boundary disputes and vacancies - … disputes and vacancies chapter 2 1 boundary line disputes and...

BOUNDARY DISPUTES AND VACANCIES

JOHN C.D. DROLLA, JR.Law Offices of John C.D. Drolla, Jr.

Town Lake Building512 East Riverside Drive, Suite 200

Austin, Texas 78704512.445.6838

512.445.0077 [email protected]

* Copyright 1997 by John C.D. Drolla, Jr.All Rights Reserved

23 ADVANCED REAL ESTATE COURSErd

STATE BAR OF TEXASJune 20-22, 2001 Dallas, Texas

July 11-13, 2001 Houston, TexasAugust 22-24, 2001 Austin, Texas

CHAPTER 2

CURRICULUM VITAE

JOHN C. D. DROLLA, JR. As of 11 June 2001LAW OFFICES OF JOHN C. D. DROLLA, JR.The Town Lake Building,512 East Riverside Drive, Suite 200Austin, Texas 78704512.445.6838; 512.445.0077 FAX;e-mail: [email protected]

PRACTICE AREA:General Civil Trial, Appellate and Federal Practice, Commercial and Residential RealEstate Law, Business Law, Bankruptcy, Corporation and Banking Law, Family Law and limited Criminal Law[Only Certified By The Texas Board Of Legal Specialization In Commercial and Residential Real Estate.Not Certified In Other Areas]

EDUCATION & LEGAL BACKGROUNDB.A. and J.D. University of Texas at AustinAdmission to Practice State of Texas, 1972;Admissions to Practice Before:U.S. Supreme Court 1977;U.S.Court of Appeals, Fifth Circuit 1976 & 1982 (upon reorganization);U.S. District Court, Western District ofTexas 1974; U.S. Court of Appeals For The Armed Forces 1988Board Certified -- Commercial and Residential Real Estate Law, Texas Board of Legal Specialization, since1983 and 1984 respectively.

PROFESSIONAL ASSOCIATIONSState Bar of Texas 1972-presentMember State Bar Of Texas Real Estate, Probate and Trust Section, Litigation Section, Corporate, Banking

and Business Law Sections, Military Law Section (Council Member 1986 to 1990) and Family LawSection

Travis County Bar Association (also member Real Estate Litigation Sections); Co-Chairman ContinuingLegal Education Planning Committee [Member 1991 -2001] and Moderator of the Civil LitigationInstitute conducted April 1991; Co-Chairman Public Image Committee 1991-1992; VolunteerMediator, Travis County District Courts Settlement Week, 1992-1998; Member Gender EquityCommittee 1996-97, 1997-98;

Williamson County Bar Association, Volunteer Mediator, Williamson County District Courts SettlementWeek, 1999, 2000

Federal Bar Association, Austin Chapter (Treasurer 1994-1995; Program Committee Chair, 1994-1995;Delegate National Convention 1995, 1997; Secretary 1995-1996; Vice-President 1996-1997;President-Elect 1997 - 1998; President 1998- 1999; Chapter Delegate to National Council 1999- 2000,National Presidential Appointee as Delegate to National Council 2000-2001)

College of the State Bar of Texas 1985-1994; Fellow-College of State Bar 1995-presentThe Pro Bono College of the State Bar of Texas 1992 through 1998Texas Association of Bank Counsel (former member)Texas Savings and Loan League Counsel (former member)Advanced Real Estate Law Course, State Bar of Texas Planning Committee, 1987, 1990, 1991, 1993, 1995,

1996, 1998, 1999 (Chairman & Course Director 1999) and 2001Real Estate Litigation Institute, State Bar of Texas Planning Committee, 1981, 1985, 1987, and 1996

(Chairman 1987)Dealing with Insolvent Organizations Institute, State Bar of Texas Planning Committee, 1989Strategic Use of Liens Institute, State Bar of Texas Planning Committee 1990United States Army Reserve, Colonel, previously assigned to Department of Defense, Office of the Inspector

General, Inspections from 1988-1993Graduate, City of Austin Citizens Police Academy, 1993Graduate, Travis County Sheriff's Department Citizens Sheriff Academy, Class No. II, 1994.

AWARDS\HONORSMembership, Phi Delta Phi, University of Texas School of Law, 1970Chairman, Trial Advocacy Association - 1971Member, Moot Court Board - 1970 - 1971Member, Board of Advocates and Order of Barristers - 1971Best Brief Award (Criminal Case), University of Texas School of Law, Spring 1971Best Brief Award (Criminal Case), State Bar of Texas, Summer 1971Champion, State Bar of Texas Moot Court Competition Summer 1971University of Texas School of Law CONSUL Award for Leadership by Faculty and Students - 1972National Order of Barristers - 1972Who’s Who In American Law - 1998 - 1999; 1999 - 2000Fellow-College of the State Bar of Texas 1995Fellow-Texas Bar Foundation 2000State Bar of Texas Lawyer Referral and Information Committee-2001-2004

LECTURERFinkelstein Texas Bar Review Course

Federal Courts and Procedure and Texas Workmen's Compensation Law, 1974-1976Real Estate Litigation Course, State Bar of Texas, “Earnest Money Contract Litigation,” 1981; “Suits

Affecting Title to Real Property”, 1985; and Ethics: “The Texas Lawyer's Creed” 1996Professional Liability: A Performance Enhancement Course, State Bar of Texas, 1986Advanced Real Estate Law Institute, State Bar of Texas, 1987, 1990, 1991, 1993, 1996, 1997, 1998 and 1999Military Law Section Seminar, “Foreclosures and Loan Workouts,” State Bar of Texas, 1989Dealing with Insolvent Organizations Institute, “Highlights of Federal Bankruptcy Law,” State Bar of Texas,

1989Strategic Use of Liens Institute, “Do You Really Want To Foreclose (Environmental Concepts),” State Bar

of Texas, 1990Strategic Use of Liens Institute, “The New Texas Disciplinary Rules of Professional Conduct From The

Perspective Of A Civil Practitioner,” State Bar of Texas, 1990Selected Topics in Litigation, State Bar of Texas, 1992Boundary Law And Adjoining Landowner Disputes, “Boundary Line Disputes and Agreements and The

Basics of Easements,” Professional Education Systems, Inc., 1997Ethics, Ethics, Ethics Seminar, Travis County Bar Association, “Ethics: The Texas lawyer’sCreed(Revisited)” 2001

ARTICLES PUBLISHED“Trial Techniques in Texas,” 34 Texas Bar Journal 895, 1971“Use of Prior Testimony of an Unavailable Witness,” 35 Texas Bar Journal 929, 1972“Suits Affecting Titles to Real Property in Real Estate Litigation,” State Bar Real Estate Litigation InstituteSeries, 1985“Real Estate Agent Liability,” State Bar of Texas Professional Liability (A Performance EnhancementCourse), 1986“Broker Liability Issues” State Bar of Texas Advanced Real Estate Law Course, 1987Chapter 14, “Real Estate Agents and Brokers,” Texas Torts and Remedies Treatise, Matthew Bender &

Company, Inc., 1988“Highlights of the Federal Bankruptcy Law,” (co-author), State Bar of Texas Dealing With InsolventOrganizations Institute Series, 1989“Revision of Asbestos Regulations,” State Bar of Texas Advanced Real Estate Law Course, 1990“Boundary Disputes--So You Think That's Your Property Line?”, (co-author), State Bar of Texas AdvanceReal Estate Law Course, 1991“Title Disputes and Basic Causes of Action,” State Bar of Texas Advanced Real Estate Law Course, 1993“Earnest Money Contract Disputes,” State Bar of Texas Advanced Real Estate Law Course, 1996“Ethics: The Texas Lawyer's Creed,” State Bar of Texas Real Estate Litigation Institute,

1996“Boundary Line Disputes and Agreements,” State Bar of Texas Advanced Real Estate Law Course, 1997"Boundary Line Disputes and Agreements and The Basics of Easements," Professional Education Systems,

Inc., 1997“Adverse Possession and the Trespass To Try Title Lawsuit,” State Bar of Texas Advanced Real EstateLaw Course, 1998“Ethics: The Texas Lawyer's Creed (Revisited),” Travis County Bar Association, Ethics,Ethics,EthicsSeminar 2001

Boundary Disputes and Vacancies Chapter 2

Table of Contents

I. SCOPE OF ARTICLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

III. EXTENT OF OWNERSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1A. Property Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1B. Uses of Land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

IV. LOCATING THE BOUNDARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2A. Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B. Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3C. Priority and Dignity of Calls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. A Little History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32. Natural Objects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43. Artificial Objects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44. Courses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45. Distances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46. Quantities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

V. TYPES OF BOUNDARIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A. Private Land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5B. Roads . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5C. Water Courses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

1. Natural Water Courses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52. Navigable Water Courses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63. Non-navigable Water Courses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64. Tidal Waters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65. Lakes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76. Accretion, Avulsion, or Reliction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

VI. BOUNDARY LINE AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7A. Oral Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7B. Acquiescence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8C. Written Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

VII. LITIGATION INVOLVING BOUNDARIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9A. Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10B. Venue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10C. Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10D. Plaintiff's Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10E. Multiple types of allegations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11F. Property Description . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11G. Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

1. Abstract of Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122. Appointment of Surveyor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

H. Documentary Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13I. Claim for Improvements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

1. Texas Property Code, Sec. 22.021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142. Texas Property Code, Sec. 22.041 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

J. Default Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15K. Defendant's Answer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

1. Plea of "Not Guilty" or General Denial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152. Issues Raised . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153. Admission of Possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16


L. Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161. Applicable Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16a. Presumptions and Burden of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16b. Questions of Law and Fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17c. Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

M. Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

VIII. VACANCIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18A. Creation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18B. The Vacancy Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18C. Procedures under the Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21D. Res Judicata and the Vacancy Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Appendix A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31


1

BOUNDARY LINE DISPUTES AND AGREEMENTS

SCOPE OF ARTICLE

Boundary disputes seem to surface around – hard to find lines, boundaries which conflict and,the State of Texas with regularity as we grow in at times, boundary lines which created what ispopulation and development moves into the outer commonly known as the strips and gores doctrine,urban and rural areas. In response, this year’s a doctrine developed to help prevent vacancies.Advanced Real Estate Course Planning Markers, such as trees, which would disappear atCommittee decided that it should be a topic the whim of a cowboy or a hunter presentpresented. Thus, my guidance was to update problems. Case law affecting boundary disputesprevious presentations on this topic and add a was well established in the late 1800's, earlytouch of vacancies discussion. Hence this paper 1900's. While we have had little new case lawis an updated rewrite of previous works to since 1997, the Texas Supreme Court has decidedfamiliarize attorneys with some of the basic a case of first impression dealing with “natural”principles governing boundary line disputes, to versus “architectural” created accretion. Seeinclude a brief discussion on vacancies, and E.H. Brainard, II v State of Texas, 12 S.W. 3d 6agreements incident to resolution. The paper also (Tex. 1999). Boundary disputes still, on occasion,touches on some of the considerations necessary occur between counties. The suits are governedto litigation of boundary disputes. Primarily, it is by Texas Local Government Code §72.009an update and revision of previous article(s) which (Vernon 1999) In Re Tarrant County, 16 S.W. 3ddealt in part with this topic among others. 914 (Tex. App. – Fort Worth 2000, orig.Variances of this article have previously been proceedings). Most of the cases, to include thepresented at the 19 Advanced Real Estate Law Brainard case, of late confirm and strengthen theth

