On Motion for Rehearing.
In appellant’s motion for rehearing our attention is called to testimony found in the statement of facts which was not referred to in appellant’s brief, nor otherwise brought to our attention before the filing of our original opinion, and which tends to contradict the testimony quoted in our opinion showing that the line claimed by appellee and found by the trial court to be the dividing line between the land of appellant and ap-pellee was established by the commissioners of partition who partitioned the land in 1895 under the orders of the district court of Harris county.
In view of this contradictory testimony, we feel constrained to withdraw our former holding that the evidence compelled a finding by the trial court that the line wás estab*109'lished by the commissioners of partition. While this contradictory testimony is, in our opinion, of little weight, we cannot hold that it does not raise an issue as to whether the line was established by the commissioners, and we are not authorized upon the evidence as a whole to set aside the finding of the trial court that the line was not established by the commissioners. But this reversal of our fact finding does not require a reversal of the judgment. As stated in our original opinion, other findings of fact by the trial court, which are set out in the opinion, sustain the judgment.
We adhere to the conclusion that the rule which confines a plaintiff in an action of trespass to try title to proof of the title pleaded by him is not applicable in this case. The petition accurately describes the line claimed by plaintiff and alleges that this line was fixed and established by the commissioners of partition in 1895 and has been continuously recognized and acquiesced in as the true division line by plaintiff and appellant’s predecessors in title. If the evidence shows that Mrs. Sweeney knew of the location of the line and has recognized it as the dividing line between her land and that of appellee, and such location and recognition of the line inured to her benefit or to the detriment of appellee, its location is now fixed regardless of whether it was run and established by the commissioners of partition. The line being accurately described and identified in the petition, proof of the allegations of recognition and acquiescence by Mrs. Sweeney entitles appellee to hold to this line. If the line had been established by the commissioners of partition, reeognh tion and acquiescence on the part of Mrs. Sweeney need not have been-alleged or proven. But having alleged and proven recognition and acquiscence of such character as to establish the line, the allegation that it was established by the commissioners becomes immaterial. Plaintiff having sought to establish the line on two grounds, each of which was sufficient in itself, appellant cannot claim a fatal variance between the allegations and proof, because the evidence fails to establish the line on both the grounds alleged. There was no exception to this pleading and no objection to the evidence introduced by plaintiff tending to show recognition and acquiescence in this line by appellant’s predecessors in title. The undisputed evidence shows that Mrs. Sweeney was on or near the land when it was divided by the commissioners in 1895, and that she was in--sisting on having the dividing line fixed and marked. She was in Texas again in 1897 and in 1910 looking after her interest in this and adjoining lands.' In 1908 or 1909 she joined in leasing the northern portion of the original tract to the San Jacinto Rice Company and received rent for 8 years on all the land in the tract covered by the lease which was east of the line claimed by appellee. This line so divides the land as to give Mrs. Sweeney and her children a larger acreage in the northern portion of the tract , than would a. line run at the variation called for in the report of the commissioners of partition. There is no evidence that any revenue was derived by appellee or her predecessors in title from the land now claimed by appellant.
We think the trial court was. warranted by the evidence in concluding that-Mrs. Sweeney knew of the location of the line claimed by appellee, and, having recognized this line and received benefits for a' number of years from its location which would not otherwise have accrued to her, she should be held to have acquiesced in its location, and neither she nor appellant can now be heard to complain that it was not accurately located as called for in the report of the commissioners of partition.
The motion for rehearing is refused.