of the court’s conclusion above quoted. That evidence consisted of facts tending to show that at the time Gooch made the conveyance to the heirs of Anderson King, he had previously conveyed to Davidson and Sharp all of the Hill survey except 403 acres which lay principally in the southeastern portion of the survey. There was also evidence tending to show that subsequent purchasers holding under this conveyance from Gooch paid the taxes on and cut timber from all that part of the land. The action of the court in admitting and considering this evidence is defended by the appellees with the proposition that, while the deed was free from any patent ambiguity which would destroy its efficacy, a latent ambiguity was disclosed when the description it contained was applied to the ground.

“The office of description in a deed or other writing is not to identify the land, but to furnish means of identification.” Holley v. Curry, 58 W. Va. 70, 51 S. E. 135, 112 Am. St. Rep. 944, and cases there cited.

A latent ambiguity arises when the deed expresses more than one method for identifying the lines or corners of the grant, and which do not harmonize when applied to the ground, or when the description is of such a character that it may, without contradicting or ignoring its terms, be applied to more than one tract of land. No latent ambiguity arises from the mere fact that the calls in the description conflict with some prior conveyance not referred to or in any manner made a part of the instrument to be construed.

We must gather the intention of the grantor from the language used; and, where there is no conflict in the terms of the description, and that description fits one tract of land and no other, there is no latent ambiguity and no. occasion for the admission of extrinsic evidence to explain the intentions of the grantor. Jamison v. N. Y. & T. L. Co., 77 S. W. 969; Thompson v. Langdon, 87 Tex. 254, 28 S. W. 934; Johnson v. Archibald, 78 Tex. 96, 14 S. W. 266, 22 Am. St. Rep. 27; Converse v. Langshaw, 81 Tex. 277, 16 S. W. 1031. In Thompson v. Langdon, referred to above, Justice Gaines, of our Supreme Court, said:

“The lines of a grant must be established by the calls in its field notes. If those calls are inconsistent, then certain rules of construction and mere parol evidence may be resorted to in order to resolve the doubt and to establish the line which was actually run by the surveyor. It'is but a case of a latent ambiguity in a written instrument. A writing unambiguous upon its face may become doubtful when applied to the subject-matter of the description. On the other hand, if there be no conflict in the calls found in the field notes of a survey, there is no room for construction, and the calls must speak for themselves. To permit the introduction of parol evidence to vary the calls would be to violate the familiar rule that extraneous evidence is not permissible to vary a written instrument.”

In Johnson v. Archibald, supra, the same judge said:

“If the calls in a grant when applied to the land correspond with each other, parol evidence is not admissible to vary them by showing that in point of fact they are not the calls of the survey as actually made. But if when so applied they disclose a latent ambiguity — that is to say, if they conflict with each other — then extrinsic evidence may be resorted to in order to determine the conflict and to show the land actually intended to be embraced by the calls of the survey.”

There is in the description before us, but one fixed point from which to begin a survey — the northeast corner of the Hill survey. If the description contained in the deed had expressly provided this as a beginning point and had called for lines running west, south, east, and north, of equal length, that description, when applied to the ground, could have disclosed no latent ambiguity. The only .means given for locating the south and west lines are course and distance. With such a description as that, extrinsic evidence would not have been admissible to show that the lines intended to be established were at a different place from that where course and distance would locate them. Such evidence would violate the rule announced in the cases last cited. The only ground upon which the sufficiency of a description like that here under consideration can be sustained is the conclusive inference that the parties intended that the land described should be bound on all sides by lines of equal length and parallel with those referred to in the deed. If this inference is not to be treated as conclusive, we should have different deeds with precisely the same field notes, except as to the particular corner where the start was to be made, describing lands lying in wholly different forms. What the law supplies in a written instrument is to be treated with as much sanctity as that which the parties have themselves put there. The description in this instance, to be held sufficient, must be regarded as forming a square, with all sides running toward the four cardinal points of the compass and conforming to the north and east boundary lines of the Hill survey. The distance south and west to which the calls should be extended is a mere matter of mathematical calculation. A square block containing 420 acres would be bounded by four sides 1,539.8 varas long.

With that construction of the deed, it appears that Gooch conveyed to the heirs of Anderson King only a part of the land involved in this controversy between Diffie and Wilson. It follows that Diffie has no title to the land claimed by him, and which lies within the limits above referred to. The three-year statute of limitation is not available, because the evidence conclusively shows that this portion had been disposed of by Gooch prior to the execution of the bond for title to Young, under whom Diffie claims. Dixon v. Cruse, 127 S. W. 591; Saxton v. Corbett, 122 S. W. 75; Eliot v. Whitaker, 30 Tex. 411; Allen v. Root, 39 Tex. 589. There is no evidence in the record of any lack of notice on the part of those under whom Diffie claims that would change the rule announced in the cases above cited.

We therefore conclude that the court erred in rendering judgment in Wilson’s favor for all 'of the land in controversy, and in refusing to enter judgment in favor of the appellant, Diffie, for that portion of the Hill survey claimed by him and which lies outside of that Included in the Gooch deed to King. The judgment of the trial court will therefore be reformed and here rendered in accordance with these conclusions; that is, that Wilson recover that portion of the land in controversy included within the limits of a square sufficiently large to contain 420 acres, constructed with the northeast corner of the Hill survey as the starting point, and that Diffie recover all that portion of the land in controversy lying south of the land herein awarded • to Wilson, together with costs of this appeal.

On Motion to Reform Judgment.

The appellant, Diffie, has filed a motion to reform the judgment rendered in this case, so as to award him a recovery of all the land lying south of the south boundary line of the square containing 420 acres as outlined in the original opinion, and extending east to the east boundary line of the Hill survey.

In view of the peculiar character of some of the pleadings in this case, we have had some difficulty in determining just what the form of the judgment to be rendered here should be. The amended original petition of White and Austin, the original plaintiffs, was in part in the form of an action of trespass to try title. 'A part of the land which they described as theirs is included in that claimed by Diffie under his deed. After pleading in the form of an action of trespass to try title, the plaintiffs White and Austin set out other facts at considerable length. They allege that they purchased the land described by them from W. T. Norris in consideration of a stated cash payment and the execution of certain vendor’s lien notes, and that Norris had executed to them a deed containing a general warranty of the title. They further allege that after their purchase, and upon inquiry into the true status of the title, they-found that it was clouded by reason of the adverse claims of the unknown heirs of Anderson King, and unknown heirs of William Gregg, and other parties defendant. After referring to the various answers theretofore filed to former amendments of their original petition, they continue as follows:

“That plaintiffs’ title to the entire premises is threatened by adverse claims set out in answers of all the defendants herein named, and plaintiffs believe and allege that the titles set up and claimed by said defendants are paramount to the title of the plaintiffs, and that plaintiffs will be dispossessed and evicted from said premises.”

Under further averments in the petition a judgment is sought against Norris on his warranty, and a cancellation of the notes executed by White and Austin in consideration of the purchase of the land.

It appears from the language quoted above that these plaintiffs have conceded that their title, to the extent of the conflicts presented in the answers of the parties named as defendants, which includes both Wilson and Diffie, has failed. This, in effect, appears to be an admission that they have not title to that part of the land described in their petition. Whether they intended this to have all the legal effect of an admission of no title may be doubted, in view of the averments first appearing in their amended original petition. But in any event, when we go to the proof we find that the plaintiffs White and Austin have failed to establish a title to that part of the land described as theirs which lies south of'the south boundary line of the square block containing 420 acres and constructed in accordance with the rule announced in the original opinion. The appellant, Diffie, in his pleadings asked no affirmative relief, but merely resists the claim of Wilson and of White and Austin to the extent of the conflicts in their respective claims. We have therefore concluded that, as between White and Austin and Wilson and Dif-fie, the proper judgment to be rendered is that White and Austin and Wilson take nothing by their suits against Diffie as to that portion of the Hill survey described in their pleadings which lies south of the following described line: Beginning at a point on the east boundary line of the Hill survey 1,539.8 varas south of its northeast corner and running thence west parallel with the north boundary line of the Hill survey 1,539.8 varas. That is the effect of the judgment heretofore rendered by this court against Wilson, and of which he has made no complaint. The judgment will therefore be reformed so as to deny any recovery to White and Austin of the lands lying south of the line above referred to.

