Home/Court of Appeals of Texas/Cochran v. Moerer

Cochran v. Moerer

87 S.W. 160, 39 Tex. Civ. App. 75, 1905 Tex. App. LEXIS 243
CourtCourt of Appeals of Texas
DecidedApril 12, 1905
StatusPublished

This text of 87 S.W. 160 (Cochran v. Moerer) 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
Cochran v. Moerer, 87 S.W. 160, 39 Tex. Civ. App. 75, 1905 Tex. App. LEXIS 243 (Tex. Ct. App. 1905).

Opinion

NEILL, Associate Justice.

On April 20, 1901, plaintiffs in error, Jerome B. Cochran and W. J. Settegest, Jr., sued defendant in error, Frederick Moerer, in the form of trespass to try title to recover 43.7 acres of land out of lot number 13 of Trott’s subdivision of the west half of the Luke Moore league, situated in Harris County, Texas, on Bray’s Bayou, about thirty-two miles southeast of the city of Houston, beginning at a stake on the north bank of Bray’s Bayou, it being the southern corner of lots 8 and 13, Trott’s subdivision. Thence north 20 degrees east 986.3 varas along the dividing line of lots 8 and 13 to a stake in south line of the one-half enclosure; thence south 70 degrees east 237% varas along said enclosure to a stake in west line of the Sierwesen tract; thence south 70 degrees west 854.3 varas to a stake on Bray’s Bayou; thence up said bayou with its meanders to the place of beginning.

The defendant, Frederick Moerer, answered by pleas of three, five and ten years statute of limitations, and that the land sued for is a part of lot 8 of the west half of the Luke Moore league, and is bounded as follows:

Beginning on Bray’s Bayou at a point which is the southeast corner of lot 8 on the dividing line between lots 8 and 13, in the upper or western half of the Luke Moore league, a sycamore standing . . . varas for said comer, and the hole or root of a pine tree, at one time standing— now gone-—-are original landmarks of said survey; . . . varas from said bayou, being now the southeast corner of lot 8 and southwest corner of lot 13, on the dividing line; thence north 20 degrees east along a fence 897 varas to corner, a pine 24 inches in diameter, marked “P,” on south side; thence north 70 degrees west 250 varas along an old wire *76 fence to the dividing line of lot 8, between IColbow and defendants, being Kolbow’s northeast corner, a leaning post oak marked “K,” and small pin oak marked “K;” thence south 20 degrees west 999 varas along said dividing line and Kolbow’s east fence, being middle line of lot 8, to Bray’s Bayou; thence down Bray’s Bayou with its meanders to the beginning, being the same land sued for by plaintiff, except a strip nine feet wide along said dividing line throughout its entire length, and being the same land to which the plea of limitations applies, and which is described by plaintiffs as part of lot 13.

The case was tried before a jury, who were instructed that, if they found the land sued for by plaintiffs was in lot 13, to return a verdict for plaintiffs, unless they should find for defendant under its plea of limitation of ten years. And “if, on the other hand, the plaintiffs do not prove by a preponderance of evidence that the land sued for is in lot 13, or if they believe the land sued for is, in fact, on lot 8, to so say by their verdict, and find for defendant, and inquire no further. But if they should find that the land claimed by defendant is, in fact, on lot 13, to consider the question of ten years limitation.” Then follows an appropriate instruction for the guidance of the jury in considering said plea. •

After being so instructed the jury returned the following verdict: “We, the jury, find the land sued for is on lot 8, and find for defendant.” Upon this verdict judgment was entered for the defendant, Frederick Moerer, from which judgment this writ of error is prosecuted.

It will be seen, from the statement of the case, that the issue, as presented to us, is one purely of boundary. In determining it we feel only authorized to pass upon the question decided by the jury—i. e., whether the land in controversy is on lot 8 or lot 13 of Trott’s subdivision of the west half of the Luke Moore league survey. This excludes from our consideration the defendant’s plea of ten years limitation, for such plea was not passed upon by the jury, and the evidence upon it is not so conclusive in favor of defendant as would authorize us to say, as a matter of law, that no other judgment than the one rendered could find support in the facts in view of the evidence upon such plea.

In 1824 the government of Mexico titled one league of land to Luke Moore; it was in the form of a square and surrounded by lands belonging to the government. In 1829 Luke Moore convej'ed the western half of said league to Stephen F. Austin, who died in 1837, and James F. Perry was his executor. In 1838 Henry Trott, surveyor, subdivided the west half of the league under the direction of James F. Perry, administrator, and recorded the plat in book “C,” p. 276, a copy of which plat is hereto attached in order that the evidence upon the question under consideration may be understood.

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Bluebook (online)
87 S.W. 160, 39 Tex. Civ. App. 75, 1905 Tex. App. LEXIS 243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cochran-v-moerer-texapp-1905.