Barton v. Kuehne

234 S.W.2d 84, 1950 Tex. App. LEXIS 1683
CourtCourt of Appeals of Texas
DecidedOctober 26, 1950
DocketNo. 2917
StatusPublished
Cited by2 cases

This text of 234 S.W.2d 84 (Barton v. Kuehne) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barton v. Kuehne, 234 S.W.2d 84, 1950 Tex. App. LEXIS 1683 (Tex. Ct. App. 1950).

Opinion

HALE, Justice.

Appellant sued appellees in trespass to try title for the recovery of a certain lot situated in Marlin, Texas. The lot was described by metes and bounds in the petition of appellant as being 166 feet in depth and 57½ feet in width fronting south on Coleman Street. Appellees answered with a disclaimer to the land sued for by appellant and described in her petition, “save and except any portion thereof which may be West of a point 57½ feet East of a point 315 feet West of the intersection of the [85]*85West line of Gresham. Street with the North line of 'Coleman Street in the City of Marlin” and subject to such disclaimer they answered further with a general denial and a plea of not guilty. The case was tried before a jury on the issues, if any, thus joined by the pleadings. Upon the conclusion of the evidence appellant seasonably moved the court to instruct the jury “to return a verdict in her favor establishing the true boundary line between her and defendant as beginning at the point marked B on plaintiff’s Exhibit IS, and extending North 166 feet from such .point”, for reasons set forth in her motion. The court overruled appellant’s motion for a peremptory instruction and submitted the case to the jury on certain special issues. The jury answered each of the submitted issues against the contentions of appellant and thereupon the court rendered judgment in favor of appellant for the property as described by metes and bounds in her petition, save and except any portion thereof as designated in appellees’ plea of disclaimer and decreeing that appellant take nothing by her suit as to any portion of the lot sued for which may lie within such designated exception.

Under the first point in her brief appellant says the court below erred in overruling her motion for a peremptory instruction. On the other hand, appellees say the evidence adduced upon the trial of the case raised fact issues as to the true location of the boundary line in controversy and hence its location was properly a jury question.

The evidence in the case discloses that Herman Kirkpatrick, a common source of title between the parties to this suit, conveyed to James A. Kirkpatrick on March 16, 1940 a lot 166 feet in depth and 115 feet in width fronting south on 'Coleman Street. The lot thus conveyed was described generally as being the east one-half of a certain lot referred to in a prior deed of conveyance dated January 5,1905, and specifically as beginning at the southeast corner of the adjoining west one-half for the southwest corner of the east one-half therein conveyed; thence north with the east line of the adjoining lot 166 ft.; thence east 115 ft.; thence south 166 ft.; and thence west along the north line of Coleman Street to the place of beginning. The west one-half of the lot referred to 'in the prior deed of January 5, 1905 was conveyed to iChas. F. Eddins on September 8, 1908 and was owned and occupied continuously thereafter by- Eddins until the time of his death and by his surviving widow up until the time of the trial in this case.

Sometime 'in June of 1943 James A. Kirkpatrick negotiated a sale of the property which he 'had acquired from Herman Kirkpatrick and in connection therewith he secured the services of W. W. Hunnicutt, ■County Surveyor of Falls 'County, to make a survey of the property. Hunnicutt went upon the ground, surveyed the property and established its corners in relation to the intersection of Coleman and Gresham Streets. The field notes made by Hunnicutt in this survey were used in the deed from James A. Kirkpatrick to O. O. Smith. The property was described’' generally in this deed as being the same lot conveyed by Herman Kirkpatrick to James A. Kirkpatrick by deed dated March 16, 1940, and specifically as “beginning at the S. W. corner of the James A. Kirkpatrick lot in the north edge of Coleman Street 315 feet west from the intersection of the West edge of Gresham Street with the North edge of Coleman Street; thence North 166 feet to corner in the South edge of 20'foot alley; thence East with edge of alley 115 feet to corner; thence South 166 feet to corner in the North edge of Coleman Street; thence West with the edge of Coleman Street 115 feet to the place of begin-ing.”

Thereafter, on September 2, 1943, O. O. Smith conveyed to 1C. R. Eddins the east one-half of the lot conveyed to Smith by James A. Kirkpatrick, describing the same by metes and bounds as “beginning at a point in the north line of Coleman Street 57½ feet east of the S. W. corner of the lot above mentioned; thence east with the north line of Coleman Street about 57½ feet to the S. E. corner of the lot conveyed to O. O. Smith; thence north with the east line of said lot 166 feet to the N. E. corner [86]*86of said lot;' thence west with the north line of s.aid lot about 57½ feet to a point 57½ feet east of the N. W. corner of the Smith lot; thence in a southerly direction 166 feet to the place of beginning.”

On November 26, 1943, O. O. Smith conveyed to appellees a lot 166 feet in depth by 57½ feet in width beginning for its S. W. corner at a point in the north line of Coleman Street 315 feet west from the intersection of the west line of Gresham .Street with the north line of Coleman Street; thence N. 166 ft.; thence E. 57½ ft.; thence S. 166 ft.; and thence W. with the north line of Coleman Street 57½ ft. to the place of beginning. Through mesne conveyances the title to the property as described in the deed from O. O. Smith to C. R. Eddins under date of September 2, 1943, became vested in appellant by a proper deed dated December 6, 1947.

Appellant introduced two photographs in evidence which were duly identified and marked as exhibits 14 and 15, respectively. Exhibit 14 depicted two' houses with a fence between them. One of these houses was situated upon the property where Mrs. Chas. F. Eddins had resided since 1908 and the other house was situated upon the property which was conveyed to appellees by O. O. Smith. The fence between the two houses, if projected in a straight line, would have intersected the adjacent sidewalk in front of the properties at a point marked “A” on exhibit 14 which point was also in line with a substantial “crack” or drop in the elevation of a portion of the sidewalk. Exhibit 15 depicted two houses with a driveway and a fence between them. One of these.houses was situated upon the property which Smith conveyed to appellees and the other house was situated upon the property which was conveyed to appellant in 1947. The fence between these two houses, if projected in a straight line, would have intersected the adjacent sidewalk at a point marked “C” on appellant’s exhibit 15. This exhibit is also marked with a “B” in the sidewalk. The distances from the point marked “A” in exhibit 14 to the points marked “B” and “C” in exhibit 15 are 57½ feet and 61½ feet, respectively.

The undisputed evidence showed and ap-pellees admitted that the old fence along the east line' of the property owned by Chas. F. Eddins had been recognized by all interested parties as the true boundary line between the Eddins property and that which adjoined it on the east from the time when Eddins acquired his property in 1908 until the survey was made by Hunnicutt in 1943.

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Bluebook (online)
234 S.W.2d 84, 1950 Tex. App. LEXIS 1683, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barton-v-kuehne-texapp-1950.