To the extent of the land lost to White and Austin by this reformation of the judgment the warranty of Norris has failed, and under proper pleadings and proof he might be made to respond for breach to that extent. Norris is á party to this suit, and has filed an answer wliicli does not deny the existence of his warranty and the payment of the consideration set out in the plaintiffs’ petition. But there is before us no proof of the exact amount of the land that will be lost, and we are therefore unable to accurately determine the amount of recovery that should be awarded for the breach of the warranty. As between Norris and the original plaintiffs, White and Austin, the case will be remanded to enable these parties to try the issue of damages resulting from a breach of the warranty. While the testimony shows the consideration paid, it does not show the exact number of acres which the plaintiffs will lose to Diffle, and we deem this the best method of disposing of that controversy, which is a separable one. In all other respects not inconsistent with the judgment as reformed, the judgment of the trial court is affirmed.
      @sx>Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      tí&CRFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    CLEBURNE PEANUT & PRODUCTS CO. v. MISSOURI, K. & T. RY. CO. OF TEXAS.

    (No. 8294.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 22, 1916.
    Rehearing Denied, March 18, 1916.)
    1. Trial &wkey;>85 — Evidence—Objections.
    An assignment, complaining of the overruling of an objection to -the evidence, presents nothing for review, where the evidence was in part admissible.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 222-225; Dee. Dig. &wkey;85.]
    2. Carriers <&wkey;>133 — Carriage of Goods— Actions — Evidence.
    In an action for injuries to a shipment of peanuts, which plaintiff claimed was caused by want of ventilation, evidence that green peanuts, if confined before sufficiently dry, would necessarily be damaged is admissible.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 583-587, 606; Dec. Dig. &wkey;>133.]
    3. Evidence <&wkey;481(3) — Opinion—Carriage op Goods — Actions—Evidence.
    Where plaintiff claimed that a shipment of peanuts was injured because of delay in shipment and confinement in an unventilated car, testimony as to the time for transportation of such freight, not based on the operation of defendant’s trains or the witness’ personal knowledge is incdinpetent.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2251, 2254; Dec. Dig. <&wkey;481(3).]
    4. Evidence &wkey;>542 — Opinion—Carriage op Goods — Actions—Evidence.
    In an action for injuries to a shipment of peanuts, testimony that the peanuts, if in proper condition when shipped, would keep for a longer time than that of the shipment, given by experienced dealers, though not of the locality, is admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2355; Dec. Dig. &wkey;>542.]
    5. Appeal and' Error <&wkey;72S(l) — Assignment op Error — Sufficiency.
    An assignment of error to the exclusion of testimony too vague to show what testimony was excluded cannot be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent Dig. § 3010; Dec. Dig. &wkey;>728(l)J
    6. Appeal and Error <&wkey;1058(2) — Review-Harmless Error.
    The exclusion of testimony already given by the witnesses is harmless.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4195, 4201; Dec. Dig. &wkey;> 1058(¿).]
    7. Evidence &wkey;>538 — Opinion Evidence — Admissibility.
    In an action for injuries to a shipment of peanuts, which it was claimed were confined too long in an unventilated car, testimony that the shipment could be made in a given length of time, if diligently handled, is inadmissible as an expression of opinion.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2348; Dec. Dig. <&wkey;>538.]
    8. Carriers <&wkey;132 — Carriage oe Goods— Actions — Burden of Proof.
    Where a shipper expressly alleged that the goods were in good condition when delivered to the carrier, it has the burden of proving that fact.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 578-582, 605; Dec. Dig. &wkey;132.]
    9. Carriers <&wkey;137 — Carriage of Goods— Actions — Instructions.
    A charge in an action for injuries to a shipment of goods, that the burden of proof was on plaintiff to make out a case is not objectionable, on the theory that when a shipment is delivered in good condition, but arrives damaged, the burden is on the carrier to excuse the injury, the proof not showing without contradiction that the shipment was in good condition when .received, and plaintiff having alleged that it was delivered in good condition, for if the burden on that issue had shifted, such contention should have been presented by an appropriate request.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 594, 595; Dee. Dig. <&wkey;137.]
    10. Pleading <&wkey;127(2) — Admissions—Carriage of Goods.
    Where a shipper of peanuts contended they were damaged because the car furnished could not be ventilated, allegations, in the answer that the shipper was negligent in loading green peanuts into an unventilated car, do not admit that the car was not suitable.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 267; Dec. Dig. &wkey;127(2).]
    11. Appeal and Error <&wkey;1033(5) — Harmless Error — Instructions.
    In an action by a shipper for injuries to a shipment, the giving of numerous charges, declaring that under enumerated circumstances verdict should be for the shipper, but not declaring that a failure of proof would require verdict for the carrier, was not error to plaintiff’s injury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4056; Dec. Dig. <&wkey;> 1033(5); Trial, Cent. Dig. § 587.]
    12. Trial <&wkey;260(l) — Instructions—Refusal.
    The refusal of requests covered by the charges given is not error.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. § 651; Dec. Dig. &wkey;260(l).]
    Appeal from District Court, Johnson County; O. L. Lockett, Judge.
    Action by the Cleburne Peanut & Products Company against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment tor defendant, plaintiff appeals.
    Affirmed.

      S. O. Padelford, of Cleburne, for appellant. J. M. Chambers, of Dallas, and Brown & Uoelsett, of Cleburne, for appellee.

      Application for writ of error pending in Supreme Court.

   DUNKLIN, J.

On November 6, 1913, the Cleburne Peanut & Products Company delivered to the Missouri, Kansas & Texas Railway Company of Texas, at Cleburne, Tex., a carload of peanuts for shipment to St. Jo, Mo. The shipment was made in a closed ear, consigned to brokers, and reached its destination November 12th, and was tendered to the consignee on N'ovember 13th. Prior to the shipment, dealers in St. Jo had contracted to buy the peanuts at certain fixed prices, but, after inspecting them, refused to accept them, claiming as a reason for such refusal that the peanuts were not in a salable condition. Plaintiff then reshipped the peanuts to Kansas City, where they were sold at prices lower than those for which the owner bargained to sell them in St. Jo. The Cleburne Peanut & Products Company instituted this suit for damages alleged to be the difference between the price realized for the peanuts when sold and the price for which they had contracted to sell them at destination. Briefly stated, the grounds of negligence alleged in plaintiff’s petition as the proximate cause of the damages claimed were that the car in which the shipment was made was not a proper ear for that purpose, in that, being a closed ear, the peanuts were not properly ventilated, and thereby became damp and in a moldy condition; that such car was saturated with coal oil, which was absorbed by the peanuts, and that the shipment was unreasonably delayed in reaching its destination. It was further alleged in plaintiff’s petition that the peanuts were in good condition when they were delivered to the railway company in Cleburne, and that by reason of the character of shipment it was the duty of the defendant to handle the same as a preferred or “red ball” freight, to the end that it be more speedily transported than ordinary freight. A trial of the case before a jury resulted in a verdict and judgment in favor of the defendant, from which plaintiff has appealed.

Appellant’s brief contains 95 pages, presenting 44 assignments of error, and is supplemented by an argument 14 pages in length, while appellee’s brief shows 70 pages.

