Kirby Lumber Corporation v. Lindsey, 455 S.W.2d 733

Kirby Lumber Corporation v. Lindsey

455 S.W.2d 733

Tex.

1970

Check Treatment

*1 mаny great There are be built. would may ac that a railroad which hold cases al., KIRBY LUMBER CORPORATION et completely Petitioners, purchase gift land

quire irrelevant condemnation from these apart v. Harris, v. Lumber Co. statutes. Calcasieu Respondents. al., Earl LINDSEY et Bright (1890); S.W. No. B-1206. Ry. Northern International-Great well v. Supreme Court of Texas. (1932); Co., 121 Tex. 49 S.W.2d June Co., Ry. A. H. & S. v. Galveston Stevens Rehearing 22,1970. July (Tex.Comm.App.1919). S.W. Denied the ma- premise from which The second some reasoning

jority starts its the use of gained by may be

intention Rail- “Texas and New Orleans

the words in the places in some Company”

road deed, “Texas and the words

Dickerson places. other Railroad” in Orleans

New me, complete sequitur, non

To is a —a any- If distinction without difference. strengthens the

thing, constructiоn it estates; two different parties intended

i.e., way right (the for the railroad fee and a ties)

railroad tracks and areas, depot, storage ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍other facili- for the railroad company.

ties Rio Bravo

It was the contention it (or

that since owns the fee both if) fee, easement, e.,

sides i. it owns the center of the easement

the minerals to Weed,

strip under Rio Bravo Oil Co. (1932). Tex. 50 S.W.2d here majority holds that Bravo

Since estate, purpose no

owns no fee useful analysis

would be served opinion. There are several in- also

Weed raised,

teresting questions and which are opinion the Court of

discussed in regarding Appeals, parties,

Civil default

judgments, filing disclaimers. points, holdings no are these

Since made on purpose useful served would be

discussing concurring in a them [dissent- opinion.

ing] least, held very

At the should acquired simple upon railroad fee

condition, performed, now two adjoining conveyed

tracts the center tract right way.

as a

CALVERT, McGEE, J., J., C. join concurring opinion.

in this *2 Morgan, Fountain, &

Walter B. Cox Cox, Gaines, Roady, Joyce G. Joe Houston, for petitioners. Arthur, Lindsey, T. Port E.R. John Biggs, Liberty, respondents. WALKER, Justice.

Kirby Earl Corporation Lumber sued Lindsey trespass try et al in title County. Tyler recover 68.38 acres of land Rеfining Company Humble Oil & Kirby’s adopted named defendant pleadings plain- be as a will referred to question tiff. Aside of limitation later, rights that will discussed parties turn the location of the west line Liberty County Land senior School Survey which No. the record title to by plaintiffs. owned Defendants are portion record owners the eastern junior E. T. R. which R. Co. No. adjoins jury The west. found 9 was original located on the sur- defendants, veyor as contended rendered in favor of defend- judgment was their title to and ants on cross-action for re- controversy, hereinafter land acres. Court 68.38 possession strip, cross-hatched as the fered to 431 S.W.2d affirmed. Appeals Civil plat: following reverse. We *3 contend Plaintiffs the evidence in. dia. marked O bears S. E. dis. 56. 5Vw establishes a matter law that X-Y another 18 in. marked X dia. bears vs.; west line as located N. Liberty 9 57 E. dis. thence south 89° 9½0 original surveyor ground. east min. place vs. to the be- surveyed by ginning.” 10 were Ma- gruder in 1844. Al- Wagner and the Magruder thus called for the south line dridge surveyed Magruder about were of Liberty 9 to run from the southeast Aldridge four but months later west, a creek crossing was lated abandoned. The E. T. R. R. times, bottom once and a creek three with Surveys 2 and surveyed 13 were Mc- crossing branch line, along farther surveyed Bride in also 1870. McBride point southwest corner witnessed Survey E. T. R. R. land was by pines 28S. 3.5 varas and N. W. not patented on his field T. notes. E. 63 W. 7.5 varas. His west line called was plat R. R. shown *4 run to thence north point to a in 5015varas Tatum, surveyed by County M. C. Sur- the south line the Macomb for his of north- veyor Tyler County, April 20, of 1954. corner, pines by witnessed located S. Magruder work of and both McBride 56 E. 5.4 and varas N. 57 E. 9.1 varаs. Macomb, was tied the north to the D. B. surveys Liberty The railroad adjoining surveys all most senior of here involved. on9 the west will by be referred to section surveyors present Three in the testified numbers. McBride’s field notes of Section case and all as location agree to 1 begin call in to the south line of the “B”, southwest corner of the Macombat Liberty Macomb at the northwest corner of “A”, southeast corner of the Macomb at 9. He for called witness at point trees “D”, Liberty the southeast corner оf 9 at but not by Magruder those called for at the and Liberty the course of the line south of Liberty corner northwest of 9. The field undisputed, 9. It is moreover, that notes of run Section 1 thence south on the northwest and southeast corners varas, west line of 1900 Liberty thence “M”, Wagner respectively. at and are “N” varas, varas, west 1900 north thence ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍1900 Magruder’s Liberty field 9 notes of read and E. “thence at 1700 vrs. S.W. cor. as follows: said Macomb and 1900 vs. to “ * * * place beginning.” Beginning at corner McBride thus called S.E. survey; for his said D. B. northeast be Macomb’s thence corner to 200 varas east corner from east of Ma- 950 vs. stake which a the southwest corner comb, gum 20 X but the black in. dia. marked bears N. northeast corner of Section by 1 as pine 58 E. vs. him on 15 dis. and a marked O is 404:46 vs.; bears 12 E. dis. 2 east of the corner N. thence southwest south suspended Macomb. He 2 5000 to corner from which a Section from vs. stake pine 24 in. dia. marked bears E. from Section O S. Section 13 72 begin Each in dis. calls the west line of pine vs. another dia. mark- 18 in. 2%o Liberty ed 9 at the southeast cornеr of vs.; X bears S. 47 W. dis. thence 5%o bottom, adjoining section to the north. The lines west at creek creek 217 vs. at 640 length each are called to varas in S.W., 8 be 1900 vs. wide course at same 730 vs. according points creek, creek, and to run at 900 same at a vs. 3700 compass. branch, branch S. at a at 5000 c. vs. pine

