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other calls been for the cardinal points of 8. APPEAL AND ERROB ( 1064*)-HARMLESS the compass alone, we would not feel au

ERROR-ERRONEOUS INSTRUCTIONS.

Where there are two grounds on which the thorized to change such other calls upon a

successful party may properly recover mere presumption that the surveyor in com- finding by the jury in his favor, and the court pliance with a directory statute intended to on appeal does not know whether the first was make the surveys square.

controlling, it will not set aside the judgment

for error in an instruction thereon. We see no reason for changing the conclusion arrived at in our original opinion, Error, Cent. Dig. $8 4219, 4221-4224; Dec.

[Ed. Note.-For other cases, see Appeal and and therefore overrule the motion for re Dig. $ 1064 ;* Trial, Cent. Dig. 88 475, 525.) hearing.

Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

Action by Morris Rosenthal and others ROSENTHAL et al. v. SUN CO. et al.

against the Sun Company and others. From (Court of Civil Appeals_of Texas. El Paso.

a judgment for defendants, plaintiffs appeal.April 3, 1913. Rehearing De

Affirmed. nied May 1, 1913.) 1. EVIDENCE ($ 386*)-PAROL EVIDENCE-DE

Presley K. Ewing, A. L. Jackson, John CREE.

Where the calls in a partition decree, sup- B. Warren, H. J. Dannenbaum, and Fisher, ported by a map expressly made a part there- Sears & Sears, all of Houston, for appelof, are unambiguous, extrinsic evidence that the lants. S. H. Brashear and Carlton, Townes survey occupied some other position was inadmissible,

& Townes, all of Houston, and Greer & (Ed. Note. For other cases, see Evidence, Minor, of Beaumont, for appellees. Cent. Dig. $8 1678–1697; Dec. Dig. § 386.*] 2. BOUNDARIES (8 40*)-LOCATION-QUESTION

HARPER, C. J. This was an action in FOR JURY.

In trespass to try title involving the lo- the form and with the averments of trespass cation of a boundary between a tract set apart to try title, by Morris Rosenthal, William by a partition decree and the adjacent tract, Sporn, Rannie Mooney, joined by her husthe question of the location of the boundary band,'J. E. Mooney, Susan West, joined by held for the jury under the evidence.

[Ed. Note. For other cases, see Boundaries, her husband, Fred R. West, Brack HarCent. Dig. &$ 196–204; Dec. Dig. $ 40.*] grave, and the minors, Urilder, Nobles, and 3. BOUNDARIES (8 3*) — CALLS — BEGINNING Wilson Hargrave, by their guardian, ClemCORNER.

entine E. Majorowitz, suing as or in the The beginning corner of a survey is not usually of any more importance in determining right of the heirs of Mary Hargrave, dethe location of the survey than any other cor- ceased, against the Sun Company, J. R. per therein,

West, and C. H. Howard, to recover a strip (Ed. Note.-For other cases, see Boundaries, of land 90 feet wide off of and across the Cent. Dig. $8 3–41; Dec. Dig. $ 3.*]

north end of a tract of 39.304 acres out of 4. BOUNDARIES ($ 40*)–QUESTIONS FOR JURY the James Strange survey in Harris county, -LAYING OUT AND PLATTING LANDS.

Where the laying out and platting of lands allotted to the children of Mary Hargrave into subdivisions is one piece of work, but there (hereinafter called the Hargrave tract), by is uncertainty as to the location, the question the district court of Harris county, on is for the jury.

January 22, 1894, in cause No. 14,271, en[Ed. Note. For other cases, see Boundaries, titled Geo. H. Hermann v. W. T. Payne et Cent. Dig. $8 196–204; Dec. Dig. $ 40.*] 5. APPEAL AND ERROR (8 837*)_HARMLESS

al. (hereinafter called the Hermann-Payne ERROR-INSTRUCTIONS.

partition suit). The court on appeal, to determine whether Plaintiffs alleged that there was, after a charge complained of was erroneous, must de- said Hermann-Payne partition suit, a partitermine what issues involved were necessary tion among the owners of said Hargrave to be passed on to enable the trial court to render a proper judgment.

tract, in cause No. 34,907, in the district [Ed. Note.-For other cases, see Appeal and court of Harris county, entitled Mary Elzina Error, Cent. Dig. $8 3262-3272, 3274–3277, West et al. v. Brack Hargrave (hereinafter 3289; Dec. Dig. $ 837.*)

called West-Hargrave partition suit), and that 6. PARTITION ($ 95*)—DECREE-CONSTRUCTION thereunder, by one Ehrhardt, as surveyor -INTENTION OF COURT.