Many objections are urged to the consideration of appellant’s assignments, on the ground that they are violative of the rules prescribed for briefing, several of which, at least, appear to be valid objections. However, as we have examined the assignments and have decided to overrule them on their merits, we shall not undertake to discuss those objections, a discussion of which would necessarily be quite voluminous.

The peanuts in controversy were of the crop of 1913, and one of the defenses urged by the railway company was that they were green, wet, and immature when shipped, and any damages sustained during the shipment were due to that condition, and not due to any negligence on the part of the carrier. It was proven by uneontroverted testimony that if green or wet peanuts are confined in bulk without ventilation for any substantial length of time, they will necessarily heat and mold, and also that if the ground and weather are wet when the peanuts are gathered, it is necessary to dry them before shipment. According to the testimony of plaintiff’s witnesses, these peanuts were purchased from farmers in the fall of 1913, and were in proper condition for shipment when they were loaded into the car. Complaint is made of the introduction of the testimony of several witnesses that they made sales of peanuts to the plaintiff, in the fall of 1913, which were not in good condition for shipment, and of the testimony of other witnesses that certain crops of peanuts, growing in the same vicinity from which plaintiff purchased the shipment in question, were affected by the rains which prevailed during that season, and that if peanuts were confined in bulk while green and before they were sufficiently dried, they will necessarily become damaged thereby. The assignment is presented to the admission of the testimony of all of the witnesses last referred to as a whole. A part of the testimony was clearly admissible, and this would be a sufficient answer to the assignment, even though a part was subject to the objections urged; the principal objection being that the witness did not profess to know anything of the particular peanuts in controversy.

The shipment was by “red ball,” or preferred freight. Plaintiff offered the testimony of C. T. Jackson, to the effect that a preferred, or red ball, shipment of peanuts could be transported from Cleburne to St. Jo in three days. The objection sustained to that testimony was that the witness had not shown sufficient knowledge to qualify him to give such an opinion. The witness testified that he had shipped peanuts from Cleburne to St. Jo and other points for two years, that he had gone with one shipment of cattle, but did not testify that he had gone with any shipment of peanuts made by him, although he knew the time consumed by the shipments from reports made to him by consignees. Nor did he claim that any of the shipments made by him was over the defendant’s line of railway; nor that the conditions under which such shipments were made were similar to the conditions of the shipment in controversy. Eurthermore, while not presented by the objection, the proper inquiry would have been the usual and customary time consumed by such shipments. Under such circumstances, we are unable to say that the court erred in excluding the testimony.

Testimony of a like character from the witness Jackson was excluded on a similar obJection, the only qualification given by that witness being that he had had a wide experience in shipping peanuts, and we overrule the assignment to that ruling for the same reason.

Nor was there error in admitting the testimony of the witness named in the fourth and fifth assignments, in effect that, if peanuts are in proper condition when sacked and shipped, they will keep uninjured for a much longer period of time than that consumed by the shipment in controversy. The witnesses were experienced dealers in peanuts, and the fact that they had never handled peanuts until after they had been shipped north of the Mason & Dixon line might possibly bear upon the weight of such testimony, but would be no reason for rejecting it.

Appellant’s bill of exception No. 7, to the exclusion of testimony, and upon which the sixth assignment is presented, is too confused and vague to show what the testimony was which was offered and excluded, and mentions only one witness, while in the assignment complaint is made of the exclusion of the testimony of three other witnesses also. Furthermore, it appears that the witness named had already testified substantially to the same facts which', according to this assignment, were excluded.

Plaintiff offered in evidence an answer of a witness shown by deposition, in effect that a shipment of peanuts could be made from Cleburne to St. Jo in from three to five days “if diligently handled.” There was no error in excluding the answer, since it was but an opinion of the witness on a mixed question of law and fact; furthermore, neither in the bill of exception, nor in the statement under the assignment, does it appear that the witness had sufficiently qualified to give such opinion; that being the specific objection urged to its introduction. H. & T. C. Ry. v. Roberts, 101 Tex. 418, 108 S. W. 808.

The court submitted plaintiff’s cause of action substantially as alleged in the petition, coupled with the usual charge, in general terms, that the burden was on plaintiff to make out its case by a preponderance of the evidence. Appellant invokes the rule that when it is shown that property of this character is delivered to a carrier in good condition and is transported and delivered to the consignee in a damaged condition, the burden is upon the earner to show that such damage was caused by the act of God or the public enemy, or by the inherent vice of the goods; and it is insisted that the charge violated that rule. The vice of the contention is in assuming as an uncontroverted fact that the peanuts were in good condition when delivered to the carrier at Cleburne, while that issue was sharply controverted by evidence introduced by the defendant. Plaintiff’s entire ease, as pleaded, was based on tire alleged negligence of appellant, and it was expressly alleged that the peanuts were in good condition when delivered to the defendant for shipment. The general rule which places the burden on plaintiff to make out his case by a preponderance of the evidence was applicable. Boswell v. Pannell (Sup.) 180 S. W. 593. And if the burden of proof did shift under any view of the evidence, appellant cannot complain, in the absence of a request for a proper instruction to that effect.

Another assignment is presented to the refusal of a requested instruction that, as the defendant, as well as plaintiff, had pleaded that an unventilated car was unsuitable for the shipment, then the burden was upon defendant to show that damages to the peanuts from heating and molding was due to their inherent nature. The pleading of defendant referred to merely presented the defense of contributory negligence on the part of plaintiff in loading the peanuts, which were green, and hence not in a proper condition for shipment, into a closed car without sufficient ventilation for peanuts in that condition. The effect of the requested instruction was to tell the jury that defendant had, by its pleadings, admitted that the car was unsuitable for the shipment, even though the peanuts were dry and in a proper condition for shipment, which, clearly would have been improper.

Many other assignments of error are urged to the different paragraphs of the court’s charge, in which the different theories upon which plaintiff would be entitled to a verdict were submitted. In none of these instructions were the jury told that a failure of proof of the affirmative of any one or more of those issues would entitle defendant to a verdict. In other words, all those instructions were favorable to plaintiff, and present no affirmative error to plaintiff’s injury, even though it could be said that they did not present every theory upon which a verdict for plaintiff should be returned; and that fact, of itself, is a sufficient answer to all the assignments last referred to. Yellow Pine Lumber Co. v. Noble, 100 Tex. 358, 99 S. W. 1024; Abilene Light & Water Co. v. Robinson, 146 S. W. 1052, and authorities there cited.

The record contains numerous other special instructions requested by plaintiff, and assignments are presented to the refusal of those also. After a careful consideration of all those instructions and the assignments based thereon, we think it sufficient to say that all. material issues contained in such instructions were sufficiently and properly covered by the main charge, and that no reversible error is shown in the court’s refusal to give them.

By other assignments it is insisted that the effect of instructions given in certain paragraphs of the court’s charge was to exclude any • right of recovery upon some of the issues of negligence relied on by plaintiff and supported by proof. We are of the opinion that all the material issues of negligence relied on by plaintiff were presented in the court’s charge, which, when read and considered as a whole, we do not think is subject to the criticism last mentioned.

We are of the opinion, further, that the verdict is not contrary to the law and evidence, as insisted by another assignment.

For the reasons noted, all assignments of error are overruled, and the judgment is affirmed.

       <§=pFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    SEALEY et al. v. MUTUAL LAND CO. et al.

