The appellant on page 23 of its motion for rehearing states that the following part of the opinion of the court was incorrect: "The plaintiff's title is connected with a partition deed between Mrs. Wright, the surviving widow of M. H. Wright, and the heirs at law of M. H. Wright, dated the 11th day of June, 1884." The error consists in giving the year 1884 instead of 1894; and to this extent the opinion will be corrected.
Also on the same page of the motion occurs this statement: "That the court erred in so much of the opinion in stating that 'there is no complaint made that the court refused any charge requested by the appellant upon this subject.' " The motion then refers to the fact that the eighth assignment of error submitted a proposition covering the subject mentioned in the opinion of the court. What we intended to say was that the charge of the court was correct as far as it went upon this subject, and that if not as full as the appellant desired, an additional instruction should have been requested. We were aware of the fact, at the time we used this language, that the appellant had requested the instruction set out under its eighth assignment of error, but we did not intend to hold that that instruction properly covered the matter omitted by the charge of the court, or that it was proper that such requested instruction should have been given. The opinion of the court disposes of the eighth assignment of error, and, in effect, holds that there was no error in refusing to give the charge requested.
The appellant also on the same page, and page 24 of its motion for rehearing, complains of the following portion of the opinion of the court: "The appellant contends that its right of way opposite the plaintiff's lots extends further north than twenty-five feet from the center of the original track located by the East Line Red River Railroad Company."
The motion then proceeds with this statement: "The court seems to think that appellant bases its right to the strip of land north of the 25-foot limit by reason of the deed from M. H. Wright, dated January 30, 1880, conveying the original right of way. This is an error. It makes no claim to said strip of land by reason of that deed, but does claim it by reason of the deed dated December 20, 1901, from N.E. *Page 134 Wright, the widow of M. H. Wright, to whom the strip of land had been conveyed prior to that by the other heirs of M. H. Wright. The court evidently overlooked this deed. Appellant in its brief called attention to it in the brief at the bottom of page 63. Appellant makes no contention whatever that the deed of January 18, 1880, covers any land north of the 25-foot limit."
As we understand the record, we are of the opinion that the appellant, in addition to the right asserted under the deed of December 20, 1901, also claimed the strip in controversy by virtue of the deed executed by Wright January 30, 1880, to the East Line Red River Railroad Company, which right the appellant subsequently acquired. We did not discuss the deed of date December 20, 1901, because under no view of the evidence could it have been considered in determining the extent of the boundaries of appellee's land, as determined by the deeds under which he holds, and which were executed by the Wrights long prior to the time that the appellant acquired its additional deed in 1901. The original deed under which the appellee deraigns title, of date June 11, 1884, describes the land claimed by appellee as follows: "Beginning at the west boundary line of the original survey 260 1-5 varas south of the center of Washington Street; thence east 359 varas; thence south 363 1-10 varas; thence 150 varas to the west side of Texas Street; thence south 178 varas to the railroad right of way; thence with said right of way 509 varas to the beginning."
This deed by its terms calls for the railroad right of way, as one of the lines of the survey. The only deed then in existence that determined the location of the right of way was the deed that had been previously executed by the Wrights of date January 30, 1880, which fixed the right of way at twenty-five feet on each side of the located line of road. The deed under which the appellee holds, of course, would extend to where the line of the right of way was found to exist, which we determine to be twenty-five feet on each side from the center of the located track. If the land was conveyed to the vendors of the appellee by the deed above mentioned, then it is clear that the subsequent deed executed by Mrs. Wright to the appellant in 1901, conveying the same land, if such is its effect, could not be considered in determining or in any manner controlling or limiting the extent of the boundaries of the appellee's land acquired by the deeds under which he holds, which were executed many years prior to the time that Mrs. Wright attempted to convey the land in 1901 to the appellant.
The motion for rehearing is overruled.
Overruled.
Writ of error refused October 20, 1904. *Page 135