Course, the summer of 1997, and a seminar on old well-established rules of resolution of boundaryTexas Boundaries Law and Adjoining disputes and the interpretation and construction ofLandowners Dispute in the fall of 1997. This surveys found in the cases decided in the last twoarticle will not discuss the trial of a trespass to try centuries. At least one court has referred to oldertitle case, except as to aspects which share surveying efforts as “inept at best.” Kilgore v.commonality with boundary line dispute cases. Black Stone Oil Company, 15 S.W. 3d 666 (Tex.Practitioners involved in a trespass to try suit or App. – Beaumont 2000 pet. denied [2 pet.])other real estate cause(s) of action such as a suitto quiet title or adverse possession are referred toJohn C.D. Drolla, Jr. and Eddie Vassalo, TitleDisputes And Basic Causes of Action, inSTATE BAR OF TEXAS PROF. DEV. Unless otherwise specified in the conveyancePROGRAM, 15 ADVANCED REAL ESTATE instrument, Texas law presumes that eachth

LAW COURSE R. For a discussion on conveyance vests in the Grantee an estate in feeeasements, party walls, fences, encroachments simple, together with all of the rights appurtenantand nuisances, the practitioner may want to thereto. Russell v. City of Bryan, 919 S.W.2dreview Richard Melamed and John C.D. Drolla, 698, 704. App. - Houston [14th Dist.] 1996, writJr., So, You Think That's Your Boundary?, in 2 denied); TEX. PROP. CODE ANN. § 5.001STATE BAR OF TEXAS PROF. DEV. (Vernon 1984 and Supplement 2001). Deeds arePROGRAM, 13 ADVANCED REAL ESTATE construed to confer upon the grantee the greatestth

LAW COURSE P (1991). estate that the terms of the instrument will permit.

II. BACKGROUND

Boundary line disputes arise for numerousreasons, the primary of which is our reliance onmetes and bounds surveys. Surveying instrumentsof old were probably only as accurate as their

user. The marking of corners was not alwaysuniform and sometimes difficult to do. The result

III. EXTENT OF OWNERSHIP

A. Property Rights

Lott v. Lott, 370 S.W.2d 463, 465; Russell v. Cityof Bryan, 919 S.W.2d at 705.

A fee simple estate entitles the owner to (i)the entire property; (ii) unconditional powers ofdisposition during the owner's life; (iii) title thatdescends to his or her heirs or legalrepresentatives upon his or her death; (iv) bothlegal and equitable title. Field v. Rudes, 204

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S.W.2d 1, 4 Tex. Civ. App. - El Paso 1947, rev. of the minerals. Acker v. Guinn 464 S.W.2d 348on other grounds 204 S.W.2d 5 [Tex. 1947]). The (Tex. 1971). The test of reasonable use isowner of the fee simple estate owns the property whether an ordinary person would have made ato its boundary lines and "from the center of the similar use of the property, taking intoearth to the top of the sky.” County School consideration the importance of the use and theTrustees v. Free 154 S.W. 2d 935, 937 (Tex. Civ. amount of damage inflicted on his neighbor. Gulf,App.–Texarkana 1941, writ ref’d w.o.m.). This C.&.S. F. R. Co. at 1000-1001; Gray vs. S.T.boundary can be violated on the surface, below Woodring Lumber Co. 197 S.W. 231, 234(Ct.the surface (in the form of subsurface trespass) Civ. App. Ft. Worth, 1917) writ ref. Dallas Landand in the airspace above the surface. & Loan Co. v. Garrett 276 S.W. 471, 474 (Tex.

B. Uses of LandOwners of land may use their property as

they wish, provided it is used in such a way as notto injure others, and the use is not otherwise A boundary is the marking or dividing linespecifically prohibited by statute, state or federal. between two parcels of land. A boundary point isEvery person is entitled to make reasonable use of the end of such a line. In theory, the boundary linehis or her property. No one may make is no wider than a pencil mark.unreasonable use of their property to the materialinjury of a neighbor's property. If an act or use isa reasonable exercise of an owner's dominion, The primary purpose in a boundary linethen simply by virtue of ownership the owner dispute is to locate the survey as it was traced onshould be within his or her rights. Hoover v. the ground by the original surveyor. Moore v.Horton 209 S.W.2d 646, 649 (Tex. Civ. App.- Campbell, 254 S.W.2d 1018, 1024 (Tex. Civ.Amarillo 1948, no writ). A landowner may App. - Austin 1953, writ ref'd. n.r.e.). Thelawfully use his or her land, as long as such use intention of the parties with respect to the locationdoes not infringe on the legal rights of the an of boundaries is to be ascertained from the face ofadjoining landowner, Gulf, C. & S. F. R. Co. v. the grant in light of the surrounding circumstances.Oakes 58 S.W.999, 1000-1001 (Tex. 1900); Stafford v. King, 30 Tex 257 (1867); City ofComanche Duke Oil Co. v. Texas Pac. Coal & Webster v. City of Houston, 855 S.W.2d 176,Oil Co. 298 S.W. 554, 560 (Tex. Comm. App. 178-179 (Tex. App. - Houston [14th Dist.] 1993,1927); Texas & N.O.R.G. Co. v. Davis 60 writ denied); Stuart v. Coldwell Banker & Co.,S.W.2d 505, 507-508 (Tex. Civ. App. Beaumont, 552 S.W.2d 904, 909 (Tex. App. - Houston [1st1933, no writ). In the absence of nuisance, Dist.] 1952, writ ref'd. n.r.e.); Premier Royaltynegligence, or physical harm, there is ordinarily no Co. v. New Birmingham Development Co., 150liability on a landowner for diminution of the value S.W.2d 269, 274 (Tex. Civ. App. - Texarkanaof adjoining land resulting from the lawful use of 1941, writ dism.). With respect to determining thehis land. Johnson v. Dallas Power & Light Co. intent of the parties, case law apparently presumes271 S.W.2d 443, 444 (Tex. Civ. Ap. Dallas, 1954); the intent of the parties is the same as that of theRogers v. Scaling 298 S.W.2d 877, 897 (Tex. surveyor who accomplished the survey. Strong v.Civ. Ap. Ft. Worth, 1957, n.r.e.). When the use of Sunray DX Oil Company, 448 S.W.2d 728 (Tex.land is reasonable, lawful, and without negligence, Civ. App. - Corpus Christi 1969, writ. ref. n.r.e.).an adjoining landowner may not complain if his or In the Strong case, Justice Nye has written aher land is damaged. One's motive in the use of scholarly opinion on boundaries, vacancies,one's land is immaterial to liability if the owner is adjoinder and the ascertainment of the intent ofacting within his or her legal rights regarding that the parties in a boundary dispute. Also in theuse. However, liability may be imposed where a Strong case, then Chief Justice Green wrote alandowner's use of the property, even though concise and succinct concurring opinion on the lawotherwise lawful, is found to have been negligent of vacancies and the interpretation of surveys. Ofor to constitute a nuisance. For instance, an course, Justice Sharpe's dissert is a treatise in andowner of a mineral estate is entitled to make [only of itself. The reader is invited and urged to reada] reasonable use of the surface for the production the Strong case in spite of the fact that it entails

Civ. Ap. Dallas 1925, no writ).

IV. LOCATING THE BOUNDARY

D. Intent
















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some 62 pages inclusive of headnotes. After one on the ground, there is no need to resort to thehas read the Strong case, he or she should read rules of construction, the calls speak forState of Texas v. Sunray DX Oil Company, 448 themselves. Wall v. Carrell, 894 S.W.2d 788,S.W.2d 728 (Tex. Civ. App.-Corpus Christi 1969, 794-795 (Tex. App. - Tyler 1994, writ denied);writ ref’d n.r.e.), wherein now Chief Justice Nye Gray v. King, 227 S.W.2d 872, 874 (Tex Civwriting for a unanimous court affirmed the trial App. - Austin 1950, writ ref'd.). When examiningcourt's summary judgment in favor of persons conflicting surveys or field notes, the rules ofclaiming the land under chains of title to the construction provide that locative calls indicatingcolonial grants discussed in the Strong case. The the boundaries of the land by reference toState v. Sunray DX Oil Company case is a particular objects on the lines or on the cornersconcise text on construing grants and the effect of will prevail over descriptive or directing callsres judicata as well as the subtle distinction which are made without care to such exactness.between a separate trial on various issues and a Thomas Jordan, Inc. v. Skelly Oil Co., 296severance. Chief Justice Nye set the record S.W.2d 279, 289 (Tex Civ App. - Texarkana 1956,straight on the apparent confusion of the day writ ref'd. n.r.e.). For a practical application ofbetween separate trials and severances. The surveying procedures as applied to boundaryStrong case and the State v. Sunray DX Oil determination, the reader is encouraged to reviewCompany case are recommended reading to any Jim Johnson's article entitled, "Land Surveys.”attorney involved in a boundary dispute case James Noble Johnson, Land Surveys, in 1and/or a trespass to try title case. STATE BAR OF TEXAS PROF. DEV.

Both the Strong case and the State v. DX PROGRAM, 13 ADVANCED REAL ESTATEOil will be discussed in more detail later in this LAW COURSE I, (1991).paper. See discussion infra paragraph VIII. D.It is an established rule that where possible in aboundary case, the footsteps of the surveyor shallbe followed. Howland v. Hugh, 570 S.W.2d 876, 1. A Little History882 (Tex. 1978); Stafford v. King, 30 Tex. 257; Justice Stokes of the Amarillo Court of CivilState of Texas v. Brazos River Harbor Appeals provides an informative discussion of theNavigation District, 831 S.W.2d 539, 542 (Tex. priority and dignity of calls along with someApp. - Corpus Christi 1992, writ denied). Intent historical roots in Krider v. Winterman, 108with respect to the location of boundaries is S.W.2d 452 (Tex. Civ. App. - Amarillo 1937,ordinarily a question of fact. Finkelstein v. n.w.h.), wherein he states:Carpenter, 795 S.W.2d 897, 898 (Tex. App. -Beaumont 1990, writ denied); Haby v. Howard, It is always the purpose of surveyors757 S.W.2d 34 (Tex. App. - San Antonio 1988, and others dealing with land titles andwrit denied). boundary lines to leave signs and