A partition by decree of court is the act of appointed by the court, a purported subdithe court, and its intention governs.

vision of said tract had been made, sup[Ed. Note.-For other cases, see Partition, posed to cover all of it, and that said 90Cent. Dig. 88 300-316; Dec. Dig. $ 95.*] foot strip comprised parts of certain lots 7. PARTITION ( 95*)— DECREE-CONSTRUCTION. of such subdivision, to wit, lots 1 and 5 in

Where a plat, made part of the report of block 1, and lot 1 in block 2, owned by plaincommissioners in partition and of the decree, covered all the land intended to be partitioned, tiff Rosenthal, and lot 3 in block 1, owned but the field notes in the report did not do so, by Susan West, and lot 4 in block 1, owned the question was as to the intent of the com- by Rannie Mooney, and lot 6 in block 1, missioners in their report and the court's in-owned by Edgar W. Hargrave and Wiltention in its adoption by decree.

(Ed. Note.--For other cases, see Partition, liam Sporn, and lot 6 in block 2, owned by Cent. Dig. 88 300-316; Dec. Dig. $ 95.*] Edgar W. Hargrave, and lot 7 in block 1, •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

owners

and lot 7 in block 2, owned by Brack Har- and recovery by all for the benefit of each, grave, and lot 2 in block 2, owned by Urilder, likewise without issue between them. PlainNobles, and Wilson Hargrave, but that if tiffs prayed for the title and possession of mistaken in the averment that said lots were said 90-foot strip, and for their damages in said 90-foot strip, nevertheless plaintiffs for the oil taken out by defendants without were the owners in fee simple of the 90-foot right, and for recovery of their royalties on strip, and of said subdivisional lots, both of the oil taken out under said lease to defendwhich were a part of said Hargrave tract. ant, and for costs and general relief. Plaintiffs further alleged that plaintiffs (ex The answer of the defendant Sun Comcept Edgar W. Hargrave and William Sporn, pany, so far as necessary to notice, set up, as to the lot 6 in block 1) had pooled their in connection with the plea of not guilty and interests in said Hargrave tract for oil pur- general denial, as follows: (1) That plainposes, and had executed to the plaintiff Mor- tiffs' action was barred by two years' limiris Rosenthal an oil lease thereof, with pow- tation for oil taken out prior to July 28, er to sublease, reserving a tenth of the oil 1911, the date of the filing of the plaintiffs’ as royalty; and that said Rosenthal, in the second amended original petition, upon which exercise of his power of subleasing, executed the trial was had. (2) That the lease to it to defendant Sun Company on January 23, from Morris Rosenthal was delivered and ac1908, an oil lease on said lots 1, 3, 4, 5, and cepted as alleged by plaintiffs, but that the 7 in block 1, and said lots 1, 2, and 7 in 90-foot strip was cut off of and across the block 2 of said Hargraves subdivision, re- south end of a tract of 3943 acres allotted serving one-sixth of the oil product as roy. to J. D. Bourgeois in said Hermann-Payne alty. It was alleged that E. W. Hargrave partition suit, and that it had an oil lease and William Sporn, as to said lot 6 in block thereon from the owners, W. H. Bailey, J. 1, executed an oil lease thereof to Oran R. West, Geo. L. Glass and Eugene W. West, with power to sublease and assign, Booth, to whom it had paid the royalties, reserving an eighth part of the oil as roy- both before and since the instant suit, and alty, and that afterwards Oran West assign- they were impleaded for recovery over by ed and sublet the same to W. S. Farish, re- cross-action, if it was cast. (3) That whethserving a sixth royalty of the oil produced, er the true division line placed the 90-foot and that subsequently, on January 20, 1910, strip in the J. D. Bourgeois or in the Harsaid Farish duly assigned all his rights to grave tract, the respective

