Lee v. Nickelberry , 255 S.W. 486 ( 1923 )

LEVY, J.

(after stating the facts as above).

The appellant challenges only the correctness of the foregoing finding of fact and that portion of the judgment reading, “said old fence row being 34 varas S. of the new fence.” The proposition is that the testimony does not support the finding of the court. It is concluded that appellant’s contention should’be sustained. On the part of the appellant and his witnesses the testimony had to do with the fact that “the old fence row,” originally made in 1870, was the true heau'right survey line, and his “new fence,” made lately, is built practically on this “old fence row.” On the part of appellee and his witnesses the testimony had to do with the fact that “the old fence row” was the true headright survey line, and with the further-fact that appellant’s present fence, as located, is not on “the old fence row,” and that the strip of land the appellant is trying to claim is north of “the old fence row.”

Rut we are unable to find in the statement of facts any evidence to show or going to show that this “old fence row” 'is 34 varas,” or any stated distance, south of “the new fence.” The burden of proof was upon the appellee. It appears that a map was used in the trial court, and the witnesses testify to lines in the map; but distances are not stated, and the map does not appear on appeal.

On the proof as made in the record, we can do no other than reverse the judgment and remand the cause, which is accordingly done.