    (No. 8305.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 22, 1916.
    Rehearing Denied March 4, 1916.)
    1. Husband and Wife <&wkey;276(6) — Community Phopbety — Authority to Convey.
    Under Act Aug. 26, 1856, §§ 2, 3, 7 (see 4 Gammel’s Laws, p. 469), making it unnecessary for a surviving wife to administer on the community property of herself and her deceased husband, and authorizing her to manage, control, and dispose of the property as may seem best for the interest of the estate after filing in the county court an inventory and appraisement of all the community property, where an inventory and appraisement of community property were filed with the knowledge and authority of a surviving wife and in her behalf, though it was not signed nor verified by her, but by third parties, it was sufficient to authorize her to convey full title to land constituting part of the community property.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1038, 1039; Dec. Dig. <&wkey;> 276(6).]
    2. Records <&wkey;17(7)— Presumptions —Conveyances.
    Where the records of a county court have been destroyed, it will be presumed, in support of a conveyance by a surviving wife of community property where there has been filed an inventory of the community property not signed by her but by third parties, that the wife made application to the court for the appointment of appraisers and that their appraisement was duly approved by the court.
    [Ed. Note. — For other cases, see Records, Cent. Dig. §§ 33, 43; Dec. Dig. &wkey;17(7).]
    Error from District Court, Tarrant County; R. H. Buck, Judge.
    Action by Joella Sealey and others against the Mutual Land Company and others. Judgment for defendants, and plaintiffs bring error.
    Affirmed.
    M. D. Gano and H. C. Jarrel, both of Dallas, and Lattimore, Cummings, Doyle & Bouldin, of Ft. Worth, for appellants. McLean, Scott & McLean and J. C. Terrell, all of Ft. Worth, for appellees.

      Application for writ of error pending in Supreme Court.

   CONNER, C. J.

Joella Sealey and others, claiming as heirs of Samuel Sealey, deceased, instituted this suit to recover an undivided one-half interest in a tract of land situated in Tarrant county, described as a portion of the Daniel Dulaney survey patented by the state of Texas to E. M. Daggett as assignee. The plaintiffs suffered an adverse judgment in the court below and have prosecuted this writ of error.

The defendants claimed by virtue, of a regular chain of conveyances emanating from and under a deed from Jane C. Sealey, surviving wife of Samuel Sealey, to R. E. Maddox in 1883. The defendants also claimed under the five and ten years’ statute of limitations. Omitting facts unrelated to the question upon which we have based our conclusion, it appears that the survey of which the land in controversy is a part was patented by the state of Texas to E. M. Daggett in May,' 1856; that thereafter, on the 23d day of January, 1863, E. M. Daggett by deed duly executed conveyed said land to David Wiggins; that thereafter, on the 12th day of April, 1867, David Wiggins and wife, Marry Wiggins, by deed duly executed, conveyed said land to Samuel Sealey. Samuel Sealey died intestate in Tarrant county on March 11, 1869, leaving as his sole heirs and survivors the plaintiffs in this case and his wife, Jane 0. Sealey. The following inventory and appraisement was offered in behalf of the defendants, and it is admitted that the land therein referred to includes the land in controversy, viz.:

“Inventory and appraisement of the community property of Sam Sealey, deceased, and Jane O. Sealey, his surviving wife, there being no individual property belonging to either of them.
540 acres of land at $2.75 per acre.. $1,485.00 14 yoke of work oxen, yokes and chains, $40.00 . 560.00
1 iron axle wagon. 100.00
2 wooden axle wagons, $75 each.... 150.00
1 buggy and harness. 100.00
18 head stock cattle, $5 each. 90.00
1 mule. 65.00
1 mare and yearling colt. 65.00
1 gray mare, old. 20.00
Household and kitchen furniture.... 200.ÓO
“State of Texas, County of Tarrant.
“Personally appeared before me, the undersigned authority, W. F. Adams and F. L. Hartman, who, being duly sworn by me, says that the foregoing is a true and correct appraisement of all the property exhibited to us by Jane Sealey, surviving wife of Sam Sealey, deceased.
“W. F. Adams.
“F. L. Hartman.
“Sworn and subscribed to before me this the 29th day of May, 1869.
“A. G. Walker, Go. Oik.,
“By H. A. Powell, Deputy.”
This instrument was indorsed:
“Sam Sealey, deceased. Estate of Inventory and Appraisement. Filed June 2nd, 1869. Examined and approved, B. F. Barkley, JOCTCT.”

The deed from Jane O. Sealey to R. E. Maddox, under whom the defendants claim, purported to convey the entire interest in the land therein described, including that in controversy, and the foregoing inventory and appraisement was offered by the defendants in error to show the qualification of Jane O. Sealey, as the community survivor, to convey frill title as she purported to do in the deed to Maddox. It is admitted that:

“If Mrs. Sealey was duly qualified as survivor ■of the community estate of herself and deceased husband, this deed (the deed to Maddox) conveyed the title to the land in controversy, and •defendants, who deraigned title through R. E. Maddox, are entitled to judgment.”

The court admitted the inventory over objection of plaintiffs in error to be hereinafter indicated, and, among other special issues, submitted to the jury the following:

“Did Mrs. Jane Sealey, surviving widow of Samuel Sealey, file the instrument purporting to be an inventory and appraisement of the community estate of herself and deceased husband, Samuel Sealey, and purporting to be signed by W. E. Adams and E. L. Hartman, as appraisers?”

To which the jury answered:

“Mrs. Jane Sealey did not personally file, but authorized to be filed, the inventory.”

It is thus seen that the question of whether Jane C. Sealey was qualified to act as the community survivor in the disposition of the community property of herself and Samuel Sealey, deceased, is a vital one, irrespective of questions relating to the issues of five and ten years’ limitation under which the defendants in error also claim, and we will now address ourselves to the solution of the vital question so presented.

It was shown that the courthouse in Tar-rant county and the records were destroyed by fire on March 29, 1876, with the single exception of “Book G” of the probate minutes, from which the inventory and appraisement in question was copied. It was also shown that W. F. Adams and F. L. Hartman, who subscribed to the inventory and ap-praisement, were, at the time of Samuel Sealey’s death, near neighbors and confidential friends of the family; that on the 19th day of August, 1873, Jane O. Sealey conveyed to Wiley Harris a portion ■ of the Daniel Dulaney survey, which conveyance recites:

“That I, Jane 0. Sealey, surviving widow of Samuel Sealey, deceased, having filed an inventory in accordance to law, for and in consideration of eleven hundred and eighty dollars gold paid to me by Wiley Harris,” etc.

This deed was duly acknowledged before the proper clerk of Tarrant county, who certified that Jane O. Sealey was well known to him and that she appeared before him and acknowledged that she “signed, executed and delivered said deed for the purposes and consideration therein stated.” Plaintiffs in error objected to the inventory, and here contend that it was void and unavailing for the purposes for which it was offered, because:

“(1) That said inventory and appraisement was not prepared and filed 'by the said Jane Sealey. (2) That said inventory and appraisement was in fact prepared and filed by W. F. Adams and F. D. Hartman, parties unknown so far as the records disclose. (3) That said Jane Sealey was not a party to said record, or to the preparation -and filing of said inventory and appraisement. (4) That the court has had no supervision over the person of said Jane Sealey by virtue of which the preparation and filing of said inventory could have vested in her any authority to dispose of the property of the com-munis estate of herself and deceased husband.”