corner stake from which a 10 in. dia. surveyors marked bears an- O S. 28 vs. dis. who testified three 3¾0W. other pine Savage, X in are and Coats. in. marked bears N. the case Hunter dia. 7 n dis.; by plain Savage W. vs. Hunter thence N. 5015 vs. were оffered tiffs, boundary corner defendants. stake the south of said was called Coats Tatum, who survey pine report Macomb’s a also have the from which 20 We the time of trial. This calls for his northwest and at southwest was deceased exception report Magruder’s is admissible as an corners.1 He concluded that Ray, hearsay original at “X” rule. McCormick corners are and “Y”. 2d Evidence, Law of ed. Texas § dispute as to much There is little or no Hunter, surveyor Kirby, is a be- who ground. the evidence found gan comрleted it his work surveyors agree that a marked All pine either found no 1954. He the east line “Z” and between “W” “Y”, stump pine he did find “X” line as located Sections and distances called holes the courses many years It was assumed top

McBride. witness trees. The Magruder for his Liberty 9. west line of Z-W the depth off scraped had soil been however, attempt Beginning was inches, perfect out- perhaps leaving “the six Magruder’s footsteps. The to retrace made in- stump.” In one line of burned in the course of this informatiоn obtained off spur running stance there root convinced owners work hole, of the holes each line of 9. De- X-Y the west deep sufficiently firm and found charcoal suit agree, and present fendants did not that was person to determine “for was filed. pine stump hole.” “D”, agreed Beginning at southeast Tatum reached the same conclusion west sub- going His field Savage years had earlier. several stantially Magruder’s fits for the creek calls *5 begin point of *6 9, in the east Liberty and west lines of He accepted locating similar evidence in moreover, an excess of varas in the 153.29 1, McBride’s east line of 2 and Sections south line much likely is more than the 13. accept Coats refused to X-Y as the shortage of 61.81 varas that if would result

west line of Liberty (1) 9 because: accepted “W” were as the corner. there is an excess between “D” and distance “Y”, and (2) had not he seen the re- There was never dispute as ported by Tatum. to the Savage location of line the before Although Savage was called as a witness 1949, did his in work and it is clear the that by plaintiffs, he did for his work prior acceptance 1949 line McBride’s marked the owner of the minerals under the was due to the that it was true belief Wagner and 1 Sections His dis- Long acquiescence line. may support 13. covery and reporting stumps, of the as parties well inference that the established as the conclusion he reached on by agreement, the basis line it but does not constitute presence, of their were in- adverse to the evidence of the locаtion the true line terests his employer.3 The stumps at the sense always that trier fact is at “Y” reported Tatum, were liberty who had occupied to conclude that line demonstrated establishing interest in a con- is the true applicable line. The rules are flict Liberty between 9 and McBride’s stated in Great Plains Oil & Gas Co. v. Although except 3. agreements not establishing: (1) material as W-Y-3 question Savage’s credibility, boundary it should the Liberty between Section 13 pointed boundary be (2) out 9, his work was ac- X-4 as the cepted and Liberty the various owners executed between 1 Section 9.

