*1 the from policy taken policy the the date the obligation cancel its when possession neces- plaintiff, she “was the premiums paid thereon. of had been jury the weekly pre- sarily to to confined bed?” pay insured was a certain to mium, followed disability insurer answered “Yes.” And this was in case the of find to weekly Special asking jury the Issue agreed pay to the a certain insured the the object preponderance of evidence policy the from benefit. think the period was con- continuing- time, any, plaintiff if give to the insured bed, her tinuously necessarily security, confined contract is divisible. and that the * n answered, years, 10 jury “4 connection, Supreme which the In the months, answers said, months.” quote: “The insurer Court also we opinion, simply reflected repudiated jury, unconditionally positively in our undisputed facts, the correctness policy, permit the insured the and refused to by the de- challenged premium payments been there- which has not make further However, pro- in view of action released the insured fendant. under. This reading: “Benefits premiums, policy, further tender of of the making from visions insured day required them, paid policy pay her or will be each if the necessarily confined Yet, illness to make them. if reason of offering from * * * per- from disabled collect the benefits to is entitled to bed insured ** n specified any nature policy, is entitled forming in the the insurer work evidentiary payments, policy if re- think the issues were credit such we do not find nature, required jury paid, quires premiums to be on but such policy. controlling weekly facts. benefits due under ultimate and * *” * shown, the trial heretofore consideration, to find failing After due court plaintiff gave judgment in favor of error, they points defendant’s merit in weekly benefits that the amount of judgment of are overruled four-year period prior accrued within the court below is affirmed. suit, the amount to the institution of less Affirmed. premiums weekly accruing November after So, undisputed facts view of law, applicable as announced rules Court, that the Supreme conclude by the we points consideration should of error under be and overruled. error, In its third defend complains giving ant Special al. v. ARNIM et et STATE al. ground Issue that same was duplicitous, is, submitted two ultimate
issues, weight and was of evidence. Appeals Texas. Civil Court of required jury Issue No. 1 find from Antonio. San evidence, preponderance date July policy plain of insurance was taken from possession by employee tiff’s an of the de Aug. 4, Rehearing Denied fendant, jury answered, “July, to which evidence, undisputed 1931.” In view the submission of this we think issue was really superfluous. The defendant’s own policy manager testified that was taken defendant, up on and canceled orders that, at the time cancellation took premiums plaintiff paid in ad place, had approximately thirteen weeks. vance points error Nos. In complains the giving defendant over Special Issues Nos. ob required effect that the same jections, evidentiary findings and not ultimate facts. jury find asked the Issue whether, of the evidence
preponderance *2 Mann, Gerald C. Atty. Gen., and Cecil' Rotsch, C. Dickson, Fagan and Peter Man-
iscalco, Attys. Gen., Asst. for the State. Rockey Harkey, Sinton, appellant A. D. Aikin. Boone, Henderson, Boone & Davis and. McCampbell, Corpus W. B. all Christi, Sinton, Moss, B. appellees. and W. NORVELL, Justice. questions Two are involved in ap-
peal: (1) Is San Patricio to- Bay? (2) Nueces Did the deeds executed-. conveying H. Drummond Lots Nos. Survey, said remain- W. W. Bell J. 6, 7 and 8 out of the Drummond Subdivi- ing portion within and said lot lies sion of a 4049-acre tract of land vest Survey; of said Sheston No. grantees (and appellees holding under of said Drummond Subdivision also them) riparian rights in and to Survey.” said Sheston No. *3 Bay? Appellees not attack trial do sepa- This is a consolidated Four cause. by out, finding either above set court’s suits, trespass rate similar in nature to cross-point con cross-assignment, and or try actions, brought title were in accord- sequently binding upon us. finding is 5421c, provisions ance with the Article 6, Ann.Civ.Stats., indicated, j, Subdivision Vernon's above the Drummond Sub- As § General Laws 