On Motion for Rehearing.
Appellants contend that the evidence was of such a character that the issue of agreed boundary should have been submitted to the jury. There is absolutely no evidence that any owners of the Bowman and Reese league ever agreed with any owners of the lower Harrison quarter league survey that the line contended for by defendants was the tree line. There is no evidence that representations were ever made by any owners of the Bowman and Reese survey with regard to the boundary line contended for by defendants which were acted upon by defendants in such a way as to estop plaintiff from denying the location contended for by defendants to be the correct one. The evidence at its very best (for it is indeed vague on this point) shows that A. H. Pierce upon one occasion, no effort being made to fix the time even approximately, in a conversation with Peter Bundick, recognized the line contended for by the Bundicks as the correct line, by notifying Bundick to remove improvements placed by him below the line.
The witness Harris testified that, during all the time he worked for J. E. Pierce, neither J. E. Pierce nor A. H. Pierce disputed the correctness of the Bundick land. It is impossible to tell whether he meant, by “Bun-dick land,” the land inclosed by the Bundicks or the line to which they claimed; but, in either event, he fails to show that either of said parties was ever called upon to his knowledge to either recognize or repudiate the line.
Mrs. Clementine Bundick testified that a Mr. Hoppe ran a line below the Bundick house, and told her he was working for Pierce; that she asked him where the line was, and he said it was “down there” — she did not know how far south of the house.
Acquiescence, under circumstances not amounting to an estoppel, is a mere fact to be considered by the jury in determining the question of boundary. Schunior v. Russell, 83 Tex. 83, 18 S. W. 484; Camp v. League, 92 S. W. 1066; Atascosa County v. Alderman, 91 S. W. 846; Vogt v. Geyer, 48 S. W. 1100. When the location of the line is doubtful, it is entitled to great weight; but when, as in this case, the evidence leaves no room for doubt as to the true location, proof of acquiescence in the erroneous line would not support a verdict in favor thereof. So in this case no verdict for defendants could have been permitted to stand upon the vague and unsatisfactory testimony introduced in an effort to show acquiescence by the Pierces. Not only was the ¡Line contended for by plaintiffs conclusively shown to be the correct line, but the evidence of acquiescence therein and recognition thereof by the Bun-dicks was overwhelming. The Bundick heirs partitioned and divided the Harrison lower quarter league among themselves, exactly as same was fenced by plaintiff on the lines contended 'for by plaintiff. Said heirs executed leases according to said boundaries, and finally sold the land according to said boundaries. The fence built along the line contended for by plaintiff was erected by plaintiff by virtue of an agreement whereby several of the Bundick heirs bound themselves to keep up the fence. In fact, it appears that H. M. Bundick, who was absent from Matagorda county from 1887 to December, 1910, was the only one of the Bundick heirs who, prior to the institution of this suit, repudiated the line claimed by plaintiff ; such repudiation being evidenced by erecting a fence about 600 varas south of the true boundary line.
Appellants contend that the inclosure of the Bundicks, in so far as it extended into the Harrison survey, was surrounded by a wire fence, and therefore this court should find that such fence was not put there until about 1S80. The record is not cited in support of this assertion. There is no evidence to show that the land in .the Bundick inclosure out of the Harrison survey was inclosed at a different time than that out of the Bowman and Reese survey. All the testimony tends to show that it was made at the same time. The only testimony in regard to the kind of fence around the inclosure is that of the witness Black, to the effect that when he saw the inclosure in 1902 the 63 acres around the house was inclosed by fences— “some wire and some rail fences.” It could not be expected that the fences erected in 1852 would still exist in 1902.
Appellants contend that there is no possible way to reconcile the description of the land sued for in the petition and in the cross-action so as to uphold the description in the judgment. They set out at considerable *1037length their contention, and say that this court has permitted a judgment to stand which awards appellee a strip of land 292 varas in width by 5,250 varas in length, not described in the cross-action. Appellants again overlook the fact that they alleged specifically that the land sued for by plaintiff was a part of the land sued for in the cross-action, and that the remaining land sued for in the cross-action lies immediately west of the 577-acre tract sued for by plaintiff.
The plaintiff’s description calls for a certain well-described southwest corner, and the distance has to give way to the call for the well-described corner.
We deem it unnecessary to discuss the other contentions made in the motion for rehearing.
The motion is overruled.