setting forth elements of claim
How later courts described this case
- setting forth elements of claim
Written by the judges who cited it.
The opinion
REAVLEY, Justice
(dissenting).
The court decides here that McBride was not where he thought he was when he surveyed on the ground in 1870. It decides that all of the adjoining owners have been wrong for eighty years. It rejects the jury verdict and reverses the judgments of the trial court and the court of civil appeals. The west line of Liberty 9 has been moved out to X-Y by scepter of the law.
We accomplish this decree by locating the pine trees which Magruder marked for his west corners in 1844. Actually, no trees are there, and there are no stumps; but two surveyors have testified that they have unearthed the roots of those very same trees. A third surveyor tells us that he has found the holes of the first two surveyors —but nothing more. The third surveyor could find no evidence of the remains of any trees in the ground where the first two had been digging. The significance of roots could be doubted if the third surveyor was correct when he testified that in this particular area “you could go on a given course a certain distance until you could find a set of stump holes that would fit because the country was covered in pine trees.”
We choose whom to believe and whom to disbelieve. I had thought that this was the function of the jury.
No other corner of Liberty 9 was located by holes or even by stumps. The other corners from which the court works were located because of long acceptance and usage. A reasonable juror, and maybe lawyer or surveyor, would expect the same factors to be respected on the west line. This W-Z line, always clearly marked on the ground, has been accepted as the actual dividing boundary between the two surveys for over eighty years. Kirby used that line when timber deeds were prepared in 1929 for its purchase of Lindsey timber. Humble leased from Lindsey in 1932 by using the W-Z line. A tenant of Kirby placed his west fence on the W-Z line at-the direction of Kirby’s agent. Since 1905 when John Lindsey moved on Section 2, the owners of Liberty 9 have cut timber to the W-Z line, and the owners of Section 2 have sold timber to that line. The Lindseys had an orchard on part of the land in dispute for a number of years. Until a company surveyor started redrawing the map in 1949, there was only one west line for Liberty 9 and it was at W-Z.
*743 The jury was entitled to locate the boundary at W-Z. I would affirm the judgment.
CALVERT, C. J., and STEAKLEY, J., join in this dissent.