W. T. Carter & Bro. v. Collins

192 S.W. 316, 1916 Tex. App. LEXIS 1332
CourtCourt of Appeals of Texas
DecidedOctober 26, 1916
DocketNo. 68.
StatusPublished
Cited by12 cases

This text of 192 S.W. 316 (W. T. Carter & Bro. v. Collins) 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
W. T. Carter & Bro. v. Collins, 192 S.W. 316, 1916 Tex. App. LEXIS 1332 (Tex. Ct. App. 1916).

Opinion

*317 CONLEY, C. J.

This was an action of trespass to try title brought by appellees, Y. A. Collins, Robert Dunham, and Mrs. Mary Col-ville, against W. T. Carter & Bro., a partnership composed of W. T. Carter and E. A. Carter and Jack Thomas, and also against the Thompson-Tucker Lumber Company, a private corporation, to recover all of the Thomas Colville league of land in Polk county, save and except a strip 1,000 varas wide by 5,000 varas long off of the southwest portion of the league, known as the “1000-Vara strip.” The title to a tract of 320 acres known as the “Handley tract” in the east corner of the Col-ville league, claimed by appellants in their answer, was conceded to be in appellants, and judgment was accordingly rendered in their favor, and that tract is therefore not involved in this appeal. Appellants, in addition to their pleas of general denial and not guilty, disclaimed any interest in or title to the Thomas Colville league, save and except whatever part thereof might be included within the following boundaries, the same being referred to as the Bartolo Escobeda league of land, title to the said Bartolo Escobeda being issued on the 22d day of June, 1835, and which they described as follows:

“Beginning at the most northern corner of the Lowry T. Hampton league survey, from which a white oak 20 inches in diameter bears south 47 east 8 varas distant and another white oak 18 inches in diameter bears south 1% west 7 varas distant; thence north 45 east 5,000 varas to a corner from which a pine 15 inches in diameter bears south 80 east, 4 varas, and a black oak 15 inches in diameter bears north 2% west 11.1 varas distant; thence north 45 west 5,000 varas to a corner, from which a cotton wood 14 inches in diameter hears north 14 east 13.2 varas distant, and a black oak 20 inches in diameter hears south 80% west 9.1 varas distant; thence south 45 west 5,000varas to corner; thence south 45 east 5,000! varas to the beginning, containing one league of 4,428 acres of land.”

As to the land included within the above boundary, the appellants pleaded title by legal conveyances from the sovereignty of the soil, and also pleaded 3, 5 and 10 years’ statutes of limitation. The case was tried with a jury, and was submitted on special issues, upon the answers to which the court entered judgment in favor of appellees for all of the Colville, except the Handley 320-acre tract, and the 1,000-vara strip above referred to. In due time appellants filed their motion for a new trial, which was overruled, and an appeal was perfected to this court.

The principal questions to be determined upon this appeal are as follows: First. Do the Escobeda and Colville leagues conflict? Second. If they do not conflict, have the ap-' pellants perfected title to the Colville land by virtue of the statutes of limitation, under deeds and muniments of title describing the identical land? Third. If the Escobeda and Colville leagues do not conflict, and appellants are not entitled to recover under their pleas of limitation, are not appellants entitled to recover the Tom Kinard 140-acre tract by virtue of the statute of limitation?

It is conceded that the appellants have title to the Escobeda league, and the appellees have the record title to the Colville league, except the Handley 320 acres and the 1,000-vara strip, and that the Escobeda is an older grant than the Colville.

In the solution of the issues involved, the first question presented for consideration is, Do the Escobeda and the Colville leagues conflict? The jury found that they do not conflict. But the appellant contends: First, that the undisputed evidence showed that the two leagues were located in conflict, except as to the 1,000-vara strip off of the southwest portion of the Colville league; and second, that it was therefore error to submit the issue of conflict to the jury, as was done by. the trial court; and, third, that the findings of the jury that the two leagues were not in conflict is contrary to the undisputed evidence, or, at least, contrary to the great preponderance of the evidence, and should therefore be set aside. '

These contentions are embraced in appellants’ first five assignments of error. The ultimate effect of these assignments is to raise the question that the verdict of the jury on the issues of boundary is not supported by the evidence, and that the charge of the court submitting such issues is not sustained by the facts of the case, and we will discuss the subject from such viewpoint, without treating seriatim each assignment of error as found in the brief.

The Bartolo Escobeda league was originally surveyed by S. C. Hirams, the field notes bearing date March 31, 1835, same being as follows:

“XBD Title June 30, 1835, Vol. 20, p. 583, Polk Co. XBD V 83.
“Field notes of a league of land surveyed by Bartolo Escobeda on the east side of Trinity on the branch of the Neches called the Big Sandy. Beginning at the northwest corner of league No. 2 surveyed for Lowry T. Hampton mound and stake, from which a black oak 20 inches in diameter bears south'47 deg. east 8 varas dist. also a white oak 18 inches in diameter bears south 1% deg. west 7 varas distant, thence north 45 deg. east 2430.3 varas Big Sandy running south 15 varas wide, 5000 varas, made a mound and planted a stake, from which a pine 15 inches in diameter bears south 80 deg. east, 4 varas distant; also a black oak 15 inches in diameter bears north 2% deg. west 11.1 varas distant. Timber, Pine, oak, elm, hackberry and hickory, undergrowth cane, sassafras and myrtle, some overflow and the land on the west side rich and fertile, but on the east mostly poor sandy land; thence north 45 deg. west 580.5 varas, pine 20 inches in diameter, line tree, 5000 varas, mound and stake, third corner, from which an elm 14 inches in diameter bears north 14 deg.’ east 15.2 varas distant, also a black oak 20 inches in diameter bears south S0% deg. west 9.1 varas distant. Timber principally pine, undergrowth myrtle, cypress and paw paw; thence south 45 deg. west 385 varas, pine 18 inches in diameter, line tree 543.5 varas, black oak 18 inches in diameter, line tree, 4250 varas Big Sandy, 5000 varas mound and stake, fourth corner, timber pine, oak, hickory, and *318 hackberry, undergrowth, myrtle, peach and cane, land generally rich and fertile. Thence south 45 deg. east 5003.5 varas, fell 4% varas south of the place of beginning, timber of a good quality, pine, oak, magnolia, beech and land rich, north 45 deg. west on true line, 5003.5 varas to the fourth corner, containing one league, about 7 labors of good farming land.
“S. C. Hirams, Surveyor,
“March 31, 1835.”

This surveyor surveyed the Juan Falcon on the same day. The Thomas Colville was surveyed on June 24, 1835. The Lowry T. Hampton on March 14, 1835, the A. Wiley on June 24, 1835, the Henry Cone on the-day of-, 1835, the A. Emanuel on June 24, 1835, and the F. Castanado on June 1, 1835. These are all adjoining surveys and their location, as well as other matters hereinafter referred to are shown on the following map:

The field notes of the Colville are as follows:

“XBD Title Aug. 30/35 Vol 21 p 815 Polk Co. XBD V 115
“Field notes of a League of Land surveyed for Thomas Colville on Big Sandy.

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Bluebook (online)
192 S.W. 316, 1916 Tex. App. LEXIS 1332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/w-t-carter-bro-v-collins-texapp-1916.