Morse v. Southerland

318 S.W.2d 709, 1958 Tex. App. LEXIS 1592
CourtCourt of Appeals of Texas
DecidedNovember 20, 1958
DocketNo. 3603
StatusPublished
Cited by1 cases

This text of 318 S.W.2d 709 (Morse v. Southerland) 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
Morse v. Southerland, 318 S.W.2d 709, 1958 Tex. App. LEXIS 1592 (Tex. Ct. App. 1958).

Opinion

McDONALD, Chief Justice.

Plaintiffs Mrs. Nula Southerland-and her children filed this cause against Ike Morse as defendant, as a trespass to try title suit to a certain 100.2 acres of land in Coryell County; for injunction restraining defendant from molesting a certain fence, and from further trespassing on plaintiffs’ property. Trial was before the court without a jury, who after hearing, rendered judgment for plaintiffs for title and possession of the land sued for, and establishing the boundary as contended for by plaintiffs, and enjoining defendant from interfering with the fence, the well or any other premises of plaintiffs.

Plaintiffs and defendant are adjoining property owners and the controversy arises as to the boundary between the tracts of plaintiffs and defendant at the southern extremity of their properties. The area in controversy is very small but has located thereon a well. The following schematic diagram may be useful in an understanding of the facts and the contentions of the parties :

[711]*711The Trial Court filed Findings of Fact and Conclusions of Law, pertinent portions of which are as follows:

“In 1936 the Federal Land Bank owned the property that belonged to plaintiffs in this case, and that they erected a fence on the East side as the boundary line of the land, which now joins the land that is owned by defendant. In 1937 the Federal Land Bank conveyed said land to N. E. Hardie and in 1942 N. E. Hardie conveyed said land to H. L. Southerland and Mrs. Nula Southerland is the surviving widow of H. L. Southerland .and the other parties plaintiff are the children of the Southerlands. At the time of the conveyance to Hardie and the conveyance from Hardie to Southerland, the said land was fenced on all sides, representing the boundary line of the hereinafter described property:
“All that certain tract or parcel of land situated in Coryell County, Texas, to-wit: 100.2 acres of land, more or less, out of the William Walker Survey * * * and more particularly described by metes and bounds as follows, to-wit: * * *”
The court also finds that during the time the property was owned by Hardie that he dug a well, known as a spring well, which is in question herein, and walled said well up and said well is situated and located within the boundary of the Southerland property as conveyed to them and not any property that is owned by the defendant.
The court also finds that the above described property has been held adverse to the defendant and to all others from 1937 to 1957 and that the plea of the 10 year limitation as pleaded by the plaintiff is in all things sustained. Also as to all the lands within the boundary of the fence surrounding the property of the plaintiffs, the court also finds that the fence was erected in 1936 as the east boundary line of said property belonging to the plaintiffs, and that the defendant had no right, title, or interest in said fence. The court further finds that on or about 15 August 1957, the defendant took down a portion of the fence surrounding plaintiffs’ property on the east of plaintiffs’ property and between the property of the plaintiffs and defendant and that the defendant, had no right to molest said fence in any way and has no right, title or interest in said well, nor in any of the land that is enclosed by the fence surrounding the Southerland property. The court further finds that neither side is entitled to damages in this case, but that the plaintiffs are entitled to judgment restraining the defendant Ike Morse from in any way interfering with, injuring, tearing down or molesting the fence between his property and the Southerland property or any other fence surrounding the Southerland property.
The court also finds that the above described land has been properly severed from the public domain of the State of Texas and plaintiffs’ common source of title is from Federal Land Bank and N. E. Hardie.
Conclusions of Law
If there is any discrepancy in the fieldnotes of the land described above, that same has been held adversely to the defendant, Ike Morse, for a period of more than ten years and the said title by limitation has fully ripened before the institution of this suit.
The court further concludes that the plaintiffs are entitled to permanent injunction restraining same as pleaded and prayed for in plaintiffs’ first and second amended petitions.

Defendant appeals, contending:

1) The Trial Court erred in overruling defendant’s exceptions 1 and 2 to plaintiffs’ amended original petition, wherein plaintiffs alleged that defend-
[712]*712ánt had torn down and moved part of their fence, without alleging where the fence was located.
2) The Trial Court erred in granting an injunction against defendant “restraining him from interfering with said fence and other premises that is enclosed by fence, etc.”, for the reason that said injunction does not describe the location of such fence with a definite description and comply with Rule 683, Texas Rules of Civil Procedure requiring': “Injunction * * * shall be in specific terms; shall describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be restrained.”
3) The Trial Court erred in failing to conclude as a matter of law that the description in plaintiffs’ petition as to location of the fence is too indefinite to support a jttdgment or an injunction against defendant from moving and interfering with the fence.
4) The Trial Court erred in not concluding as a matter of law that under the ten year statute of limitation it is not necessary for a suit to be brought in ten years after adverse possession was taken in order for the statute to be tolled.

Defendant’s contentions 1, 2 and 3, complain of the description given in plaintiffs’ pleadings and in the court’s judgment, of the property in controversy, and upon which the fence which defendant is enjoined to not interfere with islocated. This complaint is grounded on the fact that a portion of the area in dispute (see schematic diagram supra) lies south of the William Walker Survey and within the W. J. Robinson Survey, whereas plaintiffs in their petition, and the court in its judgment described the property as being in the William Walker Survey. While the fact that a small portion was located in the W. J. Robinson Survey was not noted, the property was described by metes and bounds, and as being enclosed by a fence. The metes and bounds description positively and affirmatively placed the area in controversy in the Southerland tract of land. We think the description is adequate. Furthermore, the plaintiffs’ plea of title under the ten year statute of limitation (R.S. Art. SS10) is supported by possession for the required period, and by claim of ownership under a deed, and even though the deed did not by its fieldnotes actually include the disputed tract, the tract is acquired by the adverse possessor under such circumstances. Tarver v. Naman, Tex.Civ.App., 265 S.W.2d 852, W/E Ref. NRE; McCabe v. Moore, Tex.Civ.App., 38 S.W.2d 641, W/E Dis., 2 Tex.Jur. 125; Major v.

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Bluebook (online)
318 S.W.2d 709, 1958 Tex. App. LEXIS 1592, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morse-v-southerland-texapp-1958.