Home/Court of Appeals of Texas/Hurr v. Hildebrand

Hurr v. Hildebrand

388 S.W.2d 284
CourtCourt of Appeals of Texas
DecidedFebruary 18, 1965
Docket14495
StatusPublished
Cited by15 cases

This text of 388 S.W.2d 284 (Hurr v. Hildebrand) 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
Hurr v. Hildebrand, 388 S.W.2d 284 (Tex. Ct. App. 1965).

Opinions

WERLEIN, Justice.

Appellees brought this suit in trespass-to-try title to recover title and possession of a [285]*285tract of 32.52 acres of land in Colorado County. The suit involves a boundary dispute between appellants and appellees, the appellants contending that the boundary is a fence line on the south side of their land, which separated their tract from appel-lees’ adjoining tract for more than 60 years, and the appellees contending that the true line was not the fence line but a line parallel therewith and some 95 varas north thereof. Appellants filed pleas of not guilty and have set up various statutes of limitation, long recognition of the fence line as being the true line, and acquiescence by appellees therein. Judgment was entered in favor of appellees by the court upon the jury verdict which found against appellants on the issues covering limitation and adverse possession, and also on the issue covering acquiescence on the part of appellees in the fence as being the true boundary line between the tracts. The jury did not answer the issue as to whether the land in dispute was enclosed under the fence in dispute by mistake as to the true location of the south boundary line of appellants’ land, known as the Hurr land, but did answer that D. P. Hurr or his wife, Mattie Hurr, or those claiming under them, had admitted, acknowledged or recognized by words, acts or deeds that title to the tract of land in dispute was in other persons.

The land in dispute as well as the land recognized as belonging to appellants and also the land belonging to appellees is located in the W. K. Paulding (or Pauling) Survey No. 9, Abstract No. 462 and the W. K. Paulding Survey No. 10, Abstract 466, in Colorado County, Texas. On January 18, 1897, J. L. Jellison acquired from Sarah R. Thompson and husband, F. M. Thompson, a tract or parcel of land described as parts of Nos. 9 and 10, W. K. Paulding Surveys situated on the Sandies Creek about twenty miles south of Columbus in Colorado County, Texas, described by metes and bounds as follows:

“Beginning in the center of East Sandies in North line of No. 9, 62 varas East of its N W corner; Thence E through prairie 1559 varas to post in prairie in a mount, Thence South through prairie 2229 varas to corner in flat, Thence W about 1000 varas timber, 3070 varas to corner in center of the Creek, Thence up the center of the creek to the place of beginning containing 868.8 acres of land.”

On May 22, 1897, Jellison sold a called 320 acre tract off the north side of said 868.8 acres to Jesse T. Rutherford, described by metes and bounds as follows:

“Beging in the center of E Sandies in North line of No. 9, 62 varas East of its N W corner, Thence E to the N E corner of No. 9, Thence South sufficient distance to take in 320 acres, Thence W to the center of Sandies Creek, Thence up the Sandies Creek to the place of beginning.”

This same description was used in the deed of said 320 acres from Rutherford to Mayfield dated July 5, 1900, and in the deed from Mayfield to D. P. Hurr, dated February 27, 1901. Included in the deed from Mayfield to Hurr and in the deed from Rutherford to Mayfield was also a 20 acre tract adjoining the 320 acres on the north, such 20 acre tract being out of land patented to the heirs of one Robert Mills.

On November 15, 1898 Jellison sold the residue of the 868.8 acre tract to one W. J. Boschert, describing the property by metes and bounds as follows:

“Beginning in the S E corner of No. 9, Thence West about 3070 varas to center of Sandies Creek; Thence up the center of Sandies Creek to the S W corner of a 320 acre tract, previously sold to Jesse T. and Susan A. Rutherford, off the North side of the tract bought from Sarah R. Thompson and F. M. Thompson by J. L. Jellison; Thence East to the S E corner of said tract, Thence South to place of beginning, containing in all 540 acres more or less.”

[286]*286In 1962 appellees, who deraign title under Boschert, had their 540 acres surveyed with the result that the same appeared to be lacking in acreage quantity. Thereupon appellees instituted this suit, claiming that the more than 60 year old Hurr south fence line was not the south boundary line of appellants’ land but that such fence line was actually located on appellees’ 540 acres, and was some 95 varas south of the true boundary line between the 320 and 540 acre tracts. For a better understanding of the contention between the parties, we are inserting a rough sketch of a plat, Appel-lees’ Exhibit No. 3, which was introduced in evidence at the trial, upon which we have superimposed certain broken lines or dashes, and data illustrative of the contention of appellants with respect to the location of the boundary line between the so-called 320 [287]*287and 540 acre tracts of land, as shown on the map offered in evidence by appellants.

[286]

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Hurr v. Hildebrand
388 S.W.2d 284 (Court of Appeals of Texas, 1965)

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388 S.W.2d 284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hurr-v-hildebrand-texapp-1965.