Hejl v. Wirth

Court of Appeals of Texas

Hejl v. Wirth

334 S.W.2d 498, 1960 Tex. App. LEXIS 2136

CourtCourt of Appeals of Texas

DecidedFebruary 24, 1960

DocketNo. 10730

StatusPublished

Cited by4 cases

This text of 334 S.W.2d 498 (Hejl v. Wirth) 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

Hejl v. Wirth, 334 S.W.2d 498, 1960 Tex. App. LEXIS 2136 (Tex. Ct. App. 1960).

Pincite

Opinions

ARCHER, Chief Justice.

This is a trespass to try title suit in the nature of a boundary dispute.

This suit was instituted by the appellees against appellant for the title and possession [499]*499of a tract of 240 acres out of the Walker Wilson Headright League No. 2 on the waters of Bear Creek in Travis County, Texas, describing the land as being the same property conveyed to Fritz Wirth by August Meyer by deed dated September 20, 1903, recorded in Vol. 180, pages 90-93, and setting out a description beginning in the bed of Bear Creek, with courses and distances, the last such call being “to the bed of Bear Creek”; thence in a southerly direction with the channel of Big Bear Creek until it strikes the channel of Little Bear Creek; thence in an easterly direction with the channel of Big Bear Creek to the place of beginning.

By trial amendment, the description of the land sued for was 72 acres with courses and calls, briefly, beginning in the bed of Big Bear Creek, thence north 1,330 varas; thence west about 610 varas to corner in the bed of Big Bear Creek; thence down the channel of said creek to a corner about 40 varas below the mouth of Little Bear Creek; thence southeast with the said Big Bear Creek about 510 varas to the place of beginning.

The defendant filed his plea of not guilty, plea of limitation and disclaimed as to a portion of the land sued for, leaving in question a small tract of about 6 acres lying between the call of S. 38 E. 560 varas and the actual meanders of the creek, the call approximating the sinuosities of the creek.

Trial was had with a jury and at the conclusion of the evidence each party moved for an instructed verdict and defendant’s motion was overruled and plaintiffs’ was granted and judgment rendered for plaintiffs.

The prime question for determination is the construction of the last call in the deed from J. M. Hodge to G. E. Miller dated May 31, 1878 conveying the 72-acre tract. The description calls to begin in the bed of Bear Creek, thence north 1,330 varas, thence west 510 varas to corner in bed of Bear Creek, thence down the same to corner in the same about 40 varas below the mouth of Little Bear Creek, thence South 38 E. 560 vrs. to the beginning.

In all subsequent deeds the last call is: Thence with Big Bear Creek course 30 deg. east 560 varas (by reference in some of the deeds).

The deed to Fritz Wirth from August Meyer dated September 28, 1903, duly recorded in the records, the description of the 72-acre tract is beginning in the bed of Bear Creek, thence by course and distance and creek calls, the last call being: Thence southeast with the said Big Bear Creek about 560 varas to the place of beginning.

In a deed from John M. Hodge to B. D. Alexander dated November 23, 1900, conveying the land claimed by the defendant by subsequent deeds, the description begins at the S. E. corner of a 450-acre tract, thence north 340 varas to corner in the bed of Bear Creek (this is the S. E. corner and beginning of the description of the 72 acre tract), thence up said creek N. 38 west 560 varas to point in bed of Bear Creek.

It is to be noted that this is the same course and distance as the course and distance in the Hodge to Miller deed in reverse.

In the deed from the heirs of George Dallas to the Veterans’ Land Board dated January 15, 1950, is the call: “Thence up said creek North 38 degrees West 560 varas to point in bed of creek.”

The first time the course and distance call of South 38 degrees East 560 varas is used, the beginning is in the bed of Bear Creek and the ending is to the place of beginning, which was in the bed of Bear Creek.

We insert herein a plat of the area depicting the creek meanders, the old fence line and the line as laid out by appellant’s surveyors:

[500]

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