Floyd v. Rice

Dec 15, 1866
Versions:28 Tex. 341
Coke, J.

—Of the various errors assigned, it is deemed necessary to consider only the following:

1. That the court erred in оverruling defendant’s exceptions to plaintiff’s petition and amendments.

2. That the court erred in refusing the 5th, 6th, аnd 7th instructions asked by the defendant in the court below.

3. That the court erred in admitting ‍​‌‌‌‌‌​‌‌​‌​‌‌​​‌‌‌​​​‌‌‌‌‌‌​‌‌​‌‌​‌​​‌​​​‌​‌​​‌‍the testimony of Delilah Beаrd.

4. That the court erred in refusing a new trial on the _ ground that the verdict is contrary to law and evidence.

Thе 1st assignment is answered by the record, which shows no action of the court below on defendant’s excеptions. Under the rulings of this court, they are presumed to have been abandoned, and not brought to the notice of the court. (Carter v. Carter, 5 Tex., 93.)

The 3d assignment will, for convenience, be next considered. This brings in questiоn the propriety of admitting the testimony of Delilah Beard. We are of the opinion that the admission оf it was erroneous, because of the interest of the officer, Patterson, who took and returned her deposition, he being a, surety on appellee’s (Rice’s) bond for cost in this case. But we do not bеlieve its admission such an error as requires a reversal of the judgment.

*343The testimony of this witness tends exclusively to establish an agreed boundary between Allen Beard, her husband, and William James, when they respectively оwned the tracts of land in question. She testified to ‍​‌‌‌‌‌​‌‌​‌​‌‌​​‌‌‌​​​‌‌‌‌‌‌​‌‌​‌‌​‌​​‌​​​‌​‌​​‌‍this point alone. The jury by their verdict found and established anоther and entirely different boundary from that which her testimony would have established. Her testimony would have established the old bois d’arc hedge as the boundary line agreed on between Beard and James. The jury found the old colony line, ten links east of the new hedge, to be the true boundary. So far from being influenced by her testimony, the finding оf the jury is contrary to it. Therefore the appellant could not have been injured by its admission, and has nо cause to complain of it. (Davis v. Loftin, 6 Tex., 496; Patton v. Gregory, 21 Tex., 519.)

The 2d assignment alleges error in the refusal of the court to givе the 5th, 6th, and 7th charges asked by the appellant on the trial below.

The effect of the 5th and 6th charges, if given, would have been to instruct the jury, that the recognition of and acquiescence in a certain line as the true boundary line by the parties for the periods of time named therein (three to five years) would have the effect to establish the line thus recognized, although variant from the true line.

This is not a suit for lаnd; the question in the case is one of boundary. There is no conflict of title. Each of the parties аcknowledges the title of the other to the land designated in his deed. The contest is waged for the purрose of ascertaining and establishing the common boundary recognized by both titles. On ‍​‌‌‌‌‌​‌‌​‌​‌‌​​‌‌‌​​​‌‌‌‌‌‌​‌‌​‌‌​‌​​‌​​​‌​‌​​‌‍this question of the loсality of the boundary, the acquiescence of the parties in or their recognition of a pаrticular line is evidence which should have great weight in determining their boundary, affording, as it does, a strong prеsumption that the line so recognized is the correct line, which presumption is *344strengthened by the lapse of time. (Bolton v. Lann, 16 Tex., 96; George v. Thomas, Id., 74.)

We are aware, however, of no rule of law which fixes either three or five years as the period when this presumption оught to become conclusive.

Other things than the mere lapse of time enter into the consideratiоn of this question. Each case must furnish its own rule, to he deduced from its own facts, circumstances, and surroundings, by the court and jury. In this case, the court charged the jury substantially, that acquiescence in and recognition оf a particular line by the parties raised a presumption that the line so recognized is the true linе, which presumption, after the lapse of considerable time, becomes conclusive.

The appellant, at all events, has no right to complain of this charge. If there be error in it, it is in his favor. It gives him thе full benefit of all the proof made in the case on this point.

The 7th instruction was substantially given in other portions of ‍​‌‌‌‌‌​‌‌​‌​‌‌​​‌‌‌​​​‌‌‌‌‌‌​‌‌​‌‌​‌​​‌​​​‌​‌​​‌‍the charge. There was no error in refusing these instructions.

The 4th assignment 'is not well taken. Under the charge of the court, which is believed to be substantially correct, it was competent for the jury to find the оriginal boundary line between the two tracts, and designate its locality, or either one of the other two lines set up respectively by the parties, and alleged to have been agreed on or acquiesced in accordingly, as in their “judgment the testimony would warrant.”

There was a mass of testimony before them, much of it in irreconcilable conflict, and their verdict is not without testimony to sustain it. A former trial of this casе was had with the same result, and a new trial was granted. Ho good can result from a reopening of this litigation; the costs of court already greatly exceed the probable value of the land in contrоversy. Public policy, no less than pri*345vate interests, requires an end put to litigation of this character at the earliest moment consistent with the ends of justice. We "believe that the justice of the case has been attained. It is the peculiar province of the jury to decide upon the credibility and weight оf conflicting testimony; and, upon principles well established in this court, their verdict in this case should not be disturbed. (7 Tex., 4; 8 Tex., 228; 19 Tex., 101; 23 Tex., 641.)

The other assignments present no ‍​‌‌‌‌‌​‌‌​‌​‌‌​​‌‌‌​​​‌‌‌‌‌‌​‌‌​‌‌​‌​​‌​​​‌​‌​​‌‍points worthy of consideration.

There is no error in the judgment, and it is

Affirmed.