E. ConstructionThe rules for ascertaining boundaries, as rocks, rivers, lakes, and prominent

hereinafter discussed, are invoked only when the topographical points, have always beencalls in an instrument are inconsistent or lead to used by surveyors in marking their trails,different results. The law in Texas is clear that in and are considered by them and by thelocating disputed boundary lines, priority must be courts as of first importance. Next ingiven to the calls of the original grant that are the order of dignity come artificialmore specific and definite in preference to those objects, such as trees, stakes, artificialmerely general and indefinite. Stafford v. King mounds and pits. Also in this class30 Tex. 257 (1867); Higginbotham v. Davis, 35 come such objects as public roads,S.W. 3d 194, 196 (Tex. App. – Waco 2000 pet. railroads, fences, and the like. Coursedenied); Mohnke v. Greenwood, 915 S.W. 2d and distance are generally, if not585, 591(Tex. App. – Houston [14 Dist.] 1996, universally, subordinated in importanceth

no writ). If there is no conflict between the calls to either natural or artificial objects.found in the field notes, the deed, and those found The reason for such a rule is obvious.

th

C. Priority and Dignity of Calls

records by which their footsteps may befollowed. Natural objects, such as








4

Chain carriers are likely to miscount the Houston [14 Dist.] – 1996, no writ) holding “thenumber of chains and the surveyor may law of legal preferences gives dignity to calls ininadvertently enter on his record a the following order (1) natural objects; (2) artificialcourse at variance to the one he is objects; (3) course; and (4) distance.” Mohnke atfollowing, but natural objects to not 591. See also, Howland v. Hough, 570 S.W.2dchange and artificial objects made upon 876 (Tex. 1978)the ground are generally susceptible ofrelocation or proof by trusted memories. 2. Natural ObjectsKrider at 454. Calls to natural objects include rivers, springs,

Chief Justice Marshall, in Newsom v. Pryor, occur naturally on the ground. These types of7 Wheat. 7, 10, 5 L.Ed. 382, is quoted by an early monuments are calls of the highest priority. HabyTexas authority in a statement of the rule "that the v. Howard, 757 S.W.2d 34, 40 (Tex. App. - Sanmost material and most certain calls shall control Antonio 1988 writ denied); Strong v. Sunray DXthose which are less material, and less certain. A Oil Company, 448 S.W.2d at 745.call for a natural object, as a river, a knownstream, a spring, or even a marked tree, shall 3. Artificial Objectscontrol both course and distance." Stakes placed in the ground, lines marked or

The rule is well settled that, in locating land adjoinder are types of artificial monuments whichlines, call for natural or artificial objects will rank second in priority. Hill v. Whiteside, 749control calls for course and distance; that is to say, S.W.2d 144, 151 (Tex. App. - Fort Worth 1988,that calls for course and distance must, in case of writ denied); Strong v. Sunray DX Oil Company,conflict, yield to call for natural and artificial 448 S.W.2d at 736.objects. Stafford v. King, 30 Tex. 257, 94Am.Dec. 304; Thatcher v. Matthews, 101 Tex. 4. Courses122, 105 S.W. 317, 318 (1907); Temple Lumber A course is the direction of the boundary asCo. v. Felts et al. 260 S.W. 228, 230.(Tex. Civ. it varies from the north or south toward the east orApp. – El Paso 1924, no writ) west. As between calls for course and calls for

In Thatcher v. Matthews, supra, Justice reliable. Lilly v. Blum, 70 Tex 704, 6 S.W. 279,Gaines, speaking for the Supreme Court, said: 284-285 (1887); Strong v. Sunray DX Oil

In Stafford v. King, 30 Tex. 257, 94Am.Dec. 304, Mr. Justice Smith in a 5. Distanceswell-considered and very elaborate Except for a call for quantity, a call foropinion lays down the rules which should distance is the least satisfactory and least reliablegovern in a case of this character, as of all calls. Bolton v. Lamb, 16 Tex 96 (1856);follows: In case of conflicting calls, the Strong v. Sunray DX Oil Company, 448 S.W.2dorder of dignity and control are: (1) at 736. There is a presumption that the farther thenatural objects; (2) artificial objects; and distance, the more room for error in the call.(3) course and distance. That is to say, Priority and dignity are not effected by the factcalls for course and distance must, in that scientific instruments have been used. Johnscase of conflict, yield to calls for natural v. Schutz, 47 Tex 447 (1877).objects and to artificial objects, amongwhich he expressly mentions “stakes.” 6. QuantitiesThe principles so announced have since Calls for quantity are given small dignity andprevailed in this court without any low priority and always yield to calls for courses,important modification. Thatcher at 318 distances and all other modes of description.

The Thatcher case was followed by Mohnke v. App. - 1900, no writ).Greenwood, 915 S.W. 2d 585 (Tex. App. –

th

mountains, types of soil and similar objects which

marks made on trees by the surveyor and calls for

distances, the calls for course are considered more

Company, 448 S.W.2d at 736.

Jordan v. Young, 56 S.W. 762, 764 (Tex. Civ.







5

V. TYPES OF BOUNDARIESA. Private Land

As a general rule, most boundary line disputesarise between private land owners. The rulesapplicable to private landowners whose boundariesare adjoining are applied reasonably and equally toboth. The term "adjoining landowners" signifies theowners of land which are separated by a commonboundary line. As so used, the term "adjoininglandowners" excludes the owners of land lyingalong or bordering a highway, street or otherpublic place. Although such lands "adjoin" thepublic property in a literal sense, such owners aregenerally designated as "abutting landowners." 2TEX. JUR. 3d, Adjoining Landowners § 1(1995). "Boundary" is defined in TexasJurisprudence as the marking or dividing linebetween two parcels of land, and a boundary pointis the extremity of such a line. The lines or pointsare indicated by various natural or artificialdescriptive elements, such as monuments, coursesand distances, area or quantity, plats or maps, andadjoining lands or waters. Often, the descriptionutilizes a combination of such elements, in whichcase questions often arise as to the relativeimportance of various inconsistent or conflictingelements. 2 TEX. JUR. 3d, AdjoiningLandowners § 28 (1995). Under the SubmergedLands Act of 1953, as amended, the term"boundaries" includes the seaward boundaries ofa state or its boundaries in the Gulf of Mexico asthey existed at the time the state became amember of the Union, or as approved byCongress, or as extended or confirmed pursuant tothe act. 73 TEX. JUR. 3d, Water § 236 (1990).Subject to applicable restrictions and zoningordinances, each land owner has the right to erectimprovements on his land up to the boundary lineas deep or as high as he or she may desire.

B. RoadsRoadways present a somewhat unique

concern to the question of boundaries. Texas has,in early cases, recognized the well-established ruleof the common law that absent an expressreservation to the contrary, a conveyance of landbound on a public street or highway carries with itthe fee to the center of the road as part and parcelof the grant. Mitchell v. Bass, 26 Tex. 372(1862). Our jurisprudence continues to recognizethis presumption. State of Texas v. Williams, 161Tex. 1, 335 S.W.2d 834, 836 (1960). It is

presumed that the grantee of land adjoining astreet or highway owns the land to the center ofthe road. This is true whether the highway is aprivate or public thoroughfare. Of course, thispresumption assumes that the appurtenant stripexists in fact at the time of the conveyance. Id. at836. Nor will the presumption be overcomesimply because the property conveyed utilizesmetes and bounds which stop at the street orhighway. Likewise, the presumption does notapply if the strip is larger and more valuable thanthe conveyed tract. Angelo v. Biscamp, 441S.W.2d 524, 527 (Tex. 1969). The presumptiondoes not apply if the grantor owns both sides ofthe strip. Rio Bravo v. Weed 121, Tex. 427, 50S.W.2d 1080, 1086 (1932), cert. denied, 288 U.S.603, 535. Ct. 387, 77 L.Ed. 978 (1933) All of theforegoing cases were followed in Krenek v.Texstar North America, Inc., 787 S.W.2d 566,568-569 (Tex. App. - Corpus Christi 1990, writdenied), a somewhat recent case which addressedthese issues. Public policy and the strips andgores doctrine dictate that there is a presumptionthat the grantor did not intend to withhold his orher interest in the road if he or she has otherwiseconveyed to its edge. Word of Faith World vOechsner, 669 S.W.2d 364,367 (Tex. App.-Dallas1984, no writ). This rule would also apply wherethe property adjoins an alley using the Rio BravoCo. case analysis of reasons behind thepresumption. Rio Bravo Co. 50 S.W. 2d at 1086-1087. In order for the Grantor to withholdconveyance of the strip running to the center ofthe road, an express reservation of the interestmust be clearly and unequivocally set out in thedocument of conveyance. The conveyance of atract of land adjoining a street, highway or right ofway will be deemed to convey the strip to themiddle of the road even though the field notes donot specifically refer to the right of way. State v.Williams, 161 Tex 1, 335 S.W.2d 834, 836 (1960);Goldsmith v. Humble Oil and Refining Co., 145Tex 549, 199 S.W.2d 773, 775 (1947).

C. Water Courses1. Natural Water Courses

Brooks, creeks, rivers and streams arenatural water courses. They exist where apermanent source of supply sends a current ofwater down a channel embracing a bed and itsbanks. Hoefs v. Short, 114 Tex 501, 273 S.W.785, 787 (1925). Where the boundary calls are






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along the meanders of a water course, even in v. Gonzales, 189 S.W.2d 519, 521-522 (Tex. Civ.precise metes and bounds, it is presumed that the App. - San Antonio 1945, writ ref'd w.o.m.).water course is the boundary, and that the However, if the water course changes suddenlyboundary shifts as the water course shifts. Allen and leaves its old banks to form new ones, thev. Morales, 665 S.W.2d 851, 853 (Tex. App. - boundary will remain in the middle of the oldFort Worth 1984, no writ). Also, when the line channel even though water no longer flows there.along the sea is a “meander line,” the field notes Siddal v. Hudson, 206 S.W. 381, 382 (Tex. Civ.thereof do not make the outer boundary, but the App. - Galveston 1918, writ dism'd). Seeouter boundary is the shore line. Rudder v. discussion infra paragraph V.C.6. The SiddalPonder, 156 Tex. 185, 293 S.W. 2d 736, 743 case’s decision came about as a result of the(1956). In such a description, the stream, and not United States Supreme Court decisions in State ofthe various courses and distances, is the real Arkansas v. State of Tennessee. 246 U.S. 158,boundary line. Dellana v. Walker, 866 S.W.2d 38 Sup. Ct. 305, 65 L. Ed. 638. Siddal v. Hudson,355 (Tex. App. - Austin 1993, writ denied). 206 S.W. at 382. A grant of land contiguous to aHowever, the deed must clearly refer to the non-navigable stream, without reservation, isnatural object as a boundary of the conveyed land presumed to pass title to the center of the stream.for the specific course and distance calls to be Strayhorn v. Jones, 157 Tex. 136, 300 S.W.2dconstrued as a meander line. State v. Brazos 623, 634 (1957); McDonald v. Alexander, 388River, 831 SW2d 539, 543 (Tex. App. - Corpus S.W.2d 725, 727 (Tex. Civ. App. - Waco 1965, noChristi 1993, writ denied). The determination of writ). This rule will be applied even if the land isownership of the bed of the water course is made conveyed by metes and bounds, fails to mentionon the basis of whether or not the water course is the stream or calls for marked corners on the banknavigable or non-navigable. which do not correspond with the center of the