739 324, effectively Co., is Liberty 153 west corners of Tex. S.W. 9 Foundation Oil 137 destroyed reports. 452, by his own 2d as follows: “ *** acquiescence in line Long a in Ma- The for course and distance calls may inferred is from which it evidence Wagner, Al- gruder’s field *7 9; Liberty of trees corner at the southwest for, including of called the west line Magruder’s call for (4) did ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍not McBride Turner, Liberty 9. See Tex. Maddox v. of at northwest witness trees the comer 279, presumption gen 15 S.W. 237. This entirely Wagner, new the but he markеd erally purpose making serves the useful of trees; for the called (5) witness McBride junior survey conform to the boundaries the 13 to corner of Section be southeast of adjoining survey an and thus senior Wagner, but the corner of the northwest avoiding vacancy or It must al conflict. of 13 as located southeast corner Section ways regard be used with due the rule for east ground is varas by him on the 207.73 that in junior surveys the recitals cannot Wagner— the the northwest corner of of be admitted create an the аmbiguity to varas; exactly of another almost error calls, location, change the aof senior for distance (6) and McBride’s call survey. Refining See Humble &Oil Co. v. 14 is ex- almost north line State, Tex.Civ.App., (wr. 162 S.W.2d ref.). for He called actly 200 varas excessive. presumption In this instance the that the and the northwest McBride located northwest south- between 2517varas “W” corner ground 10. The Liberty (3) appropriate actual “X” and “Y” are re other, distance is lationship varas. 2317.95 to each the south lines 9, Liberty Macоmb and to the south discrepancies McBride’s 200-vara Macomb, west corner the the and to measured distances 1900 varas cannot Wagner; corners of the (4) presence the explained They as normal excesses. re- of the marked line from “Z” to “W” flect pattern mistakes of and a substance fully explained; (5) reports and McBride’s only that could have resulted confu- area, show surveys that other senior in the surveyor sion of as to where he was including surveyed by two Magruder short with reference tо corners 9, completing his ly survey Liberty after evidently which he McBride called. approximately are 200 varas west of where something found “X” that he at took to be thought they McBride were. It is our southwest corner Macomb. opinion that these circumstances and the explain why This would he said “Z” was other introduced carry evidence the case corner, 200 varas east Macomb be- beyond coincidence into the realm approximately cause it is on legal certainty, and we hold that the record ground from “Z”. But “X” to there establishes conclusively that X-Y is having no been corner evidence west line 9 as Liberty located Ma marked at “X” the northwest except * * gruder. “A certainty reasonable is all McBride’s field notes 9. Since the law requires. beyond Conviction all Magruder’s thought Wag- show that he also peradventure unnecessary.” of doubt ner approximately 200 varas Asher, 538, Gates v. 280 S.W.2d east its ground position, likely it seems 247, 249. that he mistook northwest corner of Liberty 9 for the southwest corner of Defendants claim title also under three-, five-, ten-year Macomb. statutes of limita- response

tion. In special to the sub- issues mitting contentions, these jury found: calls McBride’s corners (1) possession that satisfy sufficient to proba “Z” and “W” have three-year 1905, began 10, on August statute force, tive acceptance of Z-W August 1908; (2) terminated on years the line over the was due the mis possession satisfy sufficient taken belief that it is the true our line. In five-year began on August statute opinion support there is no evidence August 1915; and tеrminated on jury’s finding is the that Z-W (3) possession sufficient satisfy by Magruder 9 as ten-year 10, 1952, began August statute ground. proof identifying Without August 10, and terminated on 1962. Plain- trees, locating Magruder’s witness there say tiffs is no support there evidence to fore, his calls for distance would control. findings. these stumps If corresponding to Magruder’s calls for had witness trees been found patented August Section was “Y”, this might be written off as a mere Lindsey, under O. whom defend- J. coincidence. Here (1) we find: evidence ants description claim. The contained showing presence conclusively patent is identical with McBride’s *8 correspond at both “X” that family and “Y” field notes. his Lindsey O. and J. Magruder’s calls; surveyor-wit all the (2) lived on the or section from 1902 1903 nesses with in agreeing October, that these until The land 1915. was there- locations, 9; tenants, X-Y the of west line after rented the to various 4. ease, The line from “Y” to “X” courses N. 0° and “Y” is some or 8 7 5,098.75 13' 37" E. varas. “X” is about west of the extended west line of the Wagner. 15 varas north of the south line of the by Macomb as located the witnesses