had the oil that had been or might thereafter agreed upon a boundary line between said be produced or taken from said lot 6 in tracts, so as to place said 90-foot strip in block 1, under such lease, to plaintiff Morris the J. D. Bourgeois. (4) That plaintiffs were Rosenthal. Plaintiffs further alleged that estopped to claim the 90-foot strip to be a the defendant the Sun Company, aided and part of the Hargrave tract, for the reason assisted by its codefendants, had extracted that they, or those under whom they claim, from said 90-foot strip, and from the north bad by said Ehrhardt plot of the Hargrave, 90. feet of said subdivisional lot 6 in block and deeds and releases adopting and recog. 1, to wit, 240,000 barrels of oil, of the rea- nizing it, or by pointing out the line on sonable market value of $192,000, all of the ground, or by other acts or statements, which it had wrongfully appropriated and represented the dividing line to be where converted to its own use, and had also ex. it, the Sun Company, claims it to be, that is, tracted from the north 90 feet of said lots so as to put the strip in question in the J. 1, 3, 4, 5, and 7 in block 1, and said lots 1, D. Bourgeois tract, south of the wells in 2, and 7 in block 2, of said Hargrave subdi- dispute, and that on the faith of such repre. vision, to wit, 210,000 barrels of oil, of the sentations it had been reasonably misled reasonable and market value of 80 cents into changing its position for the worse at per barrel, for one-sixth of which it became great outlay, by drilling wells and paying and was accountable to plaintiff Morris Ros-over royalties to claimants of the J. D. enthal, for the use of himself and coplain

Bourgeois tract. tiffs, but that it had wrongfully appropriated The impleaded defendant, J. R. West, died and converted same to its sole and exclusive pending the suit, and on petition by plainuse and benefit, including plaintiffs' one-sixth tiffs, his heirs and representatives were royalty, of the reasonable and market value brought in, to wit, his administratrix, Isaof $28,000, for which it has refused to ac- bella West, and his minor children, Emmett, count to plaintiffs, notwithstanding due de- James R., and Sam West, and Edna Wilson, mand, basing its refusal upon the adverse an adopted daughter. claim that the wells from which such oils The impleaded cross-defendants, including were produced are not on said lots covered the heirs and representatives of J. R. West, by said lease to it. Plaintiffs further al- deceased, the minors, by their regularly apleged that under their pooling agreement pointed guardian ad litem, s. H. Brashear, they had apportioned and assigned among duly answered practically to the same effect themselves their interest in the recovery, so

as the defendant the Sun Company. that the recovery by any would be for the The plaintiffs, under leave of the court, filbenefit of all, without issue between them, I ed a supplemental petition in reply, in which

they, after interposing a general denial to the south of the wells in question, and on that averments of the answers, alleged:

assumption change their position to their pe"That in the alleged Hermann-Payne parti- cuniary harm or prejudicially, as claimed, tion suit, under which both sides claim, the without taking proper steps to ascertain the surveyor merely ran the outer lines of the al- true whereabouts of such boundary for themleged Strange survey, and meandered the selves. San Jacinto river, then located the M. Bour "That, as concerns the claim that plaintiffs geois, the M. Boudreau, the J. D. Bourgeois, were estopped by standing by in silence and Mary Hargrave tracts in their order, by while the wells were being drilled and the course and distance, tying each to the other royalties paid over, the facts are that plainwithout running the lines on the ground, and tiffs were unaware, during such time, that conforming the location of the Dunman 150- the boundary line, which it is claimed was acre tract called for to such course and being acted on, was not the true one, and distance; and, by locating said tracts in the further during all such time, the defendants, manner and by the course and distance as and particularly the Sun Company, bad equal done by said surveyor, the true boundary line and superior means and opportunity to asbetween the J. D. Bourgeois and Hargrave certain the true boundary line. tracts is north of the wells in question, "That, in point of fact, the defendant the where the plaintiffs claim it to be.