2. Navigable Water Courses The exception to this rule, however, applies toThe State is the owner of the soil underlying conveyances from the sovereign. Strayhorn 300

navigable streams. Maufrais v. State, 142 Tex. S.W. 2d at 634. The theory behind this exception559, 180 S.W.2d 144, 148 (1944). A water course is that the surveyor usually cannot go into theis considered navigable if it is (i) navigable in fact stream to make a corner so the stakes will be(capable of being used in customary modes of placed where the surveyor stops. Typically whentrade or travel on water) or (ii) navigable in law land is conveyed by acreage, the surveyor will use(retaining an average width of thirty feet from its a series of meander lines. These lines do notmouth up). TEX. NAT. RES. CODE ANN. § determine the boundary of the property conveyed21.001 (Vernon 2001). but simply define the turns, curves and bends of

Prior to December 14, 1837, the Republic of the banks of the stream or other body of water.Texas reserved title to the beds of perennial They assist in quantifying the amount of land.streams. Thereafter the state reserved title to all Simply stated, meander lines of surveys of landbeds of all water courses that are navigable in adjacent to or bounding upon a stream are not tofact. Title to navigable waters, whether navigable be considered as boundaries, but they are to followin fact or statutorily navigable, is in the state in the general course of the stream, which itselftrust for the public. In Re The Adjudication of constitutes the real boundary. Stover v. Gilbert,Water Rights of the Upper Guadalupe Segment, 112 Tex. 429, 247 S.W. 841, 843 (Comm'n App.642 S.W.2d 438, 444 (Tex. 1982); Motl v. Boyd, 1923, opinion adopted); State of Texas v. Brazos116 Tex. 82, 286 S.W. 458, 468 (1926). River Harbor Navigation District, 831 S.W.2d at

3. Non-navigable Water CoursesAs to grants made after the act of 1837, the 4. Tidal Waters

property owner's boundary is at the center of the Under common law, a grant of land boundedwater course. City of Victoria v. Schott, 9 Tex by a body of water in which the tide ebbs andApp 332, 29 S.W. 681, 682 (1895, no writ). The flows does not convey title past the ordinary highboundary will follow the water course should it water mark. Galveston v. Menard, 29 Tex 349change imperceptibly over a period of time. Tyler (1859). The Republic of Texas adopted the

stream. Muller v. Landa, 31 Tex 265 (1868).

542.



















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common law of England on 20 January 1840. It (Tex. 1999); Maufrais v. State, 180 S.W. 2d atadopted the common law as to the boundary of the 148. The Brainard case dealt with the effect ofsea. This boundary was the mean high tide of the a government-built dam located some 15 to 45sea waters. Rudder v. Ponder, 293 S.W. 2d. 736 miles upstream from the disputed land of the(1956). Under civil law, the boundary is the mean riparian owners which had resulted in changes thathigher high tide (the highest tide in winter). "Mean were not inherently avulsive, and with Courthigh tide," in Anglo-American law is the average holding that the riparian owners were entitled toof the highest daily tides over a long period. It gain title to the new land formed by the accretionmust be distinguished from the "mean higher high or reliction that was influenced by artificial means.tide" of the Mexican (Spanish) law, which is a Brainard at 23-24 The Brainard case definedhigher or more landward line. The line is accretion as “the process of increasing real estatecalculated over regular tidal cycles of 18.6 years. by the gradual and imperceptible disposition byLuttes v. State, 159 Tex 500, 324 S.W.2d 167, water of solid material, through the operation of181, 191-192 (1958); Campbell v. State, 626 natural causes so as to cause that to become dryS.W.2d 91 (Tex. App. - Corpus Christi 1981, no land that was once before covered by water;” itwrit). Justice Garwood provides a very scholarly defined accretion by alluvion as “the gradualopinion in the Luttes case, an opinion containing a addition made to land by the washing of thereview of Spanish, Roman and Mexican law and water;” and it defined accretion by reliction asa history of tidal waters shorelines. Its reading is “the gradual addition made to and by a recessionrecommended. of the water, as when the water shrinks below the

5. Lakes previously submerged land by a permanentA conveyance of land and adjoining lakes and recession of a body of water, rather than a mere

other bodies of still water generally contain a call temporary or seasonal exposure of the land.”for a margin edge of water, high or low water Brainard at 17. Citing Coastal Indus. Watermark, shore or bank. Such calls establish the Auth. v. York, 532 S.W. 2d 949, 952 (Texasboundary at the edge of the water rather than at 1976), the Texas Supreme Court went on tothe center of the bed. This rule is based on the comment and conclude that where as avulsionpractical impossibility of partitioning such a body may arise from sudden abandonment by a streamof water. Ulbricht v. Friedsam, 159 Tex 607, of it old channel and the creation of a new one, in325 S.W.2d 669, 674 (1959). The Ulbrecht case the present case “the doctrine of accretion”is recommended reading to all practitioners who controlled. While under the doctrine of accretion,may have questions regarding lakefront properties, the owner of riparian land would gain title to landespecially along rivers ultimately dammed to that accretes to his or her property by natural andcreate lakes. imperceptible deposit. Norrell v. Aransas

6. Accretion, Avulsion, or Reliction 298 (Tex. App. – Corpus Christi 1999, no pet.);Any time an individual is dealing with water Ely v. Briley, 959 S.W. 2d 723, 726 (Tex. App. –

and water courses, and the boundaries thereof he Austin 1998, no pet.). “Avulsion” is a sudden andor she must have some familiarity with the perceptible loss or addition of land by the action ofmeaning and effect of accretion, avulsion and water, or a sudden change in the bed or course ofreliction. These terms are often used in a stream. 2 TEX. JUR. 3d, Adjoiningdiscussions involving changes or potential changesto boundaries of property bordering on water orwater courses. As a general rule, where thelocation of the margin or bed of a body of waterthat constitutes the boundaries of land and isgradually and imperceptibly changed or shifted byaccretion, reliction or erosion, the margin or bed ofthe body, as so changed, remains the boundary lineof the tract, which is extended or restrictedaccordingly. Brainard v. State, 12 S.W. 3d 6, 17

ususal water-mark; reliction is the uncovering of

County Navigation Dist. No. 1, 1 S.W. 3d 296,

Landowners § 25 (1995). Gains to or lossesfrom land abutting a stream that take place byavulsion do not effect a change in ownership.Brainard, 12 S.W. 3d at 17; Coastal Indus.Water Auth. v. York, 532 S.W. 2d at 952.

VI. BOUNDARY LINE AGREEMENTSA. Oral Agreements

Boundary lines may be established by an oralagreement. The leading case on oral boundary














8

line agreements appears to be Gulf Oil Corp. v. its existence. Although the agreement will not beMarathon Oil Co., 137 Tex. 59, 152 S.W.2d 711, binding upon a subsequent purchaser without714 (1941). The case held that when there is notice, McCabe v. Moore, 38 S.W.2d 641, 642uncertainty, doubt or dispute as to the location of (Tex. Civ. App. - Austin 1931, writ dism'd), aa boundary, it may be fixed by oral agreement, subsequent purchaser will be deemed to havemutually binding upon the adjoining landowners, notice if improvements have been executed ineven though they may have been mistaken as to accordance with the agreed boundary. Houstonthe true location of the line. The existence of v. Sneed, 15 Tex. 308 (1855). A party to auncertainty, doubt or dispute is essential to the boundary agreement must have some interest invalidity of the agreement. Gulf Oil Corp. v the property. Tilton v. Macejewski, 723 S.W.2dMarathon Oil Co., 152 S.W. 2d at 714. See also 288 (Tex. App. - Beaumont 1987, no writ).McAllister v. Samuels, 857 S.W.2d 768 (Tex.App. - Houston [14th Dist.] 1993, no writ), andThompson v. Jamison, 699 S.W.2d 687 (Tex. A boundary line may be established byApp. - Texarkana 1985, no writ). The line must recognition and acquiescence by all interestednot have been definitely established and must be parties for a sufficient length of time. This perioddoubtful and uncertain. The agreement must not is not precise but is in excess of the time requiredbe an attempt to reproduce the true line. If the by the statute of limitations for the acquisition oftrue boundary line were ascertainable, there would property by adverse possession. Yates v.be no need for the agreement and therefore, it Hogstrom, 444 S.W.2d 851 (Tex. Civ. App. -could be non-binding or invalidated. Duval Houston [14th Dist.] 1969, no writ). To establishCounty Ranch Co. v. Foster, 318 S.W.2d 25, 30 a boundary by acquiescence, one must show that(Tex. Civ. App. – San Antonio 1958, writ ref'd the agreed boundary line, be it by fence orn.r.e.). The oral agreement is not considered to otherwise, was agreed to as a result of aviolate the statute of frauds since the parties do disagreement between landowners over thenot undertake to acquire title but simply to boundary line of their respective properties and thedetermine the location of what they already own. existence of uncertainty, doubt or dispute isLecompte v. Toudouze, 82 Tex. 208, 17 S.W. essential to the agreement’s validity. Mohnke 9151047, 1050 (1891). Likewise, oral agreements S.W. 2d at 595. As in the case of oralestablishing boundary lines, where there is agreements, establishment of a boundary line byuncertainty, doubt or dispute as to the location of acquiescence only applies when there isthe boundary, are not invalidated by the general uncertainty as to the true boundary line.conveying statute found in TEX. PROP. CODE Acquiescence constitutes a strong presumptionANN. § 5.021 (Vernon 1984). An oral boundary except against the state or its subdivisions.agreement, if binding, has the same effect as Although the passage of time for an establishedexecution of a deed to the strip in question. fence is not conclusive of an agreed line, it isHouston Title Guaranty Co. v. Fontenot, 339 strong evidence creating a presumption ofS.W.2d 347, 351 (Tex. Civ. App. - Houston [14th acquiescence. Floyd v. Rice, 28 Tex. 341 (1860);Dist.] 1960, writ ref. n.r.e.). The agreement mustbe executed by the erection of physicalmonuments on the agreed line or by actualpossession or use or by improvement to theproperty with reference to the line. Farmer v.Kornfeuhrer, 271 S.W.2d 501, 502 (Tex. Civ.App. - San Antonio 1954, no writ); Thompson v.Jamison, 699 S.W.2d 687, 688 (Tex. App. - 1985,no writ). The oral agreement is binding upon theparties and subsequent purchasers with notice of

B. Acquiescence

Higgibotham v. Bagley, 346 S.W.2d 142, 144(Tex. Civ. App. - Beaumont 1961, writ disms'd).Acquiescence will also not apply as a matter oflaw if there is no evidence of any agreement otherthan just the acquiescence. It is a fact questionfor a jury. Taylor v. Benton, 390 S.W.2d 509,512-513 (Tex. Civ. App. - Eastland 1965, no writ).The question of whether or not predecessors intitle have established a fence boundary byagreement is generally a question of fact.



















