George v. Thomas

| Tex. | Jul 1, 1856

Wheeler, J.

The demurrer was general: and it is well settled that, upon appeal from the judgment overruling a general demurrer to a petition, no grounds of demurrer will be considered which do not go to the plaintiff’s right of action. It cannot be denied, that, if, as alleged, the division line between the owners of the upper and lower halves of the league had never been run, it was the right of the parties to have it run, according to the original conveyance from Hunter to George ; and that it was a wrong in any one to obstruct and prevent the running of it. It is objected, that it is not averred what injury the plaintiffs have sustained, or are likely to sustain by reason of the alleged refusal of the defendants to permit the line to be run. But it is a matter of which the Court may judicially take notice, and need not be informed by averment, that the owners of lands thus situated will be likely to sustain injury by not having the boundaries of their land ascertained and defined. That is the probable consequence and. the reasonable presumption.

The right to have the line of division run, in such a case, and to maintain an action, if necessary for that purpose, rests on the same principle as the right to an action for specific performance, where there is a contract to convey. The deed from Hunter to George, though an executed conveyance, pass-sing the title, did not ascertain the boundaries of the land, conveyed, but only gave a description by which they might be ascertained, by an actual survey thereafter to be made, in the manner indicated. As to the running of this line, it was in the nature of an executory contract, which may be enforced by suit for specific performance.

Whether the plaintiffs should not have stated their case with more particularity, especially the acts of the defendants, of which they complained, it is not necessary to consider,- as the petition, in this respect, was not questioned by exceptions. It was sufficient on general demurrer.

But the case stated in the petition manifestly was not the case made out in evidence. It was proved incontestibly that the dividing line had been run as early as 1835 : and it was not proved that the defendants had been amicably requested and had refused to consent to the running of the line, or to permit it to be run. The line had been actually run and marked ; was capable of being found and traced ; some of the defendants had occupied up to it since 1835 ; it was known to the plaintiffs and had been recognized by them ; it had even been traced by a Surveyor at their instance, who met with no interruption from any of the defendants, while tracing the line actually run, but only when he undertook to run a new line. The essential averment of the plaintiffs, on which their right of action depended, that is, that the line had not been run, was thus disproved; and this was an answer to their case.

But it is objected that this line, which, it is admitted, was commenced, was never completed. Upon this point the evi= dence is not conclusive. Some of the witnesses found and traced the line a considerable part of the distance, and found what they took to be the line nearly the whole of the way.— There seems little reason to doubt that the line was completed, though not very accurately run. Messer proved the running of it a part of the way; and the plaintiffs’ witness, Uollinsworth, testifies that he found and traced the line a considerable part of the distance from the beginning point, or corner on Peach creek. He also found a corner marked on the base line, and a line running from it, approaching the line from the beginning corner, but which, if extended, would not meet the latter. This proves simply that the line was not run with perfect accuracy ; but it by no means proves that the running of it was not completed. Such inaccuracies, and even greater, as this witness, who was the District Suraeyor, testifies, are not uncommon. They do not invalidate surveys. If they did, there would be little security in titles ; especially in the earlier titles of this country. _ Even if the line cannot be found in its whole extent; or if it was not actually run through yet as its two extremes can be found, and it can be traced for a part of the distance, it is not to be disregarded. In such cases, the course to be pursued is plain. The marked lines are to be followed as far as any trace of them can be found, and the connections made. The lines actually marked must be adhered to, though they vary from the course. (2 Overt. 804 ; Newson v. Pryor 7 Wheat. 7" court="SCOTUS" date_filed="1822-02-11" href="https://app.midpage.ai/document/newsom-v-pryors-lessee-85352?utm_source=webapp" opinion_id="85352">7 Wheat. 7.) A line actually marked for the survey is to govern the boundary, although not a right line from corner to corner. Where a line has "been marked only a part of the way, the boundary for the residue of the distance will be a direct line from the termination of the marked line, to the point of intersection, or to the corner called for. (2 Bibb, 261 ; Preston’s heirs v. Browne, Id. 498; 4 Id. 503 ; 4 Monr. 29; 7 Id. 333.) Where a division line exists, at its two extremities, and for a principal part of the distance, it will be considered a continuous line. (6 Wend. 467" court="N.Y. Sup. Ct." date_filed="1831-01-15" href="https://app.midpage.ai/document/rockwell-v-adams-5513593?utm_source=webapp" opinion_id="5513593">6 Wend. 467.)—• Nothing can be more clearly or certainly settled, than that, where a marked line can be found, it shall be pursued, as far as may be done, in its whole extent; but if it does not extend to the point of intersection, then it must be continued until the intersection is made, taking the course called for or required by the deed. (1 Marsh. 382 ; 4 Monr. 39.) And the rule is the same, whether the deed or conveyance refer, for its boundaries, to the marked lines or monuments, or they be afterwards marked and established by the parties. (13 Pick. 267 ; 12 Mass. 469" court="Mass." date_filed="1815-10-15" href="https://app.midpage.ai/document/makepeace-v-bancroft-6404384?utm_source=webapp" opinion_id="6404384">12 Mass. 469 ; 17 Id. 212.) If, therefore, the line cannot be traced in its whole extent, still it is to be observed, and cannot be departed from, where it can be found and traced ; especially after such a lapse of time, and so long continued occupancy in reference to it.

