Breland v. Rice

ON MOTION FOR REHEARING

CHADICK, Chief Justice.

The motion for rehearing is granted. Effort will be made to confine discussion to the minimum that is compatible with understanding the issues involved. The plaintiffs undertook to establish both a record and a limitation title to the land described in their petition in this trespass to try title action. The defendants were in possession of a substantial part, approximately the south half, of the land described, but made no claim of title thereto. The defense was that original title to the land in defendants’ possession had never been divested out of the State of Texas, and reposed in the State at the time of trial.

The land described in the trial petition was several hundred acres in area, but to more easily grasp compass directions 1 and shape, it may be mentally pictured as a baseball diamond. The southeast corner would be home plate; the northeast corner first base, the northwest corner second base, and the southwest corner third base. The base path (boundary) from third to home plate would noticeably bulge outward. Location of the southeast corner (home plate) was the crucial issue in the trial court. The location of other comers, though questioned, are adequately established.

The plaintiffs contend the southeast corner (home plate) is on the banks of a watercourse that is known to the present generation as Big Cypress Bayou. The defendants claim this corner’s true location is roughly half-way between home plate and first base at a point the defendants identify as the waterline of now vanished Ferry Lake. The patent from the State of Texas to Benjamin F. Lynn gives the general locations of the land granted as “In Red River District, Cass County, on Ferry Lake * * * ” and continues with a specific description of the southeast (home plate) corner and the first boundary call (home to third base) in this language, to-wit: “BEGINNING at the S.W. corner of David Lands western survey, a large pine marked ‘BB’ from which a sweet gum bears South 79 deg. west 11 vrs. a black oak bears North 68 deg. east 62 vrs. Thence up the lake with its meanders North 77, West Nine Hundred and Sixty-eight varas, North 47 deg. West Eleven Hundred and Ninety varas *908to a pine tree for the S.W. corner of the survey from which another bears south 23 deg. East 32 varas, another bears North 23 deg. West 3-1¡22 varas.”

A registered engineer, whose qualification as a land surveyor is not questioned, testified that he began a survey at a point in the boundary line of the Lynn Survey that corresponds with “first base.” He ran the survey clockwise. From his beginning point he followed the course of the Lynn Survey’s southeast boundary until he reached Big Cypress Bayou. Along this line he found old fences and other evidences of occupation. The line crossed an inlet to Moseley slough which was probably a small backwater cove off Ferry Lake at an earlier time. At the point where this line reached the top of the high bank of Big Cypress Bayou he found a stake (an iron axle) in the ground. Also, a stumphole North 87 deg. 30' West 39.8 feet from the stake. He did not find at this point, or elsewhere, a pine tree marked “BB” nor the bearing trees specified in the description of the survey contained in the patent.

Certain extracts from the findings of fact in the case of D. C. Rowell et al. v. Thomas Jordan, Inc., No. 16016 in the District Court of Marion County,2 were admitted into evidence. Admission of this record is not briefed as error in this appeal. It is recited as a fact in these extracts that during the period 1839-1874 Caddo Lake was generally known as Ferry Lake, and “(b) That the waters of Black Cypress and of Big Cypress Bayou emptied into Ferry Lake, and in fact that the level of water in Ferry Lake extended back up the Big Cypress as far as the old river town of Smithland, and that Big Cypress and Black Cypress were both during the period in question interchangeably referred to by surveyors and others, as Ferry Lake.” Evidence was offered tending to prove that the high bank of Big Cypress Bayou at the point of interest here, that is, where the iron axle stake was found (home plate), was above the mean high water level of Ferry Lake in 1833, as well as, above the water level at the time of the trial.

The jury answer to Special Issue No. 1 found that the southeast corner of the Benjamin F. Lynn Survey was at the point the surveyor, heretofore mentioned, located it, that is, where the Lynn southeast boundary line intersects Big Cypress Bayou. Appellant’s point of error numbered 10 and 11 urged that “the trial court erred in its judgment ” by so locating the Lynn southeast corner. These points, as they are understood, assert that as a matter of law the trial record does not support the judgment rendered.

■The contention outlined has several aspects. A primary question is whether or not the jury response to Special Issue No. 1 is supported by any evidence of probative force. The answer must be in the affirmative. The high bank of Big Cypress Bayou in 1838, when the original surveyor located the Lynn Survey’s southeast corner, was well above the mean high water mark of Ferry Lake, as it then existed. Ferry Lake at that time engulfed Big Cypress Bayou, its watercourse and flow, plain, and Big Cypress was considered a part of the lake and its bank was a part of the bank system of Ferry Lake. Clockwise, the patent’s description shows, the directional course of the Lynn survey’s southeast boundary called for it to reach and intersect the meander of the Ferry Lake shoreline, now Big Cypress, at a point where a pine tree marked “BB” stood. The pine tree and the witness trees have vanished, but a clockwise extension of the southeast boundary line of the Lynn Survey along the course called for in the patent until it intersects the meanders of Big Cypress Bayou locates a corner and constitutes valid evidence of the loca*909tion of the southeast corner of the Lynn Survey. The evidence supports the jury’s findings.

Other aspects of points of error numbered 10 and 11 have been examined, as have all other points of error briefed, and no reversible error is found. The judgment of the trial court must be affirmed, and it is so ordered.

. The Benjamin F. Eynn Survey as a tract of land is situated “generally North 45 degrees East and South 45 degrees West.” The boundary line running from the Northeast corner to the Southeast corner is referred to herein as the southeast boundary line.

. Thomas Jordan Inc. v. Skelly Oil Co., 296 S.W.2d 279 (Tex.Civ.App., Texarkana 1956, writ ref’d, n. r. e.) contains a finding of fact in identical language with that introduced in this case at page 284, et seq.