The petition in this case contains: First, formal pleading in trespass to try title; and, second, allegation that it is a boundary suit, in that it is sought thereby to fix, determine, and locate upon the ground the north boundary lines of the said two leagues 253 and 254 and the south boundary line of 259 and 260, Borden county school lands.
The tenth assignment is that the judgment is without facts to support it, because there is no evidence that the defendant had any of the lands claimed by plaintiff in his possession. I have searched the statement of facts with utmost care, and fall to find any evidence that any part of the leagues as described in plaintiff's petition is in the possession of the defendant.
The express denial by defendant that the lands owned by plaintiff are described as they are in the petition described, and the denial that he (defendant) had possession of any lands owned by plaintiff, put the burden upon plaintiff to prove that, as originally located and patented, his survey in fact included the land inclosed by the defendant. Hill v. Collier, 135 S.W. 1084.
If I understand the opinion, it holds that the defendant disclaimed as to all the land sued for, and therefore plaintiff was relieved of the proof of actual location upon the ground. It is clearly not susceptible of such construction, but shows that defendant had possession of leagues Nos. 259 and 260 and down to a fence which the plaintiff himself had located on the ground according to a former survey. The portion of defendant's answer which definitely fixed the line to which he claims title, and which is alleged by him to be the true boundary line, and which definitely fixed the portion to which his disclaimer applied, was excluded upon demurrer; thereby denied the right to introduce evidence in support of this contention. When a disclaimer makes an exception which is imperfect in its description, but which, taken in connection with the petition, can be understood to apply to a definite tract, the court will so hold and regard the issue of not guilty as applying to such part so designated. McBee v. Johnson, 45 Tex. 637. The effect of the holding in the majority opinion is that the plaintiff can describe his entire leagues upon a declaration that it is a boundary suit, not sue for the disputed strip, by metes and bounds, thereby compelling the defendant to make up the distinct issue by definitely describing the portion of the whole which he claims. This is not in accord with the rules of pleading as I understand them. The defendant, by his answer in this case, said clearly and definitely to the plaintiff:
"You have not correctly described your lands in your petition. As described, I claim all that north of a given point, because it lies in the true boundaries of my land, to wit, leagues 259 and 260, Borden county school lands."
Has further said to the plaintiff:
"Your land lies south of mine, and the true boundary line thereof is the one fixed by your former survey, and by the fence you built. As to all the lands south of that line indicated by your fence, I disclaim, because it is within the true boundaries of your leagues."
If this disclaimer was not sufficient, because it did not clearly and definitely describe the lands claimed and the lands to which he laid no claim, plaintiff should have excepted to it for that reason, thereby giving defendant a chance to amend. Since he went to trial without doing so, he should not now be permitted to say that it was not definite enough, but is a disclaimer as to all the lands sued for. Herring v. Swain, 84 Tex. 523, 19 S.W. 774.
The defendant's answer is sufficient to place the burden upon the plaintiff to prove: *Page 610 First, that the description incorporated in his petition is the true description of his lands; second, to prove that according to the true description of plaintiff's lands, defendants have a certain portion of it in their possession; third, to fix definitely the boundary line between the lands by the parties; and, fourth, if, when run out on the ground according to the true description, any of it was north of the fence, or included in the lines of 259 and 260, then the further burden was upon the plaintiff to establish his title to such portion. As I view the record, none of the above have any evidence to establish them, and until the plaintiff made a prima facie case, the defendants were not required to offer any evidence. The court therefore erred in its peremptory instruction to the jury.
If the disclaimer was broad enough to permit the plaintiff to recover without evidence, then we should reform the judgment here and tax the costs of the trial court to plaintiff, as requested in tenth assignment. Lumpkin v. Woods, 135 S.W. 1139.
The plaintiff not having met the burden of proof as indicated above, the real question in the case, to wit, the true location of the boundary line, has not been determined. Therefore the case should be reversed and remanded.
I therefore enter my dissent.