741 acknowledg- he restricted actual, executed more visible show evidence does not 13, September for ment 1911. strip appropriation continuous years while least three period of at any con only partial When there lease. property was under the by possession surveys, flict between actual title junior the holder of the within occupancy by O. During period of the J. not conflict is grant of partially but not on area Lindsey, was located orchard an boundaries by extended construction to thе partially on land to strip though holder field, grant of residence, junior even a cultivated west. The of possession of senior title is of not were west improvements all other Barton, grant. Peyton of his v. any part six about strip. orchard covered The here, Where, of as the owner acres, to its exact 53 Tex. 298. as proof but there is any of grant possession is in Lindsey, the son senior T. location. John extending into major part grant but not “the of his Lindsey, that testified O. J. conflict, strip. possession area part” actual orchard was on part give the holder for the orchard of the conflict will not a search Hunter had made possession of fence title and old constructive junior old wire and found some rows, may old fence the entire latter On the basis of the area conflict. The rows. acquire only portion than acre limitation by he estimated that less one title strip. disputed actually occupied by him. of the conflict the orchard was 346, 6 Jackson, Anderson v. 69 S.W. Tex. 23, 1914, Lindsey exe- April O. On J. Possession and the orchard use of plaintiffs’ pred- Gallup, to David L. cuted might thus land entitle defendants to title, acknowledgment ecessor in be suf it covered but would not in itself 9, tenancy covering all by perfect strip ficient title the entire by O. of the land use thereafter made J. possession, and not have adverse we do by ripen into limita- Lindsey not title could description legal of the orchard. ac- contains an record also tion. The tenancy to Gal- knowledgment of executed orchard, from Aside 27, 1908. January lup E. L. Lowe on running strip use made of the was for Liberty “on all of 9 This instrument covers activity. sporadic cattle timber has been said I now reside.” It which time, and it strip was enclosed at the not tending to show recitals in ancient deeds well settled limitation title cannot ownership possession acts and other acquired by grazing land. unenclosed See may prior the dates of instruments Deep Tex. Corp., Rock 153 Orsborn v. Oil See the facts. be received evidence 281, Lindsey 267 T. S.W.2d John 2, Bruni, Tex.Civ.App. 83 S.W. v. State 37 his father “utilized” the timber testified that taking (wr. ref.). In this instance Rails for until left in 1915. strip acknowledgment of execution split for the house fences were and timber evidence, tenancy circumstantial constitutes land, but the occasional was cut from the per- recitals, its that the entirely aside purposes or for cutting of timber for these possession. son the same was signing not sustain a claim domestic use will 1940, Evidence, 3rd ed. Wigmore Pearson, See v. title See Broom limitation. Law 157; Ray, Texas 2 McCormick 790; § Sellman Tex. S.W. 1374; Wickes, Evidence, 2d ed. 86; McElroy, § Hardin, 58 Tex. Bartinе v. Hearsay, Ancient Documents and (no Tex.Civ.App. S.W. being no There n. 12. Co., L.Rev. Texas N. R. writ); Haynes v. & O. R. presumed contrary, it is evidence to (wr. ref.). Tex.Civ.App. S.W. 427 possession continued Lowe tenancy timber was also ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍sold O. part of 9 under least J. survey Company until covering Tyler Lumber agreement Lindsey County the entire *9 prior accomplish locating We this by to and at not dis- decree some time pine Magruder for his by closed trees which marked company the evidence the cut over Actually, west corners no trees company entire section. The also had a there, stumps; are disputed strip. tram road across there are no surveyors two there; they ran in had have testified that have they “Locomotives other logging very unearthed the equipment, facilities and roots of those same teams and surveyor so trees. A third has forth.” tells us piling had a family contract The surveyors with found the holes of the first company two and loaded several cars surveyor nothing —but The piling more. third is no railroad. There however, prоof, could find evidence of the remains when or for how long any ground trees first operations where the of these were con- significance two had been by Lindsey by digging. ducted either The family or Tyler if roots could be doubted the third Oper- Lumber sur- County Company. veyor ation was correct when he testified that coupled the tram road with the cutting particular “you in this go area could on timber other uses of the given strip might you course a certain distance until possession, constitute adverse stump but the cоuld find set holes that record would pos- does not that this show fit because the was country session continued for at three covered years least before trees.” Lindsey T. executed the ac- John knowledgment April 23, of tenancy on We choose believe whom to and whom Dargan See Co., Keystone Mills thought disbelieve. I had 627; Houston Oil Co. v. £.W.2d jury. the function of the Billingsley, Tex.Com.App., 213 S.W. 248. We hold that sup- there no evidence to No 9 was located other corner port possession adverse findings. by stumps. holes by or even The other corners from which the court works were judgments of the courts below are long acceptance reversed, because and the cause is remanded usage. A juror, maybe trial reasonable court with instructions to render judg- lawyer expect surveyor, would the same ment in of Kirby Humble, favor in ac- respected on factors the west line. respective interests, cordance with their for line, always This clearly W-Z marked possession title of the tract of ground, accepted has been as the actual 68.38 acres described in the first amended dividing sur- the two original boundary between petition.

