Allen v. Koepsel , 77 Tex. 505 ( 1890 )

HENRY, Associate Justice.

—This was an action of trespass to try title brought by appellants, who claimed that the land in controversy formed part of a league granted to Moseley Baker. The defendants pleaded not guilty and the statutes of limitation.

The cause was once before appealed to this court, and a statement of it will be found in 68 Texas, page 446.

The land in controversy lies between the Guadalupe River and a slough lying west of the river. The Baker title calls for the river, but defendants contended in the court below that the surveyor who located it mistook the slough for the river and meandered that instead of the river.

It was reversed on the former appeal because the court charged the jury that they should find for the plaintiffs if they showed title to the Baker league, unless they should find for the defendants under their pleas of the statute of limitations.

The land between the slough and the river was located with a certificate by one Saunders. The defendants undertook to prove title by limitation under the Saunders location, beginning with one Young who held under him. Subsequently Young sold his interest to one Thiele, whx> went into possession, and testified that he held for Saunders and signed and delivered to him the following instrument:

“I have this day taken possession of the tract of land known as the Island lying between the Moseley Baker league and the river. I am to hold said land for Frank Saunders free of rent until such time as he may want it. It is the same land taken possession of by J. W. Young for said Saunders April 23, 1873.

“I am to have for my own use any drift wood that I may want, and also to put on it any improvements I may wish, with the privilege of using them, but under no circumstances to cut any timber or let any one cut.

[Signed] “William Thiele.”

The first error assigned is as follows: “The court erred in charging the jury at Request of the defendants that the lease taken by Thiele from Saunders and read in evidence ‘ shows a privity between Thiele and Saunders, and will enable defendants to set up the statute of limitations under the Saunder’s location/ because there was no lease taken by Thiele from Saunders read in evidence, and such a charge was calculated to mislead the jury.”

The agreement signed by Thiele very clearly showed that he was holding the land as the tenant of Saunders, and fully sustains the charge complained of.

The court charged the jury as follows: “In determining the true boundaries of the Baker grant the sole question for your consideration is to ascertain exactly where the surveyor who laid it out ran his lines; and if you find from the evidence that the surveyor ran the lines so that they included the land now in controversy, then your verdict must be for plaintiffs, unless you find for defendants under their pleas of limitation. But if you find that said surveyor ran the line along said slough, as claimed by defendants, then you will find for-defendants, paying no attention to the question of limitation. If the surveyor who surveyed the Baker grant mistook the slough for the river and fixed the boundary on said slough and actually ran the line of the grant along it instead of running it with or to the river, then the line so run would be the true line of said grant, although the lines may call for the river in the grant.”

The defendants introduced evidence tending to show that the surveyor of the land for the Baker grant did in fact meander the slough instead of the river. We think the evidence justified the charge, and that it was correct.

We find no error in the proceedings, and the judgment is affirmed.

Affirmed.

Delivered May 30, 1890.

W. S. Goodrich filed motion for rehearing, which was overruled.