1939, Legislature, pp. division is a resubdivision of a number of 46th 472, Aiken, vicinity surveys surveys allegedly parts 473. A. D. as- or in the who Bay. primarily serted a claim the lands involved under of Nueces are here by Henry Survey a mineral lease executed the Commis- terested in No. Office, Survey sioner of the General Land was and inci- and W. Bell No. W. by named dentally Survey defendant. The State of Texas Attorney its General intervened filed a 7 and 8 of the Drum- Unless Lots Nos. guilty plea. Subdivision, and also mond 2, Bell include the lands in con- jury. Trial was to court without a troversy, appellees Ap- are without title. Express findings fact and conclusions of riparian pellees that Bell No. 3 is assert law were filed. grant, and also that of Sheston Judgment against was rendered and a includes Lot No. 8 No. which below, plaintiffs (in who Cause No. No. of the Drummond Lot Subdivision asserted title to Lots 9 10 of the Drum- Bay, Nueces and is conse- borders on Subdivision, appeal mond was tak- no ad- quently riparian thereto. The State judgment. en from this The riparian, vig- but mits that '6, asserted owners Lots Nos. and 8 orously that Sheston No. is not. contends were, Drummond Subdivisión how- primarily accre- involved are The lands judgment against ever, awarded the State bay along the tions judgment and Aiken. The effect of this recognize establish said lots surveyor Talley, deputy R. In John riparian to Nueces sys- Refugio located series or surveys Hen- appears appellees Starr, contiguous It twelve Arthur tem of Smith, assignee the holders of ry B. Fitzsimmons and Corrie Gordon Boone (involved are the warrants under which owners in various land Lot 5376); May surveys Cause No. Starr were authorized. Patents Connie surveys Arthur are the owners were afterwards issued to Starr of Lot No. these 5375); (involved by in Cause No. Texas. and F. V. State of Smith Arnim and Kathleen Lord Arnim are the surveys were located twelve These (involved owners of Lot No. 8 in Cause the Nueces River Talley near the mouth of 5374). Phillips Petroleum Com- Bay, vicinity some of pany claims a mineral leasehold estate in upon the shore of being them each of three lots mentioned. area with which we line in the shore appears controversy There approximately no runs east are here concerned location of actual various lots in the Tal- survey located The first and west. Drummond ground. Plenry Subdivision Sheston No. ley for Smith However, upon sys- survey the trial a considerable of the Smith the westernmost controversy developed as to the actual for this lo- tem. cation original 1 commences at a lines “No. read as follows: included within the which a lagoon Drummond or marsh from Subdivision. in a stake hackberry The location of these lines in diameter bears with reference 3 inches small was, (327 vrs) to the Drummond 13.76 chs Subdivision E distant how- S 67-¼ ever, 49 E settled the trial diameter bears N. 6 inches in finding another court’s meandering high bluff that “Lot No. 6 of said bank Drummond Sub- thence wholly the river marsh (separated division within said from lies W. W. Bell land Survey larger portion 3. The the distance of about 2 lagoons (421 vrs.) 78- E 17.72 chs S miles) said Drummond Subdivision lies in S 67-½ 2 thence 4.72 the S.E. varas) North corner of (1540 chs. E 64.82 ¾° chs. East 64.00 meandering the shore vrs) the Southeast (112 chs (1072 (1524.4 E 45.00 chs. vrs.) S bears S Bluff the White stake 9-½ vrs.) (465.7 vrs.) to in di- S 26 E 19.55 chs. hackberry 12 inches E and a 44-¾ Bluff which White chs S.E. corner a stake from 7.55 W distance N ameter bears 40-½ 3- ° E, the Nueces (1987 bears the mouth of S chs. North 83.64 vrs.) thence (179 mound, hackberry (in a bears W and a S a stake vrs.) the N.E. corner 23-%° grove) 7 N diameter bears varas) inches 1905.6 80 chs. 88-¾ thence West vrs.), (76.4 chs. thence W distant -3.21 mound—thence a stake and N.W. (3196.4 stake vrs.) 134.19 chs. begin- North vrs.) (1637 68.92 chs. South corner, thence West and mound the N.E. ning.” (1905.6vrs.) to a and mound 80. chs. the stake survey, is not *4 corner, 72.24 chs. thence South N.W. it that is. contend do not appellees Sq. (1720.7vrs.) beginning to the —3.613280 No. Immediately the east of Sheston varas.” 