9

Thompson v. Jameson, 699 S.W.2d 687 (Tex. careful not to place plaintiff's title to all of his orApp. - 1985, no writ). Lastly, when one of the her property in issue, if only a part of the realtyparties, by their own acquiescence, misleads the described by his or her deed is in dispute. To doother to his or her injury, the line acquiesced in so may result in loss of title to the entire propertybecomes established by estoppel. including that in which no dispute exists as a

C. Written AgreementsBoundary line agreements should be in entered. Permian Oil Co. v. Smith, 129 Tex. 413,

writing. Written boundary line agreements are 107 S.W.2d 564, 570 (1937). Justice Elwoodrecordable, not susceptible to fading memories, or Fouts, speaking for the Court stated:the elements of nature. Such an agreement canendure for time immemorial if properly drafted. Had the pleadings in this case confinedAll owners and lienholders should join in or the parties to the issue of locating asubordinate their interests to the boundary line boundary, we possibly might face aagreement. Parties not so joined or subordinated different case. The cause of actionwill not be bound, unless the evidence shows which was asserted against theratification and adoption. Gulf Oil Corp. v. defendant by the plaintiff in the trespassMarathon Oil Co., 152 S.W.2d at 721. The to try title suit of Monroe v. Hickox,agreement should contain appropriate quitclaim pleaded in general form, was the claimlanguage subject to any easements, liens, to the title and possession of the landrestrictions, mineral interests or other described. The defendant’s plea ofencumbrances. As an added note, attention not guilty admitted his possession andshould be paid to Texas Agriculture Code put in issue the plaintiff’s cause ofAnnotated §143.121 (Vernon 1982 and action. The plaintiff failed and theSupplement 2000), and Texas Penal Code defendant prevailed. In such anAnnotated §28.03 (Vernon 1994 and Supplement instance both the title and the2001)should be reviewed to prevent violation for possession of defendant waswrongful fence removal in arriving at any established as between the parties byboundary line agreement. the judgment. In this state a petition

VII. L I T I G A T I O N I N V O L V I N GBOUNDARIESActions to try title might involve questions of a number of facts may determine the

boundaries, but this does not in and of itself make issue, but the cause of action remainsevery such case a boundary line case. Chanoux the same. If the plaintiff seeks to limitv. Title Insurance Co., 258 S.W. 2d 867-868 the issue to one of such facts, he must(Tex. Civ. App. - El Paso 1953, writ ref'd. n.r.e.). do so by special pleading in appropriateA trespass to try title suit is a proper method of form. By so doing he may limit the casesettling boundary questions, though not the only to the portion of his land involved in themethod. Long v. Chapman, 151 S.W.2d 879, 880 boundary dispute, or possession, or to(Tex. Civ. App. - Fort Worth 1941, no writ). some other incident of title. Permian OilBoundary line litigation does not require a plaintiff Co. at 570 [emphasis supplied, not thatto prove superior title to the degree required in of the Court].trespass to try title actions. A recorded deed issufficient to show an interest in the disputed A high degree of care should be taken toproperty. Brownlee v. Sexton, 703 S.W.2d 797, accurately describe only the property in800 (Tex. App. - Dallas 1986, writ ref'd. n.r.e.). dispute in the plaintiff’s petition. In litigation

In a boundary dispute, attorneys should be involving boundary disputes over privately held

formal pleading of trespass to try title puts bothtitle in issue which defendant plea of not guilty is

limited to the statutory form oftrespass to try title always put in issueboth title and possession. Any one of






10

land, retaining a surveyor to review the property nature of the suit is determined for venue purposesdescriptions in muniments of title, perform an from the plaintiff's pleadings. Spiritas Holdings,accurate survey on the ground, and be prepared to Inc. v. Darling-Delaware Company, Inc., 875testify concerning the findings is a must. Van S.W.2d 14, 16 (Tex. App. - Fort Worth 1994, writZandt v. Holmes, 689 S.W.2d 259 (Tex. App. - denied); Energy Reserves Group, Inc. v. TarinaWaco 1985, no writ) has concisely set forth the Oil Co., 664 S.W.2d 169, 171 (Tex. App. - Santest to be utilized to determine whether or not a Antonio 1983, no writ); Pinkston v. Johnson, 578suit is a trespass to try title or boundary dispute S.W.2d 184, 186 (Tex. Civ. App. - Waco 1979, nocase. Questions of title notwithstanding, if there is writ).no case but for the boundary question, then it is aboundary suit. Id at 261-262; See also Brownleev. Sexton, 703 S.W.2d 797 (Tex. App. - Dallas A person must have a right to assert1986). The ruling in Nye v. Hawkins, 65 Tex. ownership to property to prevail in a boundary line600 (1866) established early on that suits to dispute Farrow v. Simms, 311 S.W.2d 473, 478establish a boundary may not be maintained in (Tex. Civ. App. - Dallas 1957, writ ref'd. n.r.e.).equity where total relief can be obtained by a While title is not necessarily an essential elementtrespass to try title proceeding. Still, equity may of a boundary line suit, title and right to possessionwell be ancillary to the boundary question where are essential elements of a suit in trespass to trythere is misconduct on the part of an individual title. Thus, a plaintiff in a trespass to try title suithaving a special duty requiring him or her to must have a present legal right to lawfully possesspursue or perpetuate the boundary in question. the land in question. The only necessary party

A. JurisdictionExclusive jurisdiction for trespass to try title 118 (Tex. App. – Houston [14 Dist.] 1985, writ

suits is in the district courts by virtue of Texas ref’d n.r.e.). A proper defendant is one who hasConstitution Article V Section 8. Chapter 25, possession, with or without claim to title, or claimsTexas Government Code (Vernon 1988 and in interest in title, with or without possession. SeeSupplement 2001)has granted certain statutory TEX. R. CIV. P. 784. A necessary party is onecounty courts jurisdiction to hear trespass to try who is so vitally interested in the property intitle cases, to-wit: Harris, Hopkins, Nueces, Smith, question that a valid judgment could not beStarr, and Tarrant Counties. Additionally, any rendered without his presence. Stanolind Oil &probate court or court properly having probate Gas Co. v. State of Texas, 136 Tex. 5, 133jurisdiction may hear suits involving title to real S.W.2d 767, 770 (1939), mod'd on otherproperty so long as the same are incident to an grounds, 136 Tex. 5, 145 S.W.2d 569. Properestate. TEX. PROB.CODE ANN §5 (Vernon parties include landlords, remaindermen,1980 and Supplement 2001). reversioner or others who may claim any part of

B. VenueVenue is mandatory in the county where the 786 allows a mortgagor to intervene as a matter of

land or any part thereof is situated. TEX. CIV. right. Williams v. Ballard, 722 S.W.2d 9,11 (Tex.PRAC. & REM. CODE ANN §15.011 (Vernon App.-Dallas 1986, no writ). A plaintiff claimingSupp. 1998 and Supplement 2001). Proper venue title by limitation should join all joint owners of theis determined by the character of the lawsuit as a disputed property in order to defeat title in all ofwhole, and inclusion of a plea in trespass to try them. Conversely, one tenant in common or jointtitle cannot by itself change the character of the tenant may maintain a trespass to try title suitlawsuit nor the proper venue therefor. Phillips against a trespasser without joining the otherPetroleum Co. v. Mecom, 375 S.W.2d 335, 339 cotenants, and may recover the entirety of the(Tex. Civ. App. - Austin 1964, no writ). The common property against the trespasser for the

C. Parties

defendant is the party in possession. KennesawLife & Acc. Ins. Co. v. Gross 694 S.W. 2d 115,

th

or interest in the disputed property, TEX. R. CIV.P. 785, or warrantors, TEX. R. CIV. P. 786. Rule
















11

benefit of all cotenants. Boone v. Knox, 80 Tex. such facts as show the plaintiff to be entitled642, 16 S.W. 448 (1891). thereto and the amount thereof.

D. Plaintiff's PetitionTexas Rule of Civil Procedure 783 contains sought.

the requirements for a statutory petition in trespassto try title, but Rule 783 does not apply to a pure The formal averments as set forth in Ruleboundary suit. Yet, there are similarities in the 783 are all that is required to establish jurisdictiontwo pleadings. These similarities lend themselves in the trespass to try title action. A petitionto discussion in the context of Rule 783's alleging nothing more is legally sufficient Yoast v.requirements. Yeast, 649 S.W. 2d 289, 292 (Tex. 1983).

A petition in a boundary suit must describe Manured v. Texas Power & Light Co., 448the land [the boundary in dispute] by metes and S.W.2d 566, 568 (Tex. Civ. App. - Fort Worthbounds. Dotson v. Allen, 259 S.W.2d 343 , 1969, no writ). Under these formal averments a344(Tex. Civ. App. - Eastland 1953, writ ref. plaintiff can recover upon a showing of equitablen.r.e.). The boundary line or lines in question as well as legal title. Binford vs. Snyder, 144should be identified by objects found on the ground Tex. 134, 189 S.W.2d 471, 473 (1945). The lawand ambiguous calls should be avoided. Any recognizes that the petition in a formal action ofpresent or past boundary line agreements as well trespass to try title is often fictitious. Maxwell v.as the ratification thereof should be plead. Rule Campbell, 282 S.W.2d 957, 959 (Tex. Civ. App. -783 requires, a petition for trespass to try title to Waco 1955, writ ref'd).include:

5. The real names of the plaintiff and defendant Multiple types of allegations may be joinedand their residences, if known. with either a boundary suit pleading, trespass to

6. A description of the property by metes and Many times a boundary dispute will be plead withbounds, or with sufficient certainty to identify a trespass to try title cause of action. Commonly,the same, so that from such description a plea to quiet title or a plea to remove cloud onpossession thereof may be delivered, and title will be pled in conjunction with a trespass tostate the county or counties in which the try title allegation. An action for damages to landsame are situated. sought to be recovered may also be joined to a

boundary suit or a trespass to try title suit.7. The interest which the plaintiff claims in the

property, whether it be a fee simple or otherestate; and, if he or she claims an undivided The property or boundary line which is theinterest, the petition shall state the same and subject matter of a suit should be described inthe amount thereof. plaintiff's petition by metes and bounds or

8. That the plaintiff was in possession of the possession upon final judgment of the court. Thepremises or entitled to such possession. plaintiff has the burden of adequate description of

9. That the defendant afterward unlawfully which boundary plaintiff seeks to establish orentered upon and dispossessed him or her of which lands plaintiff seeks to recover. Valdez v.such property, stating the date, and withholds Barrera, 647 S.W.2d 377, 382 (Tex. App. - Sanfrom him or her the possession thereof. Antonio 1983, no writ). Failure to adequately

10. If rents and profits as damages are claimed, against owners of record, Coleman v. Waddell,

11. It shall conclude with the prayer for the relief

E. Multiple types of allegations

try title, suit to quiet title, or specially pled title.

