Awalt v. Alexander

On Motion for Rehearing

Appellant reiterates it to be an undisputed fact that the true boundary between the properties is at the location fixed by Surveyors John and West, as shown in Exhibit 55. But testifying to the contrary was W. H. Burke, a licensed engineer and employee of the City of Dallas for more than 48 years at time of trial. His statements were to effect that in 1922 his predecessor had made an arbitrary change concerning the corner of original Block 31; doing so by using an angle of 90 degrees off of Commerce Street; that this made a difference of about 1.4 foot variance in the distance along Commerce Street and the distance along Elm Street, which is not shown in the original record; that as a result the cross marks used by-witnesses John and West as a starting point were that distance East of the true corner; making Awalt’s East line 1.4 feet further East than it should be. The jury’s answer to issue 3 was consistent with above testimony of Burke. In this connection we have concluded on re-examination of the record, that as found by the trial court and undisputedly, the boundary line does run “Northwardly from said point in the North line of Elm Street at an angle of 90 degrees, 7 minutes, 18 seconds, a distance of 80.05 feet * * *•”

Also in original opinion, in the paragraph discussing the encroachment or 8 inch overhang, we mistakenly stated that appellant did not plead limitation with respect thereto. The limitation statutes were pled, but no evidence was adduced thereon which could have supported a jury verdict.

Otherwise appellant’s motion for rehearing is overruled.