It is by no means certain, however, from the evidence, that this line may not be traced with reasonable certainty, in its whole extent, by the use of sufficient industry and attention. It can be traced far enough, at least, to show that it was actually run; and it is proved indisputably, that it was run as the dividing line between the proprietors of the upper and lower halves of the league, nearly a quarter of a century ago ; it has been occupied by the owners of the upper half ever since, and has been acquiesced in by all the parties in interest. Where the parties have agreed upon and marked a boundary line, and the possession is in accordance with it for such a length of time as may give title by disseizin, the line cannot be disturbed, although found to be erroneously established, unless there be clear proof that the possession was not adverse. (4 Shep. 23.)

But it is objected that the owners of the lower half were a married woman and a minor ; and there is no proof of their consent to the running of this line. There is proof, however, that Lacy, the husband, assented to the running of it: and if it were necessary to the just decision of the case, as we shall see it is not, it might very well be held that the husband is competent to represent his wife in the matter of running a boundary line. If done fairly and honestly, and acquiesced in "by her, it ought to be as binding npon her as upon others.— So an infant, acquiescing in the settlement of boundaries, after coming oí age, will be bound by it. If he do not dissent when he comes of age, but acquiesces, he is forever bound.— (Brown v. Caldwell, 10 Serg. and R. 114.) As has been said, “ These settlements of boundary are common, beneficial, ap- “ proved and encouraged by Courts, and ought not to be dis- “ turbed, though it was afterwards shown that they had been “ erroneously settled, if they have been acquiesced in for a num- “ her of years.” “ Convenience, policy, necessity, justice, all “ unite in favor of supporting such an amicable adjustment.”— (Id. 116.) It is beneficial to all concerned, as well married women and minors as others. It is to be observed that neither Mrs. Lacy nor her daughter ever expressed any dissatisfaction with this line, though the latter was of age before she parted with the title. They are not the parties who have complained. They and their husbands acquiesced in it; and had they retained the title to the present time, they doubtless would still have acquiesced in it. It cannot be doubted that its existence was known to them. There is no pretence of any fraud, or unfairness in the running of it; and the inequality it produces in the quantity of acres of the respective proprietors, the extent of the survey being considered, is, at most, very inconsiderable. The acquiescence of the parties under whom the plaintiffs claim, for so great a lapse of time, under the circumstances, ought to bind them, if there were no evidence of the express assent and recognition of it by the plaintiffs’ vendors. But there is evidence of such assent and recognition, which relieves the case of all difficulty. In the deed of partition between Mrs. Lacy and her daughter, then also a married woman, this dividing line is expressly recognized. One of the calls of the deed is “ to commence on Peach creek, at the di- “ viding line between the upper half and the lower half of the “ said league No. 3, thence up the said dividing line,” &c.— And again, “ to commence on the corner of the dividing line,” &c. They thus refer to this line as the boundary of their land; and recognize it as such by their deed executed and acknowledged with all the formalities necessary to pass theii* title. And afterwards in their deeds of conveyance to the plaintiffs, they again refer to and convey by this line as their boundary line. By commencing at the “ dividing line ” and running “ up the dividing line ” they of course mean a real, not an imaginary line. It is thus placed beyond doubt or cavil, that the line was known and recognized by them as their true boundary, by which they conveyed to the plaintiffs. After such a recognition of it, they could not have disturbed it if they would. Much less can the plaintiffs, claiming under them by deeds which convey the title by this boundary line. They knew what they were buying, and by what line it was bounded ; it was a well known line ; the occupancy by the defendants upon it was notice to them of their understanding of it; their own deeds called for it; they have obtained all they bargained for and have no cause to complain. They cannot set up the rights of the married women, from whom they purchase, to maintain rights in themselves, which their vendors neither asserted, nor pretended to convey to them. They cannot complain that the former did not sell to them all they might have sold by insisting upon a different division. They hold to the boundaries called for in their deeds; and that is all they can ask, however it might-have been with their vendors. They, in a word, have not shown the pretence of a right to come in, at this late day, and under their recent purchases, to disturb the peace of the neighborhood, and unsettle land marks and boundaries that have been established and acquiesced in for nearly a quarter of a century. If suits of the character of the present were encouraged, the mischiefs to which it would lead, it may readily be conceived, would indeed be of serious consequence. But fortunately for the peace of society, the well settled principles of the law, no less than reason, justice and sound policy, forbid the Courts to encourage or countenance by'their sanction, pretensions, so adverse to private rights and the public tranquility.

