Harris v. Kiber

On Motion for Rehearing.

In our opinion in this case filed on February 18, 1915, in which the judgment of the court below was affirmed, we held that the evidence was sufficient to sustain the finding of the trial court that the line between the lands of plaintiffs and defendants is located as claimed by plaintiffs.

[3-5] A further investigation of the record has convinced us that we erred in this holding. The evidence is sufficient to sustain the finding that many years ago plaintiffs’ predecessors in title located the line as now claimed by plaintiffs, but there is no evidence that defendants, or any of their predecessors in title, agreed to or acquiesced in such location, or that any of them ever knew that such location of the line had been made.

The record shows that in 1846 Mrs. Emily M. Perry and Mrs. Eliza M. Hill, who were then the joint owners of the upper or northwestern one-half of the Robert Kuykendall league of land in Wharton county, executed a deed of partition by which there was conveyed to Mrs. Hill the upper one-fourth of said one-half of the league. The land so conveyed to Mrs. Hill is described in said deed as follows:

“Beginning at the upper corner of said league on the river and running westwardly along the line thereof to corner; thence southeasterly along the line of said league to a point from where a line drawn parallel with the upper line of said league to the river, and thence up the river to the place of beginning, will in-elude one-fourth of said one-half league of land. * * *”

By this partition deed the remainder of said one-half of the league was conveyed to Mrs. Perry. On January 10, 1851, the administrator of Mrs. Hill conveyed to John W. Harris and E. M. Pease the land conveyed to Mrs. Hill by the deed of partition before referred to. In the administrator’s deed the land is described as follows:

“One-eighth of a league of land situated on the west bank of the Colorado river, in Wharton county, being the upper one-fourth of the upper half of the league granted by the government to Robert Kuykendall, and bounded as . follows: Beginning at the upper corner of said league on the west bank of the Colorado river, from thence a line to be run westwardly along the upper line of said league to the upper back corner, thence southwardly along the back line of said league to a point on said line from whence a line drawn parallel with the upper line of the league to River Colorado, and thence up the river with its meanders to the place of beginning, so as to include one-fourth part of said upper half of said league.”

The executrix and trustee under the will . of E. M. Pease, by deed of date September 22, 1898, conveyed to the widow and children of John W. Harris the one-half interest owned by E. M. Pease in the land described in the deed next above mentioned. Defendants in this suit hold under this deed and by inheritance from John W. Harris and his wife, Annie P. Harris. The grantees in the above deeds unquestionably acquired title to one-fourth of the upper one-half of the Kuyken-dall league located in accordance with the description contained in said deeds. If by agreement of defendants, or those under whom they claim, with the owners of the adjoining portion of the one-half of the league, the division line between the upper one-fourth and the remaining portion of the half of the league had been fixed and marked on the ground at a place other than called for in the deeds to the upper one-fourth, defendants would be bound by such boundary or division line, and they might be so bound by acquiescence in a division line fixed by the owners of the adjoining land, but in the absence of any evidence of agreement or acquiescence they cannot be held to any line other than one located in accordance with the calls in their deeds. Lagow v. Glover, 77 Tex. 450, 14 S. W. 141; Horst v. Herring (Sup.) 8 S. W. 307; Kampmann v. Heintz (Civ. App.) 24 S. W. 329; Donaldson v. Hall, 14 Tex. Civ. App. 336, 37 S. W. 16.

The deed from Robert Kuykendall to Stephen F. Austin, under which Mrs. Perry and Mrs. Hill held title to the upper half of the Kuykendall league, describes said half league as follows:

“From the upper comer on the W. margin of the Colorado river the surveyor come’d; thence S. 20° W. 4500 vrs., fol’g- the upper bound of the aforesaid sitio to the S. W. corner; thence S. 70° E. to a point from which a line thrown N. 20° E. to the said Colorado river; thence following the turns of the river up to the place of beg. at the upper comer of the said sitio, to comprehend the upper or northern half of *677the aforesaid sitio, hounded on the E. by the said Colorado river, on the S. by the lower half of my said sitio, and on the other side by vacant lands.”

It is clear from this description that the dividing line between the upper and lower half of the league was not fixed and marked on the ground prior to or at the time this deed was executed, and there is no evidence in the record showing when or by whom said line was actually located and marked upon the ground. The evidence does show the existence of an old line dividing the upper and lower portions of the league, located near where a line run in accordance with the calls in this deed would place it; but there is no evidence that defendants, or any of their predecessors in title, agreed to or acquiesced in the location of this line, or ever recognized it as the dividing line of the league. Such being the state of the evidence, defendants are no more bound by this line than by the old line which plaintiffs claim is the division line between defendants’ one-fourth of the upper half of the league and the remainder of said half of the league. The evidence shows that up to 1903, when the defendants established the line now claimed by them and took actual possession of their land, claiming and holding it up to said line, this half league of land was unoccupied. None of the defendants lived in that neighborhood, and there is no evidence of any intercourse between them and the owners of the adjoining land, or that they had any knowledge of the doings or claims of plaintiffs or any of their predecessors in title. The undisputed evidence further shows that the location of the line as claimed by defendants does not give them more than one-eighth of the league, the quantity to which they are clearly entitled under their deed, in the absence of any evidence that they or their predecessors in title had agreed to or acquiesced in the location of the division line at some other place than that called for in the deeds. The undisputed evidence further shows that defendants had held continuous adverse possession of a portion of tlie land in controversy for more than 6 years before this suit was brought, claiming to the boundaries called for in the deeds under which they hold, and paying all taxes thereon as they accrued.

These facts alone would give defendants title to all of the land embraced within the boundaries of the deeds under which they claim, even if the evidence was sufficient to show that the line had been actually located at a place other than that called for in defendants’ deeds, under circumstances binding upon defendants. A line located by agreement or acquiescence of the parties in interest would upon the issue of boundary be held binding upon the parties and their privies; but such location of a line would not change the boundaries of the land as defined in the deed, nor prevent one holding and claiming under the deed from acquiring title by limitation to all of the land included in its boundaries, if the other requirements of the statute of limitation are shown. Jones v. Andrews, 62 Tex. 668; Bean v. Whitney, 25 Tex. Civ. App. 72, 60 S. W. 782.

It follows, from the conclusions above expressed, that appellants’ motion for rehearing should be granted, our judgment of affirmance set aside, the judgment of the court below reversed, and judgment here rendered for appellants; and it has been so ordered.