McHard v. State

Court of Appeals of Texas

McHard v. State

509 S.W.2d 413, 1974 Tex. App. LEXIS 2331

CourtCourt of Appeals of Texas

DecidedApril 24, 1974

DocketNo. 952

StatusPublished

This text of 509 S.W.2d 413 (McHard v. State) 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

McHard v. State, 509 S.W.2d 413, 1974 Tex. App. LEXIS 2331 (Tex. Ct. App. 1974).

Pincite

Opinion

TUNKS, Chief Justice.

This is a trespass to try title case.

The State of Texas and Gulf Oil Corporation were the plaintiffs in the trial court. Samuel Everett McHard, Jr., was the principal defendant. This case involves a tract of land approximately rectangular in shape. The tract is about 2525 feet north and south and 390 feet east and west. The land is alleged by plaintiffs to be in the J. Poitevent Survey # 4 in Fort Bend County, Texas. The defendants alleged that the land does not lie in the Poitevent 4, but instead lies within the Moses Merritt Survey in that county. The Poitevent 4 and the Merritt lie with the east line of the Poite-vent being adjacent to, or east of, the west line of the Merritt. The parties stipulated that the plaintiffs were the owners of the Poitevent 4 and McHard was the owner of the Merritt. The Poitevent 4 is the senior of the two surveys. It is the contention of the plaintiffs that there is an overlapping of the two surveys as to the land in question. If the land lies in the Poitevent 4, since it is the senior survey, they are entitled to judgment for title to the property. That is to say, the plaintiffs claim that the east line of the Poitevent 4 lies to the east of the west line of the Merritt. McHard and his predecessors in title have been in fenced possession of the land for many years. Thus the case involves the establishment by the plaintiffs of the east boundary of the Poitevent 4.

The trial court first submitted the case to the jury. After the jury had returned a verdict which was considered to consist of conflicting findings, the case was withdrawn from the jury, and judgment was rendered for the plaintiffs. Thus, to prevail, the plaintiffs were bound to establish their claim as a matter of law.

There is attached to this opinion a sketch of that portion of Fort Bend County which is relevant to this discussion of the evidence. That sketch and the figures on it will be referred to in such discussion. It was compiled from maps offered in evidence by the parties. The land in controversy is the rectangle included within the points numbered 7 to 17 to 19 to 20 to 7. The line from 17 to .19 is admittedly the west boundary of the Merritt. It is contended by the plaintiffs that the line from 7 through 20 to 6 is the east line of the Poitevent 4.

The oldest survey of those shown on the sketch is the David Bright League. It was surveyed in 1824 by Horatio Chriesman, the surveyor for Stephen F. Austin’s colony. In making that survey, he identified the southwest corner by reference to natural monuments, which were identified trees. The other corners are identified by calls for a course and distance from the southwest corner. The calls are for north 5000 varas from the southwest corner to the northwest corner, 5000 varas east to the northeast corner, 5000 varas south to the southeast corner, and 5000 varas west back to the southwest corner, the place of beginning. Other relevant surveys shown on the sketch are the Hicks Shropshire, the Thos. Hobermaker, the Edward Drew, the J. Poitevent 3, the Thos. W. Thompson, and the Poitevent 4. All lie to the east of the David Bright League; all were surveyed by George Schley. The field notes for all were dated in December of 1874. All of them depend, for the establishment of their eastern and western boundaries, upon the location of the eastern or western boundary of the David Bright League. All of them call, directly or indirectly, for a distance from the western boundary of the David Bright League. None of their field notes call for either any natural or artificial monuments by which any of their eastern or western boundaries can be fixed. The Merritt was surveyed by Schley in 1875. Thus it became necessary, if the [415]*415eastern boundary of the Poitevent 4 was to be identified, to identify some corner of the David Bright League. It then became necessary to follow the footsteps of George Schley for a distance of about 20,000 feet to the eastern boundary of the Poitevent 4, without the benefit of any monument as none was called for by Schley in making the blocks of surveys.

The only surveyor to testify in this case was Harold B. Fisher, a licensed surveyor, called as a witness by the plaintiffs. We shall first examine his testimony as to the identification of the Bright League as a beginning point by which to find the east boundary of the Poitevent 4.

Fisher relied, in part, on the field notes of S. M. Fore who made a resurvey of the Bright League in 1891. Those notes recite that Mr. Fore found the witness trees called for by Chriesman in the original survey as identifying the southwest corner. He also marked a new witness tree. His notes indicate that he then proceeded around the boundary and called for crossing certain streams at certain points.

H. J. Walger surveyed a part of Fort Bend County, including the Bright League, from 1892 to 1896 for the purpose of locating a county road. His field notes show that he set a railroad iron at the northwest, northeast, and southeast corners. His field notes did not refer to the witness trees referred to by Chriesman and Fore.

C. R. Hale made surveys in 1956. He found a railroad iron at what he identified as the common corner of the southeast corner of the Bright League and the southwest corner of the Shropshire survey. He also found such a railroad iron at the northeast corner of the Bright League.

Fisher, in his effort to fix the corners and boundaries of the Bright League, did not find any of the witness trees called for by Chriesman and Fore as marking the southwest corner of that league. He found five iron rods set in the intersection of the road beds running along what appeared to be the south line and the west line of the league. He tentatively accepted this as the southwest corner. From there he proceeded north along the line of Farm Road 1092. At 2747 varas he crossed Oyster Creek. Fore had called for this crossing as “about 2700 varas.” At 3967 varas he crossed Red Gully. Fore called for such crossing as 3977 varas.

At the occupied north line of the Bright League Fisher found a railroad iron buried in the road which he accepted as the one set to mark the northwest corner by Wal-ger. He then proceeded easterly, crossing Stafford Run Creek at 1526 varas. Fore called for that crossing at 1488 varas. At 3601 varas he found a railroad iron in the north occupied line of the League. Wal-ger’s notes indicate that he set this marker. He proceeded on easterly and at a point 1399 varas further on he found the railroad iron Walger had set as marking the northeast corner of the League. Walger’s notes called for this latter distance as 3884 feet. This point is marked No. 1 on the attached sketch. Fisher found this point to be 5000.37 varas from what he had accepted as the northwest corner. Chriesman had called for a distance of 5000 varas along the north line of the League. This is the point from which Fisher began the east and west computations along the north side of the surveys intervening between the east line of the Bright League and the east line of the Poitevent 4.

Fisher then proceeded down the occupied east line of the League to the occupied southeast corner. He did not find the railroad iron that Walger said he set at the southeast corner of the League. However, Hale, an earlier surveyor, had said that he found the iron at a point 35 feet south of and in line with the occupied east line. Fisher accepted that point as the southeast corner of the League. It was from this point that he began his east and west computations along the south edge of the inter[416]*416vening surveys. The point is marked No.

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