We are of opinion, however, that the evidence supports the jury’s conclusion that the inventory and appraisement were filed with her knowledge and authority and in her behalf, and that it was recognized by the proper probate officer as the inventory of Jane C. Sealey, and that as such the inventory was properly admitted in evidence, and is sufficient to support the contention of the defendants in error that thereby Jane C. Sealey was authorized to convey to R. E. Maddox full title to the land in controversy as she purported to do in 1883. The controlling statutes in force at the time relating to the subject are to be found in an act of the Legislature of Texas approved August 26, 1856, entitled, “An act supplementary to the act of March 13, 1848, entitled, ‘An act better defining the marital rights of parties.’ ” See Gammel’s Laws of Texas, vol. 4, p. 469. So far as here necessary to quote, sections 2 and 3 of the act referred to read:

“Sec. 2 That it shall not be necessary for any surviving husband to administer upon the community property of himself and liis deceased wife, but he shall have the exclusive management, control and disposition of the same after her death in the same manner as during her . life subject to the provisions of this act.
“Sec. 3. That it shall be the duty of the surviving husband at the death of his wife, if she have a surviving child, or children, to file in the county court a full, fair and complete inventory and appraisement of all the community property of himself and deceased wife, to be taken and recorded as in cases of administration, and to have the same force and effect in all suits between par-ties claiming under it. After which, without any administration or further action whatever in the probate court, he shall have the right to manage, control and dispose of said community property both real and personal, in such manner as to him may seem best for the interest of said estate, and of suing and being sued with regard to the same, in the same manner as during the life of his wife. * * * ”

Section 7 of the act, so far as necessary to quote, provides:

“That .the surviving wife may retain the exclusive management and control of the community property of herself and her deceased husband, in the same manner, and subject to the same rights, rules and regulations, as provided in the foregoing provisions of this act. * * * ”

The act further provides that the survivor so filing an inventory shall keep fair and full accounts of all exchanges, sales, and other disposition of the community property, and upon final partition shall account to the legal heirs for their interest in the community property and in the increase and proceeds of the same. It also provides that, if the survivor should fail or refuse to file an inventory as required by the provisions of this act, the county court, upon complaint made, might require it done, or otherwise grant administration upon the estate. The act further provides that if it should appear to the court as in any way necessary for the protection of the property belonging to the state, or should any of the heirs make proper complaint of mismanagement or waste, that the court might require bond and se-curtty of tlie survivor for the proper management of the property, etc.

Of this act it was said by our Supreme Court in Cordier v. Cage, 44 Tex. 532:

“The act of 1856 was intended and designed by the Legislature to afford an easy and speedy mode of managing and controlling community estates, and to allow a survivor to manage, sell, or dispose of it, relieved of the trammels thrown around such estates prior to that time, and that it was entitled to a liberal construction.”

It will be noted that there is nothing in the statute as quoted which specifically requires the inventory and appraisement to be signed or sworn to by the survivor in person, and an inventory and appraisement wanting in these particulars was expressly upheld in the case of Green v. Grissom, 53 Tex. 432. The inventory and appraisement in that case was made by E. M. Brock and J. N. George, who had been appointed by the court' as appraisers and who made a verified statement that it was a true and correct inventory of the property belonging to the estate so far as the same had come to their knowledge. So, in the case of Long v. Walker, 47 Tex. 173, an inventory not including certain lots there in controversy was in effect upheld; the failure mentioned being referred to as an irregularity that might have been corrected upon complaint of those interested. And in the ease of Withrow v. Adams, reported in 4 Tex. Civ. App. 438, 23 S. W. 437, in which a writ of error was refused by our Supreme Court (29 S. W. xxi), our Court of Appeals for the Third District held that the facts that an inventory of community property filed in the probate court by the surviving wife did not in terms purport to be an inventory of all of the community property, and that it was not filed and sworn to by her, were not sufficient to invalidate the sale of community property by her.

Plaintiffs in error insist, however, that it appeared in the case of Green v. Grissom, supra, that Mrs. Grissom made application in open court to file an inventory and have the property appraised under the provisions of the statute, and that the court appointed appraisers who returned an inventory that was accepted by the court. The contention is, in substance, that the court was thus given jurisdiction over the person of the survivor, and that hence the omission of the survivor to in person sign the inventory was not fatal. It is true that in the case before us it was not made to appear that Mrs. Jane Sealey made an application to the court, but it is to be remembered that the probate records of Tarrant county, with the exception stated, were burned, and, if necessary to our final conclusion, we do not think it an unreasonable presumption that in this case Mrs. Sealey made the proper application, which has been destroyed, for the appointment of appraisers; for it cannot be disputed that an inventory and appraisement of the community property Samuel Sealey, deceased, was duly presented and sworn to before a clerk of the county court by persons who purported to so act in a most formal manner, and whose action in so presenting the inventory seems to have been formally approved by the presiding judge of the proper court. The evidence fails to present a suggestion that either Adams or Harman could personally profit in this transaction, or that there was fraud or collusion of any character to indicate the action on their part. Moreover, as already mentioned, soon thereafter Jane G. Sealey executed a deed to Wiley Harris, in which she solemnly declared, in substance, that she had filed an inventory of the community estate of herself and deceased husband, and nothing in the record suggests that this declaration could have referred to any other inventory than the one now under consideration. It also appears that from the time of the execution of the deed by Jane O. Sealey to R. E. Maddox, until about the time of the institution of this suit in 1911, neither Jane O. Sealey, nor any of the plaintiffs in error, paid taxes upon, or otherwise claimed, the land in controversy. So that, on the whole, we conclude that under the circumstances of this case, after the lapse of 40 years from the date of Jane G. Sealey’s deed to R. E. Maddox, we must uphold the judgment of the court below in behalf of the defendants in error, on the ground that, before making the deed to R. H. Maddox conveying the entire interest in the land in controversy, Jane O. Sealey had duly qualified herself to so do under the act of 1856.

Affirmed.

BUCK, J., not sitting.
      <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKBIN, J.

text:
    FT. WORTH & D. C. RY. CO. v. HAPGOOD.
    (No. 8331.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 19, 1916.
    On Rehearing, March 25, 1916.)
    1. RAILEOADS <&wkey;461 — FlP.ES—CONTRIBUTORY Negligence.
    Plaintiff’s refusal of permission to a rail-road to burn necessary fireguards on Ms land, except on condition that the railroad pay in advance for the grass consumed, is, if such condition is unreasonable under the circumstances, contributory negligence barring recovery against the railroad for burning his land.
    [Ed. Note. — For other cases, see Railroads, Gent. Dig. § 1682; Dec. Dig. &wkey;>461.]
    2. Evidence &wkey;>142(4) — Similar Facts — Value.
    It is improper, in a suit for damages to grass, to allow a witness to testify that the grass “was above an average for Olay county,” over the objection that it is improper to describe the grass by comparison with other grass the quality of which is foreign to any issue in the suit.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 426; Dec. Dig. &wkey;>142(4).]

      8. Appeaí and Error <&wkey;1050(l) — Harmless Error — Qualification op Witness.
    The admission of testimony that land has depreciated $2 per acre by being- burned, over the objection that the witness had answered that he had never known of the sale of land after being burned over, but based his opinion upon the estimated value of the grass, where the. witness qualified sufficiently to give an opinion of the value of the grass destroyed, which he estimated at $2 per acre, is harmless.
    [Ed. Note. — -For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4158, 4157; Dee. Dig. &wkey;1050(l).]
    4. Evidence t&wkey;142(4) — Relevancy—Value op Other Property.
    In an action for damages to land, it is not error to exclude evidence of the leasing value of adjoining land, where it is not proved that the grass on such land is of as good quality as the grass on plaintiff’s land.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 420; Dec. Dig. <&wkey;> 142(4).]
    5. Trial <&wkey;350(2) — Special Interrogatories — Evidentiary Facts.
    Requested special issues, embodying inquiries as to mere matters of evidence bearing upon the issues to be determined, are properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828, 832; Dec. Dig. &wkey;350(2).]
    Appeal from District Court, Clay County; J. W. Akin, Judge.
    Action by K. N. Hapgood against the Ft. Worth & Denver City Railway Company. From judgment for the plaintiff, defendant appeals.
    Reversed and remanded.
    Thompson & Barwise, of Ft. Worth, and Arnold' & Taylor, of Henrietta, for appellant. W. T. Allen and Wantland & Parrish, all of Henrietta, for appellee.
   DUNKBIN, J.

K. N. Hapgood and wife owned a tract of land adjacent to the right of way of the Ft. Worth & Denver City Railway Company. The land was covered with a growth of grass suitable for hay and for grazing. During the months of June and July of the year 1914, seven fires occurred which consumed the grass on different portions of the tract at different times, the land so burned over aggregating 628% acres.