Sun Company, in drilling the wells and pay"That there never was any agreement being over the royalties, acted on its own intween the respective owners of said J. D. dependent judgment, and not on account of Bourgeois and Mary Hargrave tracts, as held anything said or done, or fraudulently conunder said Hermann-Payne partition suit, cealed by the plaintiffs, or those under whom fixing the boundary line between them at they hold, or any of them. any point different from the true boundary "That if the plaintiffs, and those under line as above stated.

whom they claim, have, by acts or conduct, "That, as concerns the claim by defendants recognized a line south of said wells as being of estoppel based on acts or conduct of plain the true line, or if there was any such subtiffs, or those under whom they hold, arising division or plat, such was by mistake, and from instruments placed of record, or from arose out of the error of uniting the Harpointing out of the dividing line, the only grave tract on the south with the Steele color therefor comes from a plat and subdi-tract, which by mistake and error stopped vision of the Hargrave tract made by the 90 feet short; but, as concerns any agreesurveyor Ehrhardt, who was appointed by the ment or estoppel between the owners of the court in the alleged West-Hargrave partition Hargrave and Steele tracts, giving the Harsuit to partition the whole of such tract, grave tract more than it is entitled to by 90 which subdivision the defendants claim puts feet on its south, the owners or claimants of the boundary line between the J. D. Bour- the J. D. Bourgeois were not parties thereto, geois and Hargrave tracts south of the wells nor are they in privity therewith, and such in question. But, in this connection, the facts are not binding for or against them, and canare that the Hargrave heirs never authoriz- not affect the location of the true boundary ed said surveyor to subdivide less than the on the north between the Hargrave and J. D. whole of said tract, or to place said dividing Bourgeois tracts, whatever gain might thereline at other than its true boundary, and by go to the Hargrave." they were unaware that he had done so, if The defendant Sun Company filed a first he had, until about or after the commence- supplemental answer in rejoinder, practically ment of this suit; that the defendants, and reiterating the averments of its defenses as each of them, had equal means and opportun- above set out. ity of knowing the true boundary line be A trial by a jury resulted in a verdict and tween said tracts, and the acts and conduct judgment for the defendant, 'against which of plaintiffs, and those under whom they plaintiffs duly filed their motion for new claim, in respect to such subdivision and trial, presenting the points of error herein replat, or any recognition of same, would not lied on, which motion was overruled, and have been taken by a reasonable person sit- thereupon plaintiffs duly perfected their apuated as were the defendants, or any of peal by notice and bond, as required, and them, that the true boundary between such regularly assigned errors. tracts was, or was recognized by plaintiffs as, By a decree entered in the district court of south of said wells, or that plaintiffs, or Harris county January 22, 1894, confirming those under whom they hold would set up a report of commissioners, a large body of no claim to the Hargrave tract as north of land was partitioned among a number of such line, and plaintiffs, and those under claimants. This dispute arises as to the whom they hold and claim, had no reason- boundary of two of the parcels set apart in able grounds to anticipate that one in the severalty in the decree, and therefore, while situation of the defendants, or any of them, brought in form of trespass to try title, in would, on the faith of such acts or conduct fact involves the true location of the boundon the part of plaintiffs or those under whom ary line between the J. D. Bourgeois sub

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decree to the children of Mary Hargrave. , thence north 439.7 varas to the northwest

The said partition suit (Hermann-Payne) corner of said 150-acre tract; thence east 464 by which the court allotted to the parties / varas; thence north 193 varas; thence west thereto parts of the James Strange and J. B. 673 varas to the place of beginning. Jones surveys and the J. Dunman labor is "Field notes of a survey of 39.304 acres the common source of title. The three sur- out of the Strange and Dunman labor surveys are bounded on the north by the San veys made for (Mary Steele et al.) south of Jacinto river; the J. Dunman labor lies west and adjoining a survey of 39.304 acres made of the James Strange and east of the part of for Mary Hargrave et al.: Beginning at the Strange there partitioned. Out of that southeast corner; thence south 567.2 varas to survey is a tract of 432 acres, extending the W. T. Payne's northeast corner; thence west surveys full length to the river on the north, 391.2 varas along said Payne's north line to and known as the Wilson 432-acre tract. corner; thence north 567.2 varas; thence east The decree of partition reads:

-391.2 varas to the place of beginning. “On this 22d day of January, 1894, came

"Field notes of a survey of 151.91 acres of on to be heard the report of commissioners, land made for W. T. Payne out of the J.

which said report, field notes and Strange, J. B. Jones surveys, and the J. Dunmap, are as follows: Now comes T. W. Arch- man labor: Beginning at a stake at the tram er and P. S. Humble, two of the commission on the west line of the J. Dunman 150-acre ers,

** and having had said lands survey 1,110 varas north of its southwest surveyed and platted by J. J. Gillespie, corner and 255 varas north and 209 varas

have made and do make this, our east of the J. Dunman labor southeast correport: We have allotted and set apart to ner; thence east 1,266 varas to the west line W. T. Payne 152.91 acres, with improve of the Holmes 50-acre tract; thence south ments thereon.