2, No. with 1, Talley Sheston located surveys are a Since three mentioned 2 commences “No. following notes: field may surveys, system we part of one survey foregoing corner of at the S.E. boundary properly the southern consider bluff bank East meandering thence they all three as if were lines of in (309 13.00 chs. vrs.) (563 South chs 23.72 boundary the southern line of one fact (238 vrs.) chs. S. E 10.00 vrs.) N. 62-1/2° Talley’s survey. By combining notes of E (238 vrs.) S E 10.00 chs 85-½ 57-¾ his southern boundaries three sur 24-¾, E chs. vrs.) 7.00 (333 S 14.00 chs. veys, following we obtain the line extend vrs.) (238 10.00 chs. E. (166 vrs.) S 84-½ ing from the Southwest corner Sheston1 (369 vrs.) South 15'.55 chs. E. N. 51-½ 1 corner of Bell No. No. to the Southeast stake (273 vrs.) to corner S.E. 11.48 chs. “Commencing a stake in a la viz.: at bluff, the mouth of the from on the (S.W. goon marsh corner of Sheston or hackberry E. and a bears' S. 3-¾° meandering the bluff bank of 1)No. thence N. W distant 3.15 grove in a bears 20-½ varas; E. 421 high land S S. 78-¾°' 67½° inches, thence vrs.) 6 diameter (75 chs. varas; stake,, North 112 varas to a E. 1540 (2212 vrs.) to the N.E. chs. 93.14 north 2; being the corner of Sheston No. S.E. mound, thence West a stake corner meandering the bluff bank East 563 thence to the N.W. corner (1905-vrs.) chs. 80.00 varas; varas; south 309 N. East 238 62-¾° mound, thence South 69.18 chs a stake varas; varas; 238 East South South 57-¾° beginning.” vrs.) (1647 varas; 85 n ° East 333 South East 24-½° if that the field notes of here remark varas; varas; East 238 166 South 84½° alone, can 2 be considered it No. varas; Sheston East 269 south 273 North 51½° 2 No. ri- hardly said Sheston be bluff; corner varas to S.E. stake Bay is survey. Nueces not called parian 2 (S.E. No. S.W. corner corner Sheston notes and the south bound- the field for in bay meandering 3), Bell thence No. a meander line ary along line consists varas; 1524.4 East South E. shore 9½° along not the shore of the the bluff varas; 26° East 465.7 varas to South clearly evidence shows that at corner southeast No. a stake at the there existed a bluff trial time of 3.” varying height thirty from steep bank appellees’ to be contention that It seems sepa- the low flat land fifty feet above bay Talley meander the begins to shore as bay rating it The indi- Bell, and: corner Southwest at the that a similar condition are existed cations at course, the southwest corner of the Talley makes survey, Talley’s although, the time of with Southeast corner Bell identical separat- flat low land the area of point the common or cor- No. of Sheston prob- from the shore line was ing ably bluff accepted being upon as must be ner it nearly great pres- as is at the so Talley in the although Sheston bay shore may comparative- have been a It time. ent refers “S.E. Corner 2 field notes No. strip in 1838.
ly narrow
From this it is inf er-
the bluff.”
on
stake
the south line of Shes-
Immediately
tially argued
the east of
en
bay
have
shore
Talley
admittedly
Bell No.
an
run
located
No. must
ton
survey. Talley’s field
Southeast
*5
and the Southwest corner of Sheston No.
n atleast
upon the
a
thereof
part
statement,
2 by
meandering
his
“thence
the
*6
roads, emphatically
of
marginal
for the use and benefit
as
by
stated
plat
to
shown
cited,
adjoining
Supreme
the
of the
tracts which
Court in
cases
the
the owners
upon
out-
case.
dependent
application
streets for an
has
to the facts of this
such
ingress
purpose
importance
and for that
here
Drum-
egress
primary
and
Of
is
let
Upon map
placed
his
intention.
he
mond’s
alone.”
upon the south
the Kaleta-Portland road
“now
be no doubt that the
to
There seems
boundary of
lands
in his
ern
the
described
by
to Drum-
road” referred
existing public
Smith,
is, upon
shores
that
the
deed from
Kaleta-Portland road shown
mond was the
nothing
retained
of the
Drummond
found,
plat. The
court
and
trial
on the
boundary
the
of the southern
line of
south
evidence,
finding
support in the
has
such
being
depicted
map
on the
which is
road
permissive passageway
awas
that this road
boundary
of
the northern
line Nueces
objection by
public without
the
used
the
applicable
principle
marginal
to
roads
The
through
the land
which it ran
owners of
applied
Supreme
of
the
Court
was
wholly
until was
abandoned a number of
it
to
Washington to
fact situation similar
years ago.