It is clear, beyond controversy, that the dividing line or boundary, which it was the professed object of this suit to run and establish, had been run, established and acquiesced in by those under whom the plaintiffs claim, long before the institution of this suit; whether actually run and marked in its whole extent from corner to corner, is immaterial; as enough was done to enable the parties readily to ascertain where it was intended to run, and must have run had it been extended through. It was well known to the plaintiffs, as is shown by the evidence, which not only disproves the gravamen of their complaint, and defeated their right of action, but made out and established incontestibly, the case of the defendants. It results that the verdict of the jury was contrary to law and the evidence, for which the judgment must be reversed.

An examination of the rulings of the Court upon the defence, of the statute of limitations, as applied to the evidence, would, it is believed, lead to the same conclusion. But the defendants do not need the aid of the statute to protect their rights and it would be an unprofitable consumption of time, to examine the evidence and the rulings of the Court upon that subject.

As the case must be remanded, it is proper to notice a question raised upon the trial and noticed in argument here, upon the admissibility of evidence. The plaintiffs objected to proof of the declarations of Tone, the Surveyor, when running the line in 1835, to the effect, that he was making the survey to establish the dividing line, between the upper and lower halves of the league, for the parties, and by their request, as they were dissatisffed with the old line : which, it seems, had been run in 1832. The bill of exceptions does not state on what ground the evidence was objected to. The objection was overruled, and rightly. If it was intended by the objection, that Tone ought to have been produced as a witness, it should have been so stated, and his absence might then have been accounted for. He was a public Surveyor, and his declarations while making the survey, were clearly admissible as a part of the original res gestae. (1 Greel Ev. 145 n.) On these questions of boundary, the Courts have gone much further, and, under certain restrictions, have freely admitted hearsay evidence to establish old surveys and boundary lines. (Ib.; 1 Cow. and Hill’s Notes to Phil. Ev. Note, 186 to p. 239; Blaythe v. Sutherland, 3 McCord, 158.) In the last case cited, the Circuit Court rejected the testimony of a witness, who detailed the information he had received from the Surveyor as to the situation of the lines, because the Surveyor’s death had not been proved ; but the appellate Court held the testimony admissible • and the omission to prove the death of the Surveyor appearing to have been inadvertent, they granted a new trial, with a view that the formality might be supplied. In that case the information was derived from the Surveyor after the running of the lines ; it was, therefore, but heresay ; and not, as in this case, a part of the res gestae ; which is always admissible, not as secondary, but as primary evidence.

The judgment is reversed and the cause remanded.

Reversed and remanded.