F. Property Description

otherwise as sufficient to allow delivery of

the property so as to put defendant on notice of

describe the realty in dispute precludes recovery









12

151 Tex. 337, 249 S.W.2d 912, 913 (1952). copies of such instrument, with the names of the

G. DiscoveryBoundary line litigation holds no mystique, the parties shall state the nature of the instrument and

same discovery rules applicable to all civil suits are its loss or destruction. Thus, the abstract of titlealso applicable in a boundary suit. Interrogatories, needs to set forth only the documentary evidencerequests for admissions, requests for production of upon which the party expects to rely in showingdocuments, depositions, requests for disclosure title. Davis v. Dewlen, 136 S.W. 2d 900, 904and other discovery tools should be utilized where (Tex. Civ. App.-Beaumont 1939, writ dism’d);appropriate. The prudent practitioner may also Jay v. United Fidelity Life Insurance, 285want to utilize two discovery tools of particular use S.W.2d 957, 958 (Tex. Civ. App. - Amarillo 1955,in trespass to try title actions--an abstract of title writ ref'd n.r.e.). Limitation title is included withinand a surveyor. the scope of Rule 793, Reeves v. Fonville, 267

1. Abstract of Title 1954, no writ). More precisely, the rule appliesTexas Rules of Civil Procedure 791 through where defendant seeks to uncover a plaintiff's

794 deal with demand for abstract of title, muniments of title establishing a limitation claim,amendment of abstract of title, time for filing and but does not apply when evidence in support of acontents of abstract, in trespass to try title cases. plea of limitation is a defense to defeat plaintiff'sSince a boundary dispute may be involved in a claim to disputed property. Davis v. Dewlen, 136trespass to try title suit, the practitioner is urged to S.W.2d at 904; Reeves v. Fonville, 267 S.W. 2dbe familiar with these rules. A brief discussion is at 240: Hays v. Hinkle, 193 S.W. 153 (Tex. Civ.in order. App. - Texarkana 1917, writ ref'd n.r.e.).

Rule 791 provides that either party may, by Rule 794 permits a court to allow either partynotice in writing duly served, demand an abstract to file an amended abstract of title. A completeof title to the premises in question. This must be abstract may be critical to a case, as this samemade not less than ten (10) days before the trial of rule limits the documentary evidence of title at trialthe cause. Since Rule 792 allows the party served solely to those matters contained in the abstract ofwith the demand for abstract of title twenty (20) title. A local title company (for a price) may bedays to file his abstract unless the court shortens very helpful and cost-effective in preparing athe time for filing, a demand for abstract should be complete abstract. After due service of a demandmade early in the course of discovery. for abstract, Rule 792 provides a twenty day

The purpose of Rules 791 and 792...is to deadline for filing an abstract of title with theenable the person demanding such abstract to papers of the cause. On good cause, the courtinvestigate the records and thereby determine the may extend time for filing the abstract. Goodcharacter of the instruments upon which the cause requires a showing that the additional timeopposing party relies, so that an informed defense is not prejudicial nor would result in an injustice.may be prepared. Corder v. Foster, 505 S.W. 2d Corder v. Foster, 505 S.W.2d at 648 (Tex. Civ.645, 648 (Tex. App. – Houston [1 Dist.] 1973, App. - Houston [1st Dist.] 1973, writ ref'd n.r.e.);st

writ ref’d n.r.e.). Rule 793 provides that an Walker v. Barrow, 464 S.W.2d 480, 488 (Tex.abstract shall state the nature of each document or Civ. App. - Houston [1st Dist.] 1971, writ ref'dwritten instrument intended to be used as evidence n.r.e.). However, failure to file within theand its date; or if a contract or conveyance, its prescribed time results in denial of the failingdate, the parties thereto and the date of the proof party's right to produce any evidence of his or herof acknowledgment, and before what officer of claim or title at trial TEX. R. CIV.P. 792. Hunt v.the same was made; and where recorded, stating Heaton, 631 S.W.2d 549, 550-551 (Tex. Civ.the book and page of the record. If the document App. - Beaumont 1974), aff'd, 643 S.W.2d 677;is not recorded in the county where trial is had, Mize v. Wood County, 460 S.W.2d 152, 155

subscribing witnesses, shall be included, or if suchunrecorded instrument is lost or destroyed, the

S.W.2d 238, 240 (Tex. Civ. App. - Texarkana















13

(Tex. Civ. App. - Tyler 1970, no writ). The party surveyor appointed by the court is adverse, he orfailing to file is without remedy to protect his or she should consider filing a motion in limine toher rights no matter how clearly he or she may be strike ultimate factual determinations andentitled to protection by proving his or her conclusions of the surveyor in addition to a motionownership of the property in contest. The lawsuit in limine to prevent the jury being advised that theends and he loses his property without more ado. surveyor was appointed by the court or,Davis v. Dewlen, 136 S.W.2d at 904. Note that alternatively, to request an instruction by the courtfailure or refusal to file an abstract after the to the jury that the report of the surveyor isdemand does not preclude the failing or refusing entitled to no greater weight than that of any otherparty from introducing evidence of his or her witness. The Texas Supreme Court has held thatevidence against an intervener who was not the the report of a surveyor appointed by the court isdemanding party. Coler v. Alexander, 128 S.W. entitled to no greater weight than another witness664, 666 (Tex. Civ. App. 1910, no writ). Also, cognizant of the facts referred to in the report.where the plaintiff's pleadings supply information Kerlicks v. Meyer, 84 Tex. 158, 19 S.W. 379which an abstract would contain, evidence of title (1892). A surveyor appointed by the court issupporting the pleadings is admissible, even when entitled to reasonable compensation to be taxed asa demanded abstract is not filed. Such admission costs against the losing party. Beaumontof evidence is harmless error. McCraw v. City of Irrigating Co. v. DeLaune, 173 S.W. 514, 516Dallas, 420 S.W.2d 793, 798 (Tex. Civ. App. - (Tex. Civ. App. - Galveston 1915, no writ). SuchDallas 1967, writ ref'd n.r.e.); Van Zandt v. costs may include the work involved withHolmes, 689 S.W.2d at 262. generating his report, as well as a witness fee for

2. Appointment of Surveyor 541,544 (Tex. Civ. App. - Fort Worth 1979, noTexas Rule of Civil Procedure 796 authorizes writ). Whether the court appoints a surveyor or

a court to appoint a surveyor for purposes of not, the parties should consider retaining asurveying the property in controversy. This surveyor to assist in preparation of their case andappointment may be made upon motion of either to provide expert testimony at trial to establish theparty or by the court on its own motion. Unless precise location of the disputed land.good cause is shown, the surveyor's report shall beadmitted as evidence at trial.

Texas Rule of Civil Procedure 797 provides Documentary evidence to prove title isthat a survey is unnecessary where there is no admissible in many forms. What the practitionerdispute as to the lines or boundaries of the land in is looking for is competent documentary evidencecontroversy or where the defendant admits which tends to prove the location of a disputedpossession of the lands included in plaintiff's claim. boundary. It may include deeds, certificates for

Where a survey is required, the surveyor headright, patents, land scrips, bounty warrants,should report to the court any natural or artificial field notes of the survey, field notes of anlandmarks which indicate the true location of lines adjourning survey, or any other evidence of legalon the ground. Schunior v. Russell, 83 Tex. 83, right to located and surveyed land sufficient to18 S.W. 484 ,488 (1892). A report which does not show the true location of the disputed boundary ordo so is defective and a motion to suppress is to maintain a trespass to try title action. TEX.properly sustained. Westbrook v. Guderian, 22 PROP. CODE ANN. §22.002 (Vernon 2000).S.W. 59 (Tex. Civ. App. 1893, no writ). Prior judgments may serve as muniments of title.Schunior v. Russell, 18 S.W. at 488, further held Truehart v. McMichael, 46 Tex. 222 (1876).that conclusions and factual determinations Deeds, land grants, patents, field notes, maps,invading the province of the jury contained in a plats, surveyor's reports and abstracts of title aresurveyor's report should be excluded upon proper admissible. The general rules governing themotion. Thus, if one finds that the report of a construction of deeds or other instruments granting

testifying at trial. Whitley v. King, 581 S.W.2d

H. Documentary Evidence





14

real property are applicable in construing a map or damages to the plaintiff.plat. Jupe v. City of Schertz, 604 S.W.2d 405(Tex. Civ. App. - San Antonio 1980, writ ref, 1. Texas Property Code,§22.021 (Vernon 2001)n.r.e.). An instrument of lien is not a muniment of 22.021 Claim for Improvementstitle and is not admissible to establish title. Moore-head v. Ellison, 120 S.W. 1049, 1050 (Tex. Civ. a. A defendant in a trespass to try titleApp. - 1909, writ ref'd n.r.e.). action who is not the rightful owner of Original land grants in Texas were granted by the property, but who has possessed thethe Spanish, Mexican and Republic of Texas property in good faith and madegovernments in the 18 and 19 centuries. TEX. permanent and valuable improvementsth th

GOVT. CODE ANN. §441.202 (Vernon 1998 to it, is either:and 2001 Supplement) [formerly TEX. REV.C.V. STAT. ANN. art. 250] deems these and (1) entitled to recover the amount byother “ancient” documents to be archives of the which the estimated value of theGeneral Land Office. As such, when properly defendant's improvements exceedsauthenticated, they are admissible without proof of the estimated value of the defendant'sexecution. Houston v. Perry, 5 Tex. 462 (1849). use and occupation of and waste or

I. Claim for ImprovementsA claim for improvements misplaced as a

result of boundary error may be allowed in aboundary dispute case whether tried as a trespassto try title suit or an independent action. Murphyv. Benson, 245 S.W. 249, 254 (Tex. Civ. App. -Austin 1923, writ ref’d). A defendant or person inpossession may claim an allowance forimprovements in the event his or her right ofpossession is lost. Additionally, a defendant mayrequest a right to remove improvements made tothe property in dispute. These are alternativerequests for relief which are made to reduce thedefendant's loss in the event the defendant loseshis or her right of possession.

In order to assert a claim for improvements,the defendant must show: (1) adverse possessionof the premises in controversy for at least oneyear prior to commencement of the suit; (2)permanent and valuable improvements to the landin dispute during the time of possession in goodfaith; and (3) the nature of the improvements andtheir value.

The statutory framework allows an offsetsituation between the value of the improvementsclaimed by the defendant and the possible claimfor rents and profits which may be asserted by theplaintiff. Thus, a judgment could ultimately berendered requiring either the plaintiff to paydamages to the defendant or the defendant to pay

other injury to the property; or

(2) liable for the amount by which thevalue of the use and occupation of andwaste and other injury to the propertyexceeds the value of the improvementsand for costs.

b. In estimating values of improvementsor of use and occupation:

(1) improvements are valued at thetime of trial, but only to the extent thatthe improvements increased the valueof the property; and

(2) use and occupation is valued forthe time before the date the action wasfiled that the defendant was inpossession of the property, butexcluding the value resulting from theimprovements made by the defendantor those under whom the defendantclaims.

c. The defendant who makes a claimfor improvements must plead:

(1) that the defendant and those underwhom the defendant claims have hadgood faith adverse possession of the



15

property in controversy for at least one the removal of the improvements.year before the date the action began;

(2) that they or the defendant made Texas Rules of Civil Procedure 799 and 800,permanentand valuable improvements permit judgment by default in trespass to try titleto the property while in possession; suits. Where the defendant has been personally

(3) the grounds for the claim; permits judgment for plaintiff without any proof of

(4) the identity of the improvements; defendant are present, some of whom answer andand some of whom default, and where the plaintiff's

(5) the value of each improvement. those of trespass to try title, Rule 240 exempts the

d. The defendant is not liable for has been disposed as to all defendants. Rio Bravodamages under this section for injuries Oil Co. v. Hunt Petroleum Corp., 439 S.W.2dor for the value of the use and 853, 861 (Tex. Civ. App. - Tyler 1969), ref’d onoccupation more than two years before other grounds, 455 S.W.2d 722 (1970).the date the action was filed, and the Where the defendant has been cited only bydefendant is not liable for damages or publication, the plaintiff must introduce sufficientfor the value of the use and occupation evidence to show a prima facie right of recovery.in excess of the value of the TEX. R. CIV.P. 800.improvements. In boundary dispute litigation, a default

2. Texas Property Code,§22.041 (Vernon 2001) that some evidence of the boundary location beConversely, Texas Property Code, put on the record.