We attach field

682 varas; thence east 1,266 varas to stake; notes and metes and bounds of each part al- thence north 682 varas to the place of belotted to each party in said cause, also a

ginning.”

J. W. Gillespie testified as follows of the map showing a plat of all said lands, and the

way the field notes and map adopted were parts set apart to each. "Field notes of a survey of 108.614 acres i assisted him in making the surveys.

arrived at: "J. J. Gillespie was my father. of land made for M. Bourgeois off the north went upon the ground; first we run the east

We end of the Strange survey: Beginning at the line of the Strange, which was the east line northeast corner of the J. Dunman labor on of the Wilson, and then the east line of the the south bank of the San Jacinto river, the balance of the Strange which was the west same being the northwest corner of this sur line of the Wilson 480 acres. We extended it vey; thence south 751.5 varas to corner; then from the south line of the Strange to thence west 673 varas to corner on the west the river, the north line of the Strange. I 'ine of the Wilson 483-acre tract; thence could not tell now just exactly what we took north 269.3 varas to the San Jacinto river; up next after we run that line. The only thence up said river with its meanders to the one of the tracts in the report of the complace of beginning.

missioners that we surveyed and actually lo"Field notes of 23.07 acres made for the cated on the ground was the Payne; and in heirs of M. Boudreau out of the Strange sur fixing this northeast corner of the Payne we vey, south of and adjoining 108.614 acres began by measuring 1,110 varas from the made for M. Bourgeois: Beginning at said southwest corner of the Dunman 150 as Bourgeois' southwest corner; thence south pointed out to us by an old settler by the 191 varas to corner; thence east 673 varas name of Joe Dunman. I saw that the northto corner; thence north 191 varas to M. east corner was 1,110 varas north of the Boudgrois southeast corner; thence west 673 southeast corner of the Dunman 150 and 255 varas to the place of beginning.

varas north and 209 varas east of the south"Field notes of a survey of 39.304 acres east corner Dunman labor. We then tied to made for J. D. Bourgeois out of the Strange these two surveys. We then surveyed the survey, south of and adjoining the 23.07 Payne tract and fixed the four corners. acres made for the heirs of M. Boudreau: (Note from this description it appears there Beginning at the southwest corner of a sur- are two 'east calls and no 'west.') I began vey of 23.07 acres made for Boudreau; at the northeast corner of the Strange and thence south 329.6 varas; thence east 673 ran down 5,645 varas to southeast corner. I varas; thence north 329.6 varas; thence west meandered some of the San Jacinto river, 673 varas to the place of beginning.

meandered across the Wilson tract, but just "Field notes of a survey of 39.304 acres of how much I do not now remember. I knew land made for the children of Mary Har- or thought I knew where the southwest corgrave out of the Strange survey, south of ner of the Dunman labor was, and from that and adjoining the J. D. Bourgeois 39.304 I located the intervening surveys between acres: Beginning at the southwest corner of the Payne tract and the San Jacinto river. J. D. Bourgeois 39.304-acre tract; thence The call was 2,727 varas from the Dunman south 632.7 varas; thence east 209 varas to corner to the river, and I knew that the the west line of the Dunman 150 acres ; | north line of the Payne was 255 varas north