veys years. Kirby for used that eighty over Dissenting opinion by REAVLEY, J., prepared line when deeds timber were joined CALVERT, J.,C. purchase Lindsey STEAK- 1929 for its timber. LEY, Humble leased in 1932 Lindsey J.

using Kirby the W-Z line. A tenant of placed his west at- fence the W-Z line REAVLEY, (dissenting). Justice agent. Kirby’s direction of Since 1905 Lindsey when moved on Section John The court decides here that McBride was owners of 9 have timber cut not thought where he he was when he sur- linе, to the W-Z and the owners veyed in 1870. It decides have sold to that timber line. that all of the adjoining owners have been Lindseys part had an orchard wrong eighty years. for It rejects the in dispute years. land number of jury verdict and the judgments reverses redrawing surveyor company Until started the trial court and the court of ap- civil map in one peals. there was The west of Liberty line 9 has been moved out X-Y scepter 9 and was at W-Z. law. *10 locate was entitled jury I would boundary affirm W-Z.

judgment.

CALVERT, STEAKLEY, J., J.,C. in this dissent.

join SO

SAN ANTONIO CONSERVATION INC., Petitioner, CIETY, al., OF SAN et

CITY ANTONIO Respondents.

No. B-1928.

Supreme Court of Texas.

May 27, 1970.

Rehearing July 8, Denied Antonio, for Hardy, San

Harvey L. petitioner. Walker, Atty., City Crawford

Howard C. Antonio, Reeder, Atty., City San Asst. B. respondents. notes 14 call to сrossing and the three creek cross- bottom “original at of reference the SW along. ings farther The marked east line Land Liberty County School #9 surveys placed the as McBride railroad by pine a a concrete monument from which by ground the at “W” was determined on stump N. stump pine and W. 3.5 vs. S. 28 4,938.19 surveyors plaintiff’s to one of is original bearings.” This 63 W. 7.5 vs. is varas west “D”. There evidence no to point map “Y” the A attached plat. on “D”, 5,000 and corner at west of “origi “Y” Tatum’s field notes refers as to 5,153.29varas “D”. “Y” is west of indicated, these previously nal As corner.” made in He sur- field notes that the was Savage survey did his work 1949. show testimony of veyed ground April 20, Macomb, Sections pine Wagner Liberty 9 and Hunter indicates that there were no Aldridge. also stumps After locat- at “Y” that Hunter the abandoned date. ground at ing original northwest southeast and testified that Tatum was Wagner, north ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍from corners he went “Y” before but it not clear whether or stumps locate corners the latter corner to Tatum found on an earlier visit simply he found find Liberty points 9. At “X” “Y” determined from he did what precisely men pine stumps stumps what described as that had at locations he stood Magruder’s tree corresponding witness with tioned. * n * calling stump slight they depres 1. I’m not A. them one were a the other they parts stumps By slight depres cleaning or holes because were sion. off the stumps tap stump I first time was there. of the still sion the root was

Notes

[*]

[*] there.