The owners of the land instituted this suit against the railway company to recover damages for the destruction of the grass and injury to the turf, it being alleged in plaintiffs’ petition that the fires which destroyed the grass originated through the negligence of the railway company in using faulty appliances and spark arresters upon its locomotives, on account of which cinders escaped and ignited the grass and other combustible matter which the defendant had negligently permitted to accumulate on its right of way, and from there spread to and burned over plaintiffs’ land.

It was further alleged in the petition that the railway company was guilty of negligence in failing to bum fireguards for a width of about 200 feet on each side of its right of way, as for a number of years it had been in the habit of doing, so that fires starting in weeds and dry grass upon defendant’s right of way would not spread to plaintiffs’ laud.

From a judgment rendered in plaintiffs’ favor for the sum of $1,876.50, the defendant has appealed.

One of the special defenses pleaded by the defendant consisted in allegations that, before any of the fires occurred, the defendant applied to. plaintiffs for permission to burn fireguards on plaintiffs’ land adjacent to defendant’s right of way and adjacent to the land that was afterwards burned, informing plaintiffs at the time of the danger of fire spreading upon said land, and offering to pay them for the grass so burned as a fireguard as soon as the area of the same could be measured and the number of acres burned ascertained; but that plaintiffs refused said request, unless defendant would pay them for the grass on said fireguard in advance and before the same was burned. It was further alleged in said plea that plaintiffs well knew the danger incident to the destruction of their grass if fireguards were not so burned, and well knew that the burning of the fireguards would protect their premises from fire, and that the absence of such fireguards greatly endangered their property, which was afterward burned. It was further alleged that by reason of such failure on the part of the plaintiffs to permit the defendant to burn said fireguards, as it requested permission to do and would have done but for such refusal, the plaintiffs were guilty of negligence proximately contributing to the damages sustained by them, and for which they sued, and hence they were not entitled to recover.

The plaintiffs addressed a general demurrer to the plea of contributory negligence in the following language:

“The plaintiff demurs to the defendant’s plea of contributory negligence as set out in the thirteenth paragraph of its answer herein, and says the same is insufficient in law, and shows no defense to the plaintiff’s cause of action herein, and prays that said paragraph be stricken from said answer.”

That demurrer was sustained, and to the action of the court in striking out the plea the defendant has assigned error.

We are of the opinion that the assignment should be sustained upon the authority of the recent decision of our Supreme Court in St. L. S. W. Ry. Co. of Texas v. Arey, 179 S. W. 860, and other decisions therein cited, chiefly the decisions of Martin, Wise & Fitzhugh v. T. & P. Ry. Co., 87 Tex. 117, 26 S. W. 1052, and T. & P. Ry. Co. v. Levi, 59 Tex. 674.

The ease of Railway Co. v. Arey, supra, was a suit by Arey, the plaintiff, for the destruction by fire of his barn. The fire was caused by sparks from a passing engine which were blown through a window facing the right of way and which plaintiff had left open. The railway company pleaded contributory negligence on the part of the plaintiff, in thus leaving the window of the barn open with an accumulation of combustible matter exposed to sparlrs that might emanate from the railway company’s locomotives in passing and through which the fire which destroyed the barn originated. Our Supreme Court held that the submission of the defense of contributory negligence so pleaded was proper, and in that opinion used the following language:

“It is not a question of the lawful use by an owner of his premises. It is a question of his negligent use of them, and the legal consequence of such use when it is directly responsible, in whole or in part, for injury to the owner’s property. If others, in the lawful use of their property, are required to exercise ordinary care to prevent its negligent injury or destruction, what is there in the situation of an owner or lessee of premises like these that creates for him a different rule? It clearly does not lie in the fact that his use of the premises is lawful. Nor does it rest in the maxim that no one is hound to anticipate another’s negligence; for that is a principle of general application. No other ground for the distinction is advanced in the authorities which affirm the proposition. It is not believed that any other can.be urged; and neither ground in our opinion is sound.”

The cases of Railway Co. v. Levi and Martin, Wise & Fitzhugh v. Railway Co., supra, were suits for the loss of cotton stored in close proximity to the railway tracks, and burned by sparks which escaped from locomotives, and in each of those cases it was held that the defense of contributory negligence on the part of the owner in thus exposing his cotton to fire from that source was available.

In the Arey Case our Supreme Court expressly refused to follow the decision of our United States Supreme Court in Le Roy Fibre Co. v. Railway Co., 232 U. S. 340, 34 Sup. Ct. 415, 58 L. Ed. 631, cited by the ap-pellee, and in effect overrules all other Texas decisions relied on by the appellee.

In each of the three cases by our Supreme Court cited above, it was held, in effect, that if a person of ordinary prudence could and should have anticipated that 'the railway company probably would, through its negligence or otherwise, permit sparks to escape from its locomotives and set fire to property of the character and located as was plaintiff’s property, then the plaintiff owed the duty to exercise ordinary care in advance of such negligence to avoid injury therefrom. And why not? It is a well-settled rule of common law that a person of ordinary prudence owes the duty to exercise ordinary care to avoid injury from an act or omission of another amounting to negligence, when he is apprised of such act or omission. Upon reason and principle, why should he be excused from the exercise in advance of like precautions to avoid injury from negligence which a person of ordinary prudence would foresee as probable and the consequences of which he would endeavor to avoid? A different rule would encourage a willful exposure to danger which even the slightest prudence would avoid and would be contrary to sound public policy. Tested by the common experience of men, no one of ordinary prudence, when confronted with an impending danger to his person or property, will do less to avoid its probable consequences because of the fact that such danger is brought about by the negligence of some one else.

As alleged by plaintiffs in their pleadings and shown by the evidence, seven fires occurred within two months, thus tending to show perhaps unusual dangers to their property, and furnishing cogent reasons for the application of the doctrine announced in the decisions of our Supreme Court cited above.

While it is true, as appellees insist, the facts of the present case were different from those of the other cases discussed above, yet we do not believe that such difference in the facts avoids the controlling effect of those decisions upon the question now under discussion. Appellees insist that plaintiffs had the legal right to demand payment for the grass proposed to be burned as a fireguard in advance of such burning, and that it would be unreasonable to require them to wait for such compensation until after the fireguard was burned. Even though it should be said that under ordinary circumstances a person has the legal right to exact payment for his property in advance before the same is appropriated by some other person, we do not think that such a conclusion would preclude the defendant’s right to the defense pleaded. According to the defendant’s plea, which must be accepted as stating the facts truly, the railway company offered to pay for the grass as soon as it was burned and the number of acres burned could be ascertained. As a matter of law, this offer included the implied obligation to pay the reasonable value of such grass, and it was a proper question for the jury to determine whether or not a person of ordinary prudence would, under all the circumstances, have accepted that offer rather than incur the risk of losses which might reasonably be expected to occur if such fireguard was not burned off.

A number of other assignments are presented to the admission of testimony of various witnesses tending to show the value of the grass burned and depreciation in the value of the land by reason of injury to the turf or roots of the grass, over defendant’s objection that the witnesses had not shown themselves sufficiently qualified to give their opinions on such issues. Except as hereinafter noticed, we shall not undertake to discuss each one of the assignments in detail, as we think it is a sufficient answer to say that we have carefully examined the assignments, and are of the opinion that such objections were properly overruled, as we'find in the testimony of the respective witnesses a sufficient qualification, prima facie at least, to make such opinion admissible.

We are of the opinion, however, that it was improper to allow tlie witness L. R. Hamm to testify that the grass burned “was above an average for Olay county,” over the objection that it was improper to describe the grass by comparison with other grass, the quality of which was foreign to any issue in the present suit.