Gif
the record here. See
that disclosed
contends that as the
out
The State
deeds
Horton,
Court
April
Rehearing May Denied notes distance west of this line some by Talley. such> designated follows: Some survey “Commencing at corner unusual, may be rather but must been entertained view have James Peeks, Surveyor Pa- themselves admit no County of San other construction. W. when, simply Talley’s he We think this method located tricio tying Fulton Sheston No. into Bell of the Coleman 2,No. intention was to establish the actual his of the western stake corner—a Southeast corner of at a Northeast 'a called for Bay. point Peeks’ 273 varas the shore of Nueces north Southwest cor- set on n callfrom the Southwest per- may corner Sheston ner of Bell While it say on the shore Northeast corner missible that the Southwest corner to his varas, indicating designated E. of Bell line was S. Southeast 66½° point 2 from a corner of Sheston No. belief that Sheston his shore, Southwest Talley bluff, from its although varas E. 766 called for 'S 66½° lay along point it can not be to its Southeast said varas (the north actual Southeast corner .shore of Nueces 2) despite was on the shore maps General Copies certain point call for the bluff. This Tal- were (compiled after ‘Land Office ley definitely placed upon the bluff he did maps purport These troduced in evidence. points intervening all between said 2 or of Sheston to show location
Notes
notes Shes- with his field of connection In bank.” bluff a 2, Talley set forth 1 No. No. .ton n small surveys, scale the these two of sketch 2 We is hold Sheston No. not a A 2,000 the to inch. (cid:127)employed being varas riparian survey. Weatherly Jackson, v. 123 n similar No. Bell made of was also sketch 213, 259; 71 Tex. S.W.2d v. Burton Mc designated on these Bay is not .3. Nueces Guire, S.W.2d 238; Tex.Com.App.,41 State n small sketches, might well be said and it as Post, 468, 407; Id., v. 106 Tex. 169 S.W. is a they that 1 indicate Sheston that Tex.Civ.App., 401; 169 S.W. Anderson v. they indicate say to that riparian as 460; Stamps, Slaughter, 19 Tex. Brooks v. riparian. is 2 or a thereof .Sheston No. 632; Keystone Tex.Civ.App., 218 S.W. by Tal- matter controlled We think the Co., is v. Lumber Mills Co. Peach River they conclusively ley’s 64; field notes and that Tex.Civ.App., 96 S.W. 7 Tex.Jur. riparian 2 is not a show that Sheston survey. accept appellees’ contention If we upon question The second involved this Bell 3 is corner of the Southwest that proper appeal relates the construction of to shore, 2 call the the on conveying the from H. Drummond deeds J. (reversed) North 273 varas. is therefrom predecessors 7 8 to the in title Lots actually 2 of Sheston No. 'The conveyances appellees. of described These close Talley’s designated 273 varas North of by plat lots reference to the the the 2, which Southeast Map on in Drummond subdivision file the cor- designated is the and actual Southwest Patricio in Records San Vol. repeat the Bell No. 3. two calls ner of 15 In page holding thereof. view our 2 the corner of Southeast out, question impor- set is above the point given the call from said first connection with tance in that varas; Talley: East 369 by North 51½° ripar- the lies within Lot which and all (thence) 273 varas to Southeast cor- South State, while 3. The survey, Bell No. ian ner; North varas the (thence) a sur- that Bell admitting apparent it Now is Northeast corner. the in the lots none of vey, contends far as of land is concerned so enclosure riparian. are Subdivision Drummond corner of the actual Southeast contention seemingly involves a point by a where established is at the line under a person in a third paramount title North East course intersects the the 51½° plea. guilty call, by the established North which is line conceded that H. It seemed be Drum- varas north of the corner of Southwest J. acquired title to the Sheston No. mond running in Bell No. action virtue of a deed from designated immediately a then Smith, conveying north, a total of 4049 reversing Francis running his direction description. acres a and bounds description away metes simply doing the with south call concerned, Further, the contained as the enclosure of land is sofar grantor grantor when an "intention a retain apparent that the deed, this it is except strip conveyance in or such a out of impression lands that the the was under clear, expressed or were is his intention here involved particular area made the courts, convey- respected by Bay. By will be the hut where riparian to Nueces acquired title intention is from the such not discernible therefore Drummond ance employed conveyance, language the the shores the 3 which extended to' Bell No. map presumption grantor is that the ac acted in In filed Drummond of the or public policy with subdividing fifty-three cordance established lots the the plat into conveyed him State and did not to retain 4,049 Smith. intend acres entire strip convey- ownership of a narrow of land plat referred to in the This is very slight be of no value predecessors in title. would bene appellees’ ances to fit him. thereto This is basis the rule map nor the dedication Neither the generally grantee original abutting lot any mention of makes roadway (an easement) patented. takes fee the lands were a under which roadway roadway subject center of map depicts bordering however, roadway When, easement. immediately Lots Bay lying south of along land margin end runs a tract Near eastern Nos. 7 and conveyance map, there road,’ appears the owner executes shown on of, Portland,” application principle above while on the west- “To notation grantee in the “To Kaleta.” serves to vest appears the notation discussed ern end tract, land including entire roads or streets fee of the other shown Certain Cantley underlying marginal roadway. reads dedication map my purpose Company, “It and I do Production 135 Tex. v. Gulf as follows: 912; (to Campbell, 135Tex. streets Cox v. hereby dedicate the additional S.W.2d existing public road) the rule which are 361. We think’ S.W.2d the now
In our notes bay shore, place controlling and these field notes are matter. Further deemed unneces- discussion is sary. holdings expressed We adhere to the opinion. original Appellees’ motion rehearing over- is overruled. We also rehearing rule the filed herein motion by appellants. RECONSTRUCTION v. NEWTON CORPORATION. FINANCE