of the south line of the Dunman, so had the ambiguity, extrinsic evidence cannot be redifference to work on in reaching the river sorted to to show that the survey occupied from the Payne. In making the field notes some other position. Warren v, Sapp, 97 S. I think we began both ways, i. e., at the W. 125; Johnson v. Archibald, 78 Tex. 96, 14 river and going south to the Payne, and at S. W. 266, 22 Am. St. Rep. 27. the Payne and north to the river. The notes [2] It is admitted that if the land be platwill show the way it was done, and they (ted to the south, beginning with what plainwill show the way they were made. There tiffs claim was a fixed northeast corner of are not any of those blazed trees there now the M. Bourgeois 108-acre tract, the 90-foot that are called for in the patent for corners strip would be where appellants claim it to of either the Strange or Dunman. It's hard be; if it should be platted to the north, with to tell what is understood by a call for the the Payne north line as a base, the 90-foot bank of the river. In this case we intended strip would be where appellees claim it to that corner to be 2,727 varas north of the be. The question under the above assignsouth line of the Dunman labor. I did not ment then is: Was there any inconsistency intend to start at any point different from or ambiguity, such as under the law would the northeast corner of the Dunman and the require the cause to be submitted to the northeast corner of the Strange, which I jury? The partition was the act of the court was ordered by the court to survey. The through the commission appointed. It is unPayne tract cuts off a portion of the south disputed that the map and field notes when of the Dunman labor, 255 varas north and sought to be applied to the land as it actualsouth. If you subtract that from the 2,727 ly measures out would not fit it. There was varas, you will have 2,472 left of the east nothing said in the report about marked line of the Dunman labor; add 567.2 varas lines, but simply described the several subfor the Steele, 632.7 varas for the Mary Har- divisions by metes and bounds after naming grave, 329.6 varas for the J. D. Bourgeois, a beginning corner, to wit, the Dunman the 191 varas for the M. Boudreau, and the northeast corner, without locating it by any 751.5 varas for the M. Bourgeois; they exact natural or artificial object except to say "on ly correspond with the land I had left after the bank of the San Jacinto river.” The I fixed the Payne. I intended to slice that field notes would indicate that the several land between the Payne and the river by a subdivisions as reported by the commission line running east and west and give those began at the M. Bourgeois 108-acre tract on distances to each tract, just as I would a the river and each in their order tacked to cake. If I take the Payne tract as a basis it, but the surveyor who was on the ground and give the Steele tract the distance shown and who made the field notes testified, within my plat and field notes and likewise the out objection, that he did not survey any of other surveys named to the river north, then the subdivisions but did run some of the the 90-foot strip will not be on the Hargrave. lines of adjoining surveys as above noted; The northeast corner is a good high bank, that he first located the Payne tract, and clay-and has not varied for many years. I then calculated the distance between that went to that corner when I made the parti- and the Dunman corner, and in making the tion. I know the 90-foot strip. If you take field notes intended to cut the space up bethe measurements on the east side from this tween the Payne north to the river like he high bank corner, and give each tract its would a cake, giving so many varas north quantity called for on the map and in the and south to the Steele, the Hargrave, the field notes filed, the 90-foot strip will be on Bourgeois, the Boudreau, and the M. Bourthe Hargrave tract; and then if you run on geois. The calculations and field notes were around and north up the east line of the made in the office, all based upon the Payne Dunman and the west line of the tracts in tract. controversy, and give each tract its west line The evidence further shows that the field measurement according to the field notes of notes without the plat (the plat or map was the partition decree, you would stop about a part of the decree of the court and ex350 to 400 feet south of the water in the pressly mentioned therein as a part (Lyon v. river."

Waggoner, 37 Tex. Civ. App. 205, 83 S. W. Appellants' first assignment of error raises 46]) will not cover the ground intended to be the point that as a matter of law the court partitioned by the court-a 90-foot strip should have instructed a verdict for the unassigned—and if we measure from named plaintiffs, first, because “the undisputed evi- corners either the northwest or northeast cordence showed that by properly locating the ner of the M. Bourgeois 108 on the river and M. Bourgeois, by its calls in the Hermann- then give each subdivision its number of Payne partition suit, and tying thereto in varas south until we take up the space called their order by course and distance the Boud- for, there is left a 90-foot strip north of the reau, the J. D. Bourgeois, and the Hargrave Steele, or else its calls for distance must tracts, as required to be done, the 90-foot give way and the Steele tract take to the strip would be in the Hargrave tract." Payne, thus giving it more land than was in

[1] Of course, if the calls in the partition tended it should have and the tract of 108 decree, supported by the map which is ex- acres on the river less. On the other hand,

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