And in this connection we deem it proper to notice also the objection made to the testimony of R. J. Brown for the plaintiffs that the land was depreciated in value $2 per acre by reason of the fire. The objection to this testimony was that the witness had answered that he had never known of the sale of land after it was burned over, but based his opinion with respect to the depredation testified to by him upon what the witness estimated the grass to be worth. The witness did, however, sufficiently qualify to give an opinion of the value of the grass that was destroyed, which he estimated to be $2 per acre; and while perhaps the objection addressed to the question as to how much the land was depreciated in value was, strictly speaking, a valid one, yet we are of the opinion that, in view of the further testimony of the witness that he based the opinion given in answer to that question upon his knowledge of the value of grass Which he placed at $2 per acre, the error was, at all events, harmless.

The defendant proposed to prove by plaintiffs’ witness R. J. Brown, upon cross-examination, that Sid Webb was leasing other land adjoining plaintiffs’ land for 50 cents per acre per year. The plaintiffs objected to the question and answer upon the ground that it was irrelevant, and the court sustained the objection. It does not appear in the bill of exception that the defendant could have proved that the grass on the land so leased by Webb was of a quality as good as the grass in controversy. Hence no reversible error is shown by the ruling, even though it should be held that this one transaction would be admissible on the issue of the market value of plaintiffs’ grass.

Appellant also complains of the refusal of the court to submit to the jury three special issues requested by it, two of which consisted of an inquiry as to what per cent of the land burned over had been reset with grass at the time of the trial, and the other how long were the plaintiffs deprived of the use of the grass by reason of the fires. All of those inquiries related to mere matters of evidence bearing upon the controlling issues to be determined by the jury, and were therefore properly refused.

Por the reasons noted the judgment is reversed and the cause remanded.

On Rehearing.

In their motion for rehearing appellees insist with much earnestness that we erred in our opinion upon original hearing that the appellant’s special plea of contributory negligence presented a valid defense to the suit. In our former opinion it was stated that one of the grounds of negligence relied upon by the plaintiffs was the failure of the defendant company “to burn fireguards for a width of about 200 feet on each side of its right of way, as for a number of years it had been in the habit of doing, so that fire starting in weeds and dry grass upon defendant’s right of way would not spread to plaintiffs' land.” That allegation of negligence was contained in plaintiffs’ original petition, but was not embodied in the amended petition upon which the case was tried, and hence was not relied upon by the plaintiffs upon the trial of the suit. The original petition, as well as the amended petition, were contained in the record, and through inadvertence we referred to the original petition rather than the amended one, and the reference to that issue in the original opinion is now withdrawn.

Appellees have cited a great array of authorities from numerous states, as well as from our own state, announcing the general rule that it is not incumbent upon any one to anticipate the negligence of another which may probably result in his injury, and specifically that an owner of land adjoining a railroad right of way has the right to subject it to any lawful use he may see proper, and cannot be held guilty of contributory negligence in permitting combustible material to accumulate on his premises which is ignited through the negligence of the railway company in the operation of its trains. Appellant insists that many of those decisions, when properly understood, are not in conflict with the decision in the Arey Case. We shall not undertake to discuss them, for however that may be, the decision in the Arey Case is unquestionably binding upon us, and we think of controlling effect in the present suit:

Appellees insist, further, that the facts of the present suit differ materially from those in the Arey Case, and that hence the decision in the Arey Case should not be given controlling effect here. It is true that the facts are different, but we are of the opinion that the underlying principle is the same in the two cases.

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

      <S=x>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J. WADTHADL, J.

text:
    NEWMAN et al. v. DAVIS.
    (No. 514.)
    (Court of Civil Appeals of Texas. El Paso.
    March 16, 1916.
    Rehearing Denied April 6, 1916.)
    1. Public Lanijs &wkey;>175(5) — Hands of States. ^■PmoKiTy of Location.
    Where a location of public lands is fixed by actual survey upon the ground, being the first or eldest in location, the lines so fixed upon the ground control.
    [Ed. Note. — For other cases, see Public Lands*. Cent. Dig. §§ 565, 566; Dec. Dig. <&wkey;>175(5).l ..

      2. Appeal and Error <&wkey;1002 — Review — Verdict on Conflicting Evidence.
    A verdict on conflicting evidence will not be disturbed.
    [Ed. Note. — Eor other eases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. <§=> :1002.]
    Walthall, J., dissenting.
    Appeal from District Court, El Paso Coun.ty; P. R. Price, Judge.
    Suit by Lamar Davis against C. M. Newman and others. Erom a judgment for plaintiff, defendants appeal.
    Affirmed.
    A. G. Poster, Jno. L. Dyer, and T. A. Fal-vey, all of El Paso, for appellants. Winter, McBroom & Scott, of El Paso, for appellee.
   HARPER, C. J.

Appellee filed this suit against appellants in trespass to try title to survey No. 7, Texas & Pacific Railway Company, describing same by metes and bounds. Appellants disclaimed as to all that part of No. 7 lying north or northerly of the south or southerly line of said survey by the survey and map of Hardaway; and under a description by metes and bounds of surveys 72 to 78 and 82, by cross-action, asked judgment for all of said last-named surveys. Ap-pellees, by supplemental petition, disclaimed as to all sections named, except 77. The case was submitted to a jury upon special issues. A verdict was returned upon which judgment was entered for appellees, plaintiffs below, from which this appeal is perfected.

The parties filed an agreement in writing which contained, among other things, the following stipulation:

“It is agreed that the controversy in reference to the lands and premises herein involved is one of boundary, and the true boundary lines between the lands of plaintiffs and the defendants and the location thereof is in controversy, and that wherever the boundary line may be located that the plaintiffs will be entitled respectively to all the lands claimed by them lying northeast of such boundary lines, and that the defendants, as to the lands claimed by them, shall be entitled to the lands lying southwest of such boundary line; * * * the only issue being the location •of the true boundary line and dividing line between the lands of plaintiffs and defendants.”

In 1858, J. A. Tivey located by actual survey upon the ground surveys numbered 53 to 114, inclusive. Beginning at a ¡point upon the Rio Grande, No. 53 was located upon the ground by definite corners, and then survey No. 54 was located and tied onto 53 on the southeast, and each, in turn, in their numerical order, were located in the same manner, running southeast along the Rio Grande for the southern boundary line of at least a portion of each survey. A plat of said surveys was made and filed in the General Land Office of Texas and the same were patented from time to time up to the last, about 1873.

In 1870, Jacob Keuehler, deputy surveyor for the Texas & Pacific Railway Company, located surveys 1 to 11, block A, inclusive, upon the north of said Tivey surveys beginning with east line of survey No. 57, west corner of No. 58, and then so located the south line of each as to join onto and make the north lines of the Tivey surveys the south lines of the said Texas & Pacific surveys down to and including Tivey survey No. 77, as shown by the following plat:

As will appear from the above statement, the Tivey surveys being the first or eldest in location, their north line as fixed upon the ground would control. Several resurveys have been made of said lands with a view of tracing the footsteps of Tivey in the original survey. Some of. said surveyors by their maps and plats and testimony place the Tivey line, as run by him, between survey 7, Texas & Pacific, and 77; Tivey, where plaintiffs claim it to be; and others, where defendants claim it to be. Appellants contend for the line as found by and delineated upon the map of one Hardaway, surveyor appointed by the court, and appellees contend for the line of surveyor Harris’ map, etc. The verdict and judgment is based upon question No. 1, which is as follows:

“Do you find from a preponderance of the evidence that the northern boundary line of said survey No. 77, as surveyed on the ground by J. A. Tivey, is coincident with or south of the northern boundary of said survey as located and marked by Murray Harris, and delineated on the map of the said Harris introduced in evidence? Answer: Yes.”

