Burnett v. Harrington

Walker, P. J. Com. App.

The ninth assignment of errors is as follows: “The court erred in entering a judgment which is not in accordance with the verdict of the jury.”. This ground is well taken and requires a reversal of the judgment. The plaintiffs relied on alternative prayers for relief upon the facts stated in their amended petition, as follows: “ that the injunction may be perpetuated, and the said piece of land which said defendants are attempting to occupy, to wit, all the land between the westwardly fence of petitioner and the line of B. A. Shepard’s land, and running back as far as petitioner’s fence extends, say one hundred and fifty feet from Liberty road, may be declared a street and so adjudged; but if the court should, from all the facts, be of opinion that said piece of land is not a street, then petitioners pray to recover the same in their own right, and that they may have judgment for all costs.”

The finding of the jury was not a general finding in favor of the plaintiffs upon the facts as they are alleged in the petition, and consequently the verdict does not afford a basis for rendering a decree in plaintiffs’ favor on the first stated alternative prayer; and if it can be made available as a verdict to support a judgment in their favor, it must be applied to the last portion of the prayer of the petition. The verdict finds specially certain facts, which, when considered in connection with the allegations of the petition and the prayer for relief, must be regarded as not passing upon or determining any fact essential to be ascertained in order to determine whether the disputed land had been constituted either a public or a private street. The verdict is as follows: “ We, the jury,- find for the plaintiffs in accordance with the deed to I. C. Lord by William Burnett, and that it embraces the triangular tract as shown on the plat, and that it is not part of the homestead.”

The boundaries of the land, as set forth in the petition under the allegations made concerning the deed in question, are irreconcilably conflicting; the petition at one .time alleging that the disputed lines embrace the alleged street, and at another that the supposed street constitutes the western boundary of the lot which plaintiffs own. The verdict, therefore, does not find any fact in respect to the deed referred to, nor does it find any other fact specially in connection with the facts found in it, from which it may be adjudged that the plaintiffs are entitled to recover “ for a public street, the triangular piece of ground of the plaintiffs, beginning at a corner of the fence of the plaintiffs; thence along the north side of Liberty road fifty-two feet; thence in a northeasterly direction to Harrington’s fence, to a point one hundred feet from Liberty road; thence along said fence to Liberty road, the place of beginning.” See Mays v. Lewis, 4 Tex., 38; Smith v. Tucker, 16 Tex., 594; Brown v., Horless, 22 Tex., 645; McKey v. Welch, 22 Tex., 390; Hall v. Jackson, 3 Tex., 305; Denison v. League, 16 Tex., 408; Mims v. Mitchell, 1 Tex., 443.

Neither does the petition warrant the description given in the verdict of the land as being “ a triangular tract as shown on the plat.” It is only through the evidence in the case that a tract of that description is known of, or that there exists “a plat ” of the premises in question. See same authorities.

The. judgment, in turn, transcends the restrictions both of the pleadings and also of the verdict in nearly or quite every sentence which is employed to describe the “ triangular piece of ground adjoining the premises of plaintiffs.” It must follow and be confined to the description given of the premises by the petition sufficiently, at least, to show that the premises described by the decree correspond with those embraced by the petition.

It is held in. Throckmorton v. Davenport, 55 Tex., 236, which was an action of trespass to try title, that "the judgment which was rendered for the plaintiff so far varying the calls of two of the lines of the land sued for as the same were described in the field notes set forth in the petition, as to adjudge to the plaintiff land which did not correspond with that which was claimed by him, was an erroneous judgment, and the error required a reversal.

In Adams & Wicks v. Cook, 55 Tex., 166, a suit to enforce a mechanic’s lien on fifty acres of land, the premises were described in the petition as “Surrounding and including” the building; an attached exhibit described the land as “ fifty acres fronting on Leon creek, in a square shape.” The decree in favor of the plaintiff described the land and premises as “the building and fifty acres of land surrounding the same, and having a front of one hundred yards on the east bank of Leon creek, and running back between parallel lines for quantity.” Held error.

[Opinion approved January 19, 1883.]

We do not see that a further consideration of the grounds of error assigned is required, the appellants making nó complaint in their brief as to any view held by the court below in respect to the law applicable to the merits of the controversy, or the rules of law which ought to determine the issue.

The result of this appeal will suggest to the parties concerned the embarrassments and difficulties which must ensue on another trial of this case as it is now presented under alternative phases of fact and remedy, if tried before a jury, unless the jury are required to render a special verdict; a verdict which shall be in response to speciál issues, having regard to both issues which the plaintiffs present concerning the legal effect and the true boundaries under the deed from the defendants Burnett and wife to Lord, and under instructions which shall sufficiently apply, accordingly as the evidence may require it, the rules of law which govern in cases of dedication of streets to public uses, and also the rules applicable to the doctrine of estoppel.

We conclude that the judgment must be reversed and the cause remanded.

Reversed and remanded.