[*]

[*] stump you point there to “X”? Q. Now referred about at Q. How you pretty stumps point “Y”, point it would At “X” was much and some A. stumps you way. found as evi- the same Both the —there was desсribe those stumps dence; you there was can? both still best * n * They enough evidence; stump point “Y” were at there was a A. tap stump part stump had of a one we not hole. and, sticking ground above the root still spurs; they throughout opinion sup- Emphasis well, were them side 2. we call sticking plied. in above the still area, junior surveys. railroad had done Evidence of Coats other work Liberty stumps by surveyed the line of was found but he south also Hunter. Coats’ He, surveyors, stumps nothing like ac- failure find the other detracts cepted testimony and ran from the and Hunter Savage “D” as southeast corner report along the south line 4935.46varas or the of Tatum but shows “W”, digging where he marked line run- someone had been the area. found the presence ning stumps precisely north and south that was established The cor- by responding Magruder’s as McBride the east of the railroad calls witness surveys. trees is as a He also established the evidence measured from “W” “Y”, finding He matter of it to be law. 215.10 varas. stumps found but stump holes at “Y” upon The evidence defendants which simply excavations that indicated extensive rely (1) acceptance must is: Coats’ Z-W digging. accepted as He the south- “W” line; (2) long acquiescence; and (3) west corner but he makes McBride’s placing calls the corners clear upon that this is based not his con- Liberty 9 at “Z” and In “W”. view of surveyor upon clusion as a recognition qualified manner in which Coats testi- plus the fact others that he himself mony, it is clear that his conclusion is based nothing worthy acceptance. found more entirely acquiescence by almost ad- say Coats was frank to that he would have joining Although owners. he reluctant regarded “Y” as the southwest corner accept X-Y the distance because stumps report- 9 if he had seen the excessive,” “D” to “Y” was he “so much ed Tatum. admitted that is the rule excessiveness rather than exception. point At one then, summary surveyors In three of the expressed opinion that 153.29varas area, Tatum, who worked Hunter and excess distance from “D” “Y” not “Y” Savage, concluded that is the southwest considering country much rugged “the Coats, fourth, corner of coming across very those creeks” and is question sufficiency does not close. In undisputed view excess stump boundary. holes to establish a

notes parties by established agreement that the 10, controlling if Liberty given dridge and line, from such line as the true such effect, place the line of would may a find acquiescence jury a court Wagner extended west 46 varas west Bohny is line used true line. that the relationship be- line of 9. This 80; 528, Petty, 17 v. 81 Tex. S.W. Liberty 9 Wagner and the tweeii Russell, v. 18 Schunior S. Savage prompted go north from 1430, 1480, 484; pp. W. 69 A.L.R. Note Wagner search corner northwest line acquiescence But other 1515. It of the southwest support true line will not find McBride, was also known to who ing agreement establishing of 'an line as the south and east lines of his 13 Section boundary when there no other line of same follows: “Thence E. N. agreement acquiescence evidence of than wide vs. branch 4 vs. 1750 11] [Section affirmatively and when it shown that course and at cor. S.E. 1900 vrs. N.W. use line resulted not from Wagner’s Survey, which A. a stake from agreement but from a mistaken belief 4 dia. brs. S. E. white oak in. parties it that was the true line. Stier 25 E. vs. dist. 18 in. dia brs. N. & 589; Latreyte, v. Tex.Civ.App., 50 S.W. 4 vrs. N. at vrs. S.W. dist. Thence Malone, Tex.Civ.App. Hunter v. League, and Liberty County cor. of School 709; Corporation 108 S.W. Gulf Oil v. beginning.” vrs. Company, Marathon Oil Tex. Similarly, the true S.W.2d when following clear- circumstances show location conclusively proven, the line is as to the ly that McBride was mistaken acquiescence mere in another line in the (1) 9: the west line of locаtion of mistaken it is true line belief 1 as lo- northeast corner Section support will not a finding that such other varas east cated McBride 404.46 Miller, is the true line. Buie Tex. v. corner, whereas he the Macomb southwest Civ.App., (application S.W. 630 varas; did (2) called to be McBride refused); Thompson writ of error trees at Magruder’s not call witness Allen, Tex.Civ.App., 111 S.W.2d 791.” northeast corner trees; (3) Mc- entirely marked new witness course, There is a presumption, of Magruder’s not witness Bride did call for actually surveyed that McBride all the lines