§22.041(Vernon 2001) allows a defendant torequest the right to remove permanent andvaluable improvements to lands occupied by the 1. Plea of "Not Guilty" or General Denialdefendant under a claim of adverse possession. If a boundary suit does not involve title, thenThe defendant must allege that he or she had and in that event, a general denial answer isadverse possession of the premises in controversy sufficient. The defendant may also answerwithout the intent to defraud and that he or she or admitting that he or she owns the propertythose under whom he or she claims made adjoining plaintiffs as alleged in the complaint butpermanent and valuable improvements on the land that plaintiff's survey upon which he or she relieswithout the intent to defraud; the defendant must is erroneous. However, if the boundary disputealso identify the improvements and pray for also involves a claim of title, Texas Rule of Civiljudgment allowing removal of the improvements Procedure, Rule 788. provides that the defendantupon giving of a good and sufficient surety bond. in such action may file only the plea of “notIf at trial the defendant loses the right of guilty”, which shall state in substance that he is notpossession and is found to have made permanent guilty of the injury complained of in the petitionand valuable improvements on the land in good filed by the plaintiff against him or her. If thefaith and without the intent to defraud, then the defendant claims an allowance for improvements,trier of fact must determine whether or not the he or she shall state the facts entitling him or herimprovements can be removed without substantial to the same. While the rule clearly states that theand permanent damage to the land. If removal is formal pleading of "not guilty" is required, thepossible, the court then fixes the amount of the courts of Texas have held that a general denialsurety bond and appoints a referee to supervise serves the same function and places the burden on

J. Default Judgment

served with citation and fails to appear, Rule 799

title by the plaintiff. Where multiple parties

petition contains causes of action in addition to

defaulting defendants from final judgment until suit

judgment may be entered but it is recommended

K. Defendant's Answer



16

the plaintiff to prove title in himself. Cox v. conducted according to the rules of pleading,Olivard, 482 S.W.2d 682 (Tex. Civ. App. - Dallas practice and evidence in other cases in the district1972, writ ref'd n.r.e.); Brinkley v. Brinkley, 381 court and conformable to the principles of trial byS.W.2d 725, 727 (Tex. Civ. App. - Houston 1974, ejectment, except as otherwise provided by theno writ). Of note, these procedures of filing a rules. TEX. R. CIV.P. 795. Title issues aregeneral denial were approved by the Texas subject to the same rules regarding authenticity,Supreme Court in Harlan’s Heirs v. Haynie, 9 admissibility, and ancient documents as apply toTex. 459 (1853), only nine years of passage of the other civil actions.plea of not guilty in a trespass try title suit wasfirst provided for by the Congress of the Republic a. Presumptions and Burden of Proofof Texas in 1844. Gammel’s Laws of Texas, Vol. In a trespass to try title suit, possession of2., pp. 68, 70, Brinkley at 727 land raises a presumption of ownership in fee

2. Issues Raised facie evidence thereof. Permian Oil Co. v.Texas Rule of Civil Procedure 789 states that Smith, 129 Tex. 413, 107 S.W.2d 564, 570 (1937);

under such plea of not guilty, the defendant may Watkins v. Mith, 91 Tex. 589, 45 S.W. 560, 562give in evidence any lawful defense to the action (1898). The presumption is rebuttable. Lund v.except the defense of limitations, which shall be Doyno, 127 Tex. 19, 91 S.W.2d 315, 316 (1936).specially pled. By entering this plea, the defendant In a trespass to try title, it is the claimant's burdenis entitled to prove any legal or equitable defense, to prove good title in himself or herself to defeatexcept limitations. Briggs v. Freeway Park the presumption. If he or she fails to do so, theDevelopment Co., 366 S.W.2d 270, 271 (Tex. possessor is entitled to judgment against theCiv. App. - Fort Worth 1963, writ ref'd n.r.e.). claimant, divesting claimant of whatever claim heThe plea of "not guilty" in a trespass to try title suit or she had. Plaintiff may prevail by claiming andraises no issue of fact at a summary judgment proving possession prior to defendant's possession,hearing. Snider v. Foremost Lumber Co., 448 thus shifting the burden of going forward withS.W.2d 130,135 (Tex. Civ. App. - Tyler 1969, no evidence to the defendant. Fields & Co. v.writ). “As we understand the requirements of Allison, 171 S.W. 274, 277 (Tex. Civ. App. - SanRule 166-A,...the existence of issuable facts must Antonio 1914, no writ). This does not shift thebe shown by competent summary judgment burden of proof, which remains on the plaintiff.evidence. Snider at 135. In a motion for summary Plaintiff must recover, if at all, on the strength ofjudgment hearing, the defendant should present his own title and may not simply rely on theaffidavits or other competent summary judgment weakness of another party’s claims. Omohundroevidence to defeat the motion, rather than simply v. Jackson, 36 S.W. 3d 677, 680 (Tex. App. – Elrelying on his answer. Paso 2001 no pet.) Defendant may prevail over

3. Admission of Possession no title in plaintiff. Stringfellow v. Brown, 326The plea of not guilty relieves the plaintiff of S.W.2d 1, 3(Tex. Civ. App. - Fort Worth 1959, no

having to prove a trespass since the plea writ).constitutes an admission by defendant that he is in In a boundary suit, the plaintiff bears thepossession of or claims title to the realty in dispute. burden of proving his or her claim just as in anyBrohlin v. McMinn, 161 Tex. 319, 341 S.W.2d other civil proceeding, to-wit: he or she must420, 422 (1960). prove, by a preponderance of the evidence the

L. Trial1. Applicable Rules App. - Corpus Christi 1979, writ ref’d n.r.e.). On

Again no mystique, the trial, whether a pure the other hand, the burden of proving the defenseboundary dispute or trespass to try title, shall be that the parties had entered into an agreement

simple in the name of the possessor and is prima

the doctrine of prior possession only by showing

location of the boundaries alleged on the ground.Plata v. Guzman, 571 S.W.2d 408, 412 (Tex. Civ.
















17

fixing the boundary rests with the defendant. as to whether or not the boundary call is aMarathon Oil Company v. Gulf Oil Corp., 130 meander line or a boundary line, Ulbricht v.S.W.2d 365, 377 (Tex. Civ. App. - El Paso 1939, Freidsam, 325 S.W.2d at 672; State v. Brazosmodified), 152 S.W.2d 711 (Tex. 1939). While a River Harbor Navigation District, 831 S.W.2ddefendant may prevail over the doctrine of prior 539 (Tex. App. - Corpus Christi, 1992, writpossession in a trespass to try title suit, the same denied), as are the matters considered inis not true in a boundary dispute not involving title determining the location of a boundary, Jobe v.but merely location of the boundary. There are no Osborne, 68 S.W.2d 375, 378 (Tex. Civ. App. -presumptions in a boundary suit except as to the Texarkana 1933, ref’d on other grounds), 97survey. The surveyor is presumed to have S.W.2d 939 (Tex. 1934). The relative importanceperformed his official duty and surveyed all the of conflicting locative calls is a question of lawlines he called for to the corners and marked the absent any evidence of the footsteps of theboundaries according to the field notes as certified original surveyor preparing the field notes, or anyto by him or her. Kirby Lumber Corp. v. evidence, as to where he or she actually on theLindsey, 455 S.W.2d 733, 739 (Tex. 1970); ground surveyed the line. Walker v. Bailey, 69Knupp v. Millen, 858 S.W.2d 945 (Tex. App. - S.W.2d 780, 782 (Tex. Civ. App. - TexarkanaBeaumont 1993, writ denied). A surveyor’s work 1934, no writ). The interpretation of Land Officeis presumed to be truthful and accurate. Lamb v. records in determining the true boundary is aBonds & Dillard Drilling Corp., 107 S.W.2d question of law. Humble Oil & Refining500, 503 (Tex. Civ. App. - El Paso 1935, no writ); Company v. State, 162 S.W.2d 119, 128 (Tex.Franklin v. Texas Saving & Real Estate Civ. App. - Austin 1942, writ ref'd).Investment Association, 119 S.W. 1166, 1168 On the other hand, if the facts are disputed,(Tex. Civ. App. - Houston 1909, no writ). the issue of where a boundary line is located is aRemember in a pure boundary dispute case, the question of fact for jury determination.plaintiff need not prove superior title but only Finkelstein v. Carpenter, 795 S.W.2d at 899.competent evidence of his or her interest in the (Tex. App. - Beaumont 1990, writ denied). Theproperty. Brownlee v. Sexton, 703 S.W.2d 797 jury, as can readily be ascertained from the Jobe(Tex. App. - Dallas 1986, writ ref. n.r.e.). The case and the Walker case as well as multiple earlyCourt will not enter judgment disturbing boundaries Texas cases, is charged with the responsibility towhich have been recognized for years except on determine questions related to where a surveyorthe most cogent and compelling evidence. Strong intended to place a line of survey, if in fact thev. Delhi-Taylor Oil Corp., 405 S.W.2d 351, 375 intended lines were actually run on the ground, and(Tex. Civ. App. - Corpus Christi 1966, writ ref’d if so, which lines were actually run. The jury willn.r.e.). The plaintiff must present competent also determine questions of acquiescence orevidence by which the line can be exactly recognition of a boundary at a certain place asascertained and defined. Prince v. Flukinger, alleged by a plaintiff where such is disputed.381 S.W.2d 75, 77-78 (Tex. Civ. App. - Humble Oil & Refining Company v. Patton, 344Texarkana 1964, no writ); Brown v. Eubank, 378 S.W.2d 234, 239 (Tex. Civ. App. - TexarkanaS.W.2d 707, 713 (Tex. Civ. App. - Tyler 1964, 1961, writ ref'd, n.r.e.); Duval County Ranchwrit ref’d n.r.e.); Rubiolo v. Lytle, 370 S.W.2d Company v. Foster, 318 S.W.2d at 30.202, 205 (Tex. Civ. App. - San Antonio 1964, writref. n.r.e.). c. Instructions

b. Questions of Law and Fact a jury to follow the footsteps of the surveyor, andAs with any other litigation, the practitioner to construct lines where he or she left footsteps.