Appellants urge by assignments 1 and 2 that the verdict and judgment for plaintiff, appellee here, is against the great weight and preponderance of the evidence and' for that reason should be reversed and remanded for a new trial. ,

Appellants submit many propositions under these assignments which are in line with the rules of law, but the sole question for this court to determine is: Erom the evidence in this record favorable to appellees, could the jury, in an honest and impartial effort to arrive at the truth, have reached the conclusion expressed by their verdict? If so, then we cannot set it aside.

There are more than 300 pages of typewritten matter in the statement of facts, and appellants, under the two first assignments, urge 30 propositions. To answer them in detail by reference to the evidence in the record would extend this opinion to an unreasonable length, and, in fact, take our time to no good purpose. We have carefully read the record in respect to all of appellant’s contentions, and have reached the conclusion that there is no such lack of preponderance of the evidence in favor of the appellee as to justify us in reversing this case.

To illustrate how the questions of fact raised by appellants, upon which they rely to reverse this case, are met, or offset by the evidence in favor of appellees, let us discuss what we consider the strongest or most forceful proposition urged here by them, viz.:

“That the artificial objects cabed for in the field notes of surveys 53 and So and 86 and 110%, lying in proper position, according to the field notes of all the surveys in their order, correctly show the location of all said surveys from 53 to 110%, inclusive, without dispute.”

The first object relied upon is the old stage road called for in the Tivey field notes to No. 53 and survey No. 110%, as made in 1858. The contention is that the line running north and south between 52 and 53 is agreed upon, that the call for this line fixed this old road at 520 varas from the river, and that this point is practically agreed upon. Now, if this be so, and we can here hold that as a matter of fact the northwest or northeast corner of 53 is fixed by natural objects or by agreement, and that, by running the north line' of the Tivey surveys on the ground from this point to points about which there is no question as to their location, the Hardaway line is established beyond question, then this case should be reversed and rendered; but what do we find in relation to the road in question and the other points claimed to be established unquestionably? We find that witnesses for both parties testify that the original stage road of 1858 has been washed away, in 1875, or at some other date fixed by witnesses. Harris, upon whose testimony and map the verdict must have been based, testified that there were several old roads in and about the same place; that the designated “old road” upon his map was not fixed. The testimony of some of the witnesses shows that they had not been upon the ground for many years, and there are other facts in evidence which justify the jury in their refusal to accept the evidence as to the exact starting point of the surveys of Tivey, as being as contended for by appellants.

And the same conflict of testimony appears as to each and every one of the points in the evidence relied upon by appellants to substantiate their claim that the preponderance of the evidence is not in favor of the verdict. So we could continue on and show the conflict of evidence upon the points urged by appellants to be uneontradicted; but, in each case, we find the evidence to be equally conflicting, so we conclude that the verdict of the jury has sufficient evidence to support it.

The third assignment is:

“The court erred in rendering judgment in favor of plaintiff herein for the land sued for by plaintiff herein, because in the pleadings of plaintiff herein no reference is had or made to the map made by Murray Harris, and the findings of the jury in this case did not identify the line found by them in relation to the land sued for by the plaintiff herein, and it is impossible for the court to determine or say that the line as established by Harris covers, coincides with, or is coincident with any line of the land described in plaintiff’s petition, and, in entering judgment on the findings of the jury, the court erred and assumed that the Harris land was coincident with the south line or any other lino of the land called for by the plaintiff herein, and described by plaintiff in his petition, and for that reason and for such reason the judgment entered herein should be set aside and a new trial be ordered herein and the findings of the jury be disregarded.”

The answer is that plaintiff sued for survey No. 7, Texas & Pacific survey, by metes and bounds, and there is sufficient evidence in the record to show that the land described by plaintiffs in their petition is the same as that incorporated within the lines between the Hardaway and Harris surveys; in other words, to prove that the lands in controversy were the lands belonging to survey No. 7, Texas & Pacific, as pleaded by appellees.

Finding no error in the record, the cause is affirmed.

WADTHADL, J.

(dissenting). I do not concur in the opinion expressed by the majority members of this court in this case.

There appears to be no dispute as to the icorrectness of the Hardaway survey and map filed by him in his location of Tivey surveys from No. 53, down to and including survey No. 58. The conflict in the surveys involved in this suit, it seems to me, can be traced to the beginning point fixed for Texas & Pacific survey No. 1. Surveys 57 and 58 were located on the ground and patents issued for them long before any of the Texas & Pacific surveys were made. No. 58 was located according to the calls made by Tivey in his original survey of No. 57. Tays, in his resurvey of 57, began his survey of 57 at the same common river corner -of 56 and 57, and called for the same natural objects. From that common point, both Tivey and Tays have the same calls for cburse, distance, and calls for other surveys up to where they both reached the east or northeast corner of survey No. 57. Tivey, in running his line from the northeast corner of 57 to the river for a corner, calls for a distance of 697 varas. From that river corner Tivey meandered the river to the common river corner for 56 and 57 as used by both Tivey and Tays. Survey 58 was patented on the field notes made by Tivey which tied onto 57. These two surveys were made by Tivey at the same time. In making survey 58, Tivey began at the lower river corner of 57, and ran his line for 58 on the same course (45° E.) S33 varas, thus placing the northwest comer of 58, 186 va-ras farther to the north than 57 was fixed by both Tivey and Tays. Tays, in making his resurvey of 57, coincides with all of the calls, courses, and distances and ties onto all of the Tivey surveys on their northern boundaries back to survey 52. There is only one difference between the resurvey of 57 made by Tays and the original survey made by Tivey. Tays makes the northeasterly stem of 57 from its northeast corner to the river 1,337 varas as against Tiv-ey’s distance of '697 varas; that is, gave that stump of 57 a greater length by 640 varas. Tays’ resurvey was made 15 years after Tivey had located 57 on the ground. In other words, in running the northeast line of 57 fifteen years after the original survey was made, he ran 'that distance to reach the river as it then was. There was no resurvey made by Tays of 58. The relative positions of 57 and 58 are shown by the records both in the county surveyor’s office and by the map of said surveys made by Tivey and filed in the land office at Austin, and by Tays’ map in his resurvey of 57, both in the surveyor’s office and in the land office. These surveys and maps show the northerly boundary of survey 58 to be north of north boundary of 57.

In locating Texas & Pacific survey No. 1, it calls to begin “at a stake and mound set on the east line of survey No. 57, for the west corner of 58.” The field notes do not show how far below the northeast comer of survey 57 the beginning corner of Texas & Pacific survey No. 1 starts; but Mr. Harris’ evidence shows it to be 640 varas. That is, the survey- or, in locating Texas & Pacific survey No. 1, pulls survey 58 down on easterly line of 57, a distance of 776 varas, and calls that point the “west corner of survey 58.” With that point as a beginning corner for Texas & Pacific survey No. 1, it would necessarily carry a conflict and cause a lapping over onto the Subsequent Tivey surveys by the subsequent Texas & Pacific surveys until Texas & Pacific survey No. 7 and Tivey survey No. 77 are reached. If that view is sustained by the undisputed evidence, the Harris south line for Texas & Pacific survey 7 is too far south by 776 varas. To make the south line of Texas & Pacific survey No. 7 and the north line of Tivey survey 77 coincident, the Harris line should be further north the width of the conflict; that is, 776 varas.

I have found no authority in the evidence for the beginning corner of Texas & Pacific survey No. 1, and I am of the opinion that none can be found. The Tays resurvey of 57 in no wise changes the north boundary line of 57. It cannot be claimed that the resurvey of 57 by Tays could in any way change the original location of 58. The original locations of these surveys were accepted by the General Land Office, and the lands covered by the field notes and patents were removed from subsequent locations. The evidence does not show a cancellation of any of the Tivey surveys, nor any' change of location on the ground. I am of the opinion that as a matter of law the original location of the Tivey survey 77 would control as against the subsequent location of Texas & Pacific survey No. 1, so far as they conflict.

For reasons stated, I enter my dissent.
      @n»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      (gsAFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes