Home/Court of Appeals of Texas/Lyons v. Pullin

Lyons v. Pullin

197 S.W.2d 494, 1946 Tex. App. LEXIS 734
CourtCourt of Appeals of Texas
DecidedMay 2, 1946
DocketNo. 4456.
StatusPublished
Cited by6 cases

This text of 197 S.W.2d 494 (Lyons v. Pullin) 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
Lyons v. Pullin, 197 S.W.2d 494, 1946 Tex. App. LEXIS 734 (Tex. Ct. App. 1946).

Opinion

SUTTON, Justice.

This is an appeal from the District Court of Karnes County. The suit is one of boundary. The trial on the facts was to a jury, and on a verdict favorable to the plaintiff judgment was entered in his favor, from which the defendant has appealed.

The disputed strip contains 82.8 acres of land and is approximately 1500 varas long (substantially east and west) and of a mean width of some 315 varas. It is described by plaintiff' by metes and bounds, and claimed by him to be out of the A. J. Burris and the Henry ‘ Clarke original surveys. The defendant admits the description generally as correct, except he does not admit the corners are properly called for nor that it is out of the named original grants.

It is conceded the controlling issue is the correct location of the Southwest corner of the A. J. Burris, The original field notes for the Burris are as follows:

“Beginning at the West corner of a survey made for Peter Gass, a stake from which a mesquite mk. I bears S. 73 deg. W. 40 varas, a hackberry, mkd. V bears No. 56 degrees E. 70 varas.
“Thence S. 20 deg. W. with the line of D. Nicholson’s survey, five hundred and ninety varas to a stake in the bed of West *496 Ojo, from which a mesquite mkd. V. bears S. 74½ deg. W. 42 varas, another mkd'. N. bears S. 38½ deg. W. 71 varas.
“Thence S. 70 deg. E. at 166 varas crosses East Ojo, five hundred varas to a stake, the W. corner of H. Clark’s labor, from which a mesquite mkd. V. bears N. 74 deg. E. 19 varas, another, marked B, bears N. 2½ deg. W. 23 varas.
“Thence N. 20 deg. E. at 400 varas crosses East branch five hundred and ninety varas to the South corner of said Gass’ Survey, on the West boundary of Clark’s labor, a stake from which a mesquite marked A, bears S. 52 deg. E. 128 varas, another, marked W, bears S. 31½ deg. E. 93 varas.
“Thence N. 70 deg. W, with the Gass’ S. line, five hundred varas to the Beginning.” (S.F. pp. 483, 484)

The patent to Burris is dated August 5, 1851.

The plaintiff claims the involved strip as a part of the lands he purchased and described as follows:

“Beginning at the N. W. corner of the Peter Goss 124 acres which is also the S.W. corner of the Wm. Guthrie ⅛ league a stake from whence a mesquite brs. N. 75 deg. W. 41 vrs ;
“Thence S. 20 deg. W. at 1424½ vrs. pasi said Peter Goss S. W. corner, in all 2039½ vrs to the S.W. corner of the S.W. corner of the A. J. Burris survey in the east edge of the Ojo de Agua creek from whence am old mes. brs. S. 38½ W. 71 vrs and an old mesquite bears S. 74 ⅛ deg. W. 42 varas;
“Thence S. 70 deg. E. at 172 vrs. Yates Creek 506 vrs. pass S.W. corner of Henry Clark labor in all 1506 vrs to the said Henry Clark’s S. E. corner a mesquite 4 in. in dia. marked X bears N. 84 deg. E. 29% vrs;
“Thence N. 20 deg. E. 281 varas a stake;
“Thence N. 16% W. 406 vrs a stake from whence a mesquite 6 in. in dia. marked X bears N. 33 deg. E. 14.9 vrs and a mes. 6 in. in dia. marked X bears S. 41 deg. W. 16-1/10 varas;
“Thence N. 53⅜ deg. W. 552 varas to the S.W. corner of a tract of 220⅛ acres belonging to P. B. Lyons;
“Thence N. 74 deg. W. 387 varas to a post at the S.W. corner of 241⅛ acres belonging to A. B. Lyons;
“Thence following the west boundary of said 241⅛ acres N. 18 deg. E. 363 vrs N. 22% deg. E. 780 vrs to a post for corner;
“Thence N. 70 deg. W. 109% vrs to the west corner of said A. B. Lyons 241⅛ acres from whence a mes. 8 in. in dia. marked X bears N. 74 deg. E. 7½ vrs and a mesquite mkd. X bears N. 4 deg. W. 23⅛ varas;
"Thence N. 20 deg. E. 160.8 varas to a stake in the north boundary line of said Peter Goss survey from whence a L.O. mkd. X bears S. 39 deg. E. 46.1 varas;
“Thence N. 70 deg. W. 263.4 varas to the place of beginning.” (S.F. pp. 461-462)

The field notes for the disputed strip are as follows:

“Beginning at a stake in the edge of Ojo de Agua Creek, set for the southwest corner of the A. J. Burris Survey, from which an old mesquite tree bears S. 38½° W. 71 varas and. another old mesquite tree bears S. 74½° W. 43-7 varas;
“Thence S. 71° E. at 120 to 180 varas Yates Creek at 818 varas pass the northwest corner of the A. D. Willbern tract of land, in all fifteen hundred eight (1508) varas to a corner post at the southeast corner of the Henry Clark Survey and a corner of the PI. K. Hardy Survey;
“Thence N. 20° E. 277 varas to a post and stake at the turn of the old Runge and Charco Road;
“Thence N. 16%° W. 22 varas to a corner post;
“Thence N. 69⅜° W. with a fence and north line of this tract of land, at 1075 varas Yates Creek, in all 1493 varas to a stake in the west line of the A. J. Burris Survey and east line of the Jas. G. White Survey;
“Thence S. 20° W. cross and re-cross Ojo de Agua Creek 328 varas to the place of BEGINNING, containing 82.8 acres of land, of which about 25.6 acres are out of *497 the A. J. Burris Survey and about 57.2 acres out of the Henry Clark Survey.” (Tr. p. 3)

The defendant’s concession to the correctness of these field notes so far as the area involved is concerned has been noted heretofore. The following' plat will illustrate the situation involved in the suit:

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Bluebook (online)
197 S.W.2d 494, 1946 Tex. App. LEXIS 734, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lyons-v-pullin-texapp-1946.