will be faced with questions of law and questionsof fact. Where the facts are undisputed as to thelocation of a boundary line, it is a question of law A judgment entered in a boundary case must

The charge should be framed so as to allow

M. Judgment





























18

establish the boundary line by natural or artificial STAT. ANN. art. 5421c, now TEX. NAT. RES.monuments or in some other way, so that the CODE ANN.§§51.171 through 51.202 authorizesboundary lines can be identified on the ground. If and governs the location, sale and lease of vacantthe judgment does not fix the location on the and unsurveyed public school land. Forground of the disputed common boundary, it fails convenience, it will be hereinafter referred to asto dispose of the controversy between the parties the "Act" and all cited sections are to the Act.and is fatally defective. Higginboham v. Davis, As stated, the Act authorizes the location,35 S.W. 3d 194, 198 (Tex. App. – Waco 2000, sale and lease of vacant and unsurveyed publicpet. denied) If a judgment fails to do so it is void. school lands with certain specified exceptions, to-Plata v. Guzman, 571 S.W.2d at 408; Hill v. wit: submerged lands within tidewater limits; allWalker, 140 S.W. 1159, 1162 (Tex. Civ. App. - islands, flats, and emergent lands within tidewaterAustin 1911, writ ref'd). A trial court cannot have limits; natural lakes; and riverbed, includingthe boundary line marked and monument in a case channels and islands in riverbed, above tidewaterinvolvingcounties before entering final judgment. limits. The Act does not alter or diminish the publicIn Re Tarrant County, 16 S.W. 3d at 918; See domain status of the surface estate of riverbedsalso TEX. LOC. GOV. CODE ANN. §72.009 and channels and islands in riverbed, that are(Vernon 1999). located above the tidewater limits. §51.171(b).

Simply stated, the verdict and judgment In Butler v. Sadler, 399 S.W.2d 411 (Tex.should definitely fix and establish the location of Civ. App.-Corpus Christi 1966, writ ref’d n.r.e.),the line in dispute. It should reference known the Corpus Christi Appeals Court had anobjects, the identity and locality of which are not opportunity to construe the Act as related to thedisputed. A competent surveyor should be able to sale of submerged lands. Appellants had filed suitfind the line on the ground by the description set in the district court of Cameron County, Texas,out in the judgment. Lastly, the judgment should alleging existence in that county of vacant,always conform to the pleadings, proof and unsurveyed public school lands as described inverdict, it should not contain a materially different their pleadings. The proceeding in the district courtdescription of the boundary. Whitmore v. filed by the appellants was an appeal from theMcNally, 39 S.W.2d 633, 635 (Tex. Civ. App. - order of the Texas Land Commissioner who hadAmarillo 1931, no writ). determined that 'no vacancy' could possibly exist

VIII. VACANCIESA. Creation

Vacancies are created as a result of preferential right to purchase or lease such landsunsurveyed public lands. Most vacancies were by virtue of the Act. Appellees, defendant in thecreated early on in the Republic of Texas' history. trial court, filed motions for summary judgmentVacancies are held by the State of Texas in trust supported by affidavits, exhibits and depositionsfor the benefit of the Public School Fund. Simply contending that as a matter of law no vacancystated, for a tract of land to be vacant it must be could exist in the area covered by the appellants'unsurveyed public land and it must not be in application. Appellants also filed a motion forconflict on the ground with lands previously titled, summary judgment, along with controvertingawarded or sold. Atlantic Refining Co. v. Neal, affidavits and other exhibits. The trial court443 S.W.2d 35,(Tex. 1968);Strong v. Sunray DX granted summary judgment in favor of theOil Company, 448 S.W.2d at 743; See also TEX. defendants and denied the motion for summaryNAT. RES. CODE ANN. §51.172(6) (Vemon judgment filed by the plaintiffs. Plaintiffs appealed.2001). Appellants' application and petition alleged that

B. The Vacancy ActThe Vacancy Act, former TEX. REV. C.V. flats. Appellants contended that this is new land,

on the lands in question. Appellants' suit allegedthat they were entitled to establish the existence ofvacant unsurveyed public school lands and their

there existed as a possibility vacant unsurveyedpublic school land which they describe as mud









19

formed between the shoreline of Laguna Madre Justice Nye then quoted from the appellants' brief:as it existed in 1829, and the shoreline as it existstoday along the east side of the Buena Vista 'Let us go straight to the heart of theGrant. Appellants had described the land in their matter. Our case depends uponpetition as follows: acceptance of the thesis that submerged

One the West by the Potrero de Buena subject to the Vacancy Act (Art. 5421c)Vista Grant 1-465, originally granted to and entirely separate and distinct fromManuel de la Garza Sosa by the State of lands which are **** we assert thatTamaulipas, Republic of Mexico; on the areas which at some earlier time mightSouth and East by the Potrero Santa de have been submerged become subject toIsabel grant and Laguna Madre; on the purchase or lease under the vacancyNorth by Laguna Madre, and on the statute if they later lose their characterEast by Laguna Madre, it being intended as submerged lands ***’Butler at 414.by said application to include all of theunsurveyed public school land lying Before briefing the legal history of the State'sbetween said Potrero de Buena Vista ownership of waters and submerged lands withinGrant and Laguna Madre. Butler at the tidewater limits of the Gulf of Mexico, Justice413. Nye described appellants’ contention:

The appeals court in describing the location of the Appellants contend in effect that therearea in question stated: is a new category of land which had

The Potrero de Buena Vista Grant and bounded by their description. Whereas,the Potrero Santa de Isabel Grant, are a formerly all of the land was either titledpart of the mainland of Texas. The east land or submerged land belonging to theside of the grants front on the Laguna State, there is now an intervening areaMadre. These two grants extend of unsubmerged land subject to thegenerally along the west side of the provisions of the vacancy statute.Laguna Madre from the Arroyo Appellants argue that this land is notColorado on the north to a point near, listed in any way in the records of thebut some distance from the Rio Grande General Land Office as fast land.River on the south. The Laguna Madreis a continuous body of water running The appellants likened the land whichfrom Corpus Christi Bay on the north to they contend exists as unsubmergedthe Brazos-Santiago Pass on the south land as those lands described in theand connects with the Gulf of Mexico case of Luttes v. State, 159 Tex. 500,on both ends. On the east side of the 324 S.W.2d 167, Sup.Ct. 1958. TheyLaguna Madre is a long strip of land contend that some of these mud flats incalled Padre Island which runs almost this area may be accretion to the uplandthe entire length of the coast between and hence property of the uplandCorpus Christi and Brownsville. This owners and some as accretion to theisland separates the Gulf of Mexico on islands which are not subject tothe east and the Laguna Madre on the purchase, but they contend that there iswest. Butler at 413. a possibility that there is land which can

lands are in a special category, not

come into existence in the area

neither be shown as accretion to themainland or accretion to the islands inthe lagoon, that is unsubmerged and



20

unsurveyed and therefore subject to 419.[emphasis supplied, not that of thepurchase by them as discoverers. Court]Butler at 414.

The court recognized that these submerged S.W. 2d at 736 the Texas Supreme Court had anlands have always been treated in a special opportunity to opine in a tidelands case. It was acategory since the earliest days of the Republic, suit to establish a vacancy along the Gulf Coastciting State v. Delesdenier, 7 Tex.76 (1851) and that also involved a boundary dispute. Respondentthen ensued on a eloquent recitation of the history Ponder claimed that the proper boundary ofof the treatment of public lands and particularly privately owned land on the shore was thethe areas along the Gulf of Mexico within the common law boundary of along the contour line oftidewater limits and reminding us that these lands 0.4 feet along sea land [mean high tide]. Theare owned by the State and are held by it in trust State of Texas acting through its Landfor the benefits of all its inhabitants. This opinion Commissioner claimed the true boundary lineis a treatise on submerged lands and tidal bound- should be in accordance with Spanish andaries. It is highly recommenced reading for an Mexican law. This point was 1.1 feet alone seaattorney with issues involving submerged lands land [mean higher high tide]. The differenceand tidal boundaries. between the two elevations accounts for the

As a lead in to the ultimate affirming of the trial proper and legal location of seaward boundary ofcourt's judgment, Justice Nye stated: private property. Rudder at 737. Trial was

We take special note at this point in our a vacancy as to land claimed by Respondentdecision, to this declaration of the policy Ponder only. The trial court had ruled that theof our legislative branch of government common law rule as to the location of theconcerning state-owned lands. Article shoreline [0.4 feet] was the correct location. The5421c, Sec. 6 does not specifically Court of Civil Appeals affirmed. Rudder madeauthorize the sale or lease of the application for writ of error. Rudder stated thatlands rising out of or a part of the question before the court concerned the properarms of the bays and seas within the location of the coast boundaries of the Williamtidewater limits of the State of Texas Steele Survey No. 2 in Aransas County. A relatedto a 'discoverer' under the Vacancy question, and the question upon which the TexasAct. Not only is there a lesser amount Supreme Court’s decision was founded, wasof royalty to be realized by the State for whether or not the common law or civil law shouldthe sale of public school lands under the be applied in determining the boundaries. JusticeVacancy Act, than if such lands were Griffin, speaking for the court opined that theleased in accordance with the other pertinent facts had been well stated by the Courtexisting laws, but it has always been the of Civil appeals, and then quoted that court’sdeclared policy of the Legislature and opinion:the courts of this State to hold suchpublic lands in trust for the benefit of all After Texas became a Republic,of the people of this State. Without but before it generally adoptedclear language authorizing the sale or the common law, Henry Smith, aleasing of possible vacant lands in the transferee of the William Steeletidewater limits of this State, we do not Land Warrant No. 840, datedbelieve that the Legislature intended December 8, 1837, caused Johnthat such lands be awarded to anyone Talley, the Deputy Surveyor forunder the act in question. Butler at Refugio County, to survey what

In Rudder v. Ponder, 156 Tex. 125, 293

vacancy. Simply stated, the contest was the

before a jury and judgment rendered establishing


21

is described in the field notes as common law. The State [156'1280 acres of land' which TEX 188] claims that as soon asfronted on the bay. Henry Smith, the certificate was located andalso a transferee of the Van the field notes prepared andBenthuysen Land Warrant No. certified as correct by the1188, dated December 20, 1837, surveyor of Refugio County, thecaused the same surveyor to grantee in the certificatessurvey '640 acres of land' became the holder of a vestedadjoining the other tract. The right of which he could not besurveys were made and the field deprived later by the adoption ofnotes prepared with plats the common law; therefore, theattached, and the surveyor, in civil law applies. The respondentsaccord with the law then in contend that up to the time of theeffect, made his affidavits that issuance of the patent, thethe plat, field notes and the grantee had only an incomplete,survey were made since the first inchoate and equitable right in soday of August, 1838. These far as the Republic wasaffidavits were dated and signed concerned; that the patent havingby the deputy surveyor on issued after the adoption of theSeptember 23, 1839, and on the common law that law shouldsame date were certified as govern.correct by the Refugio CountySurveyor. The trial court found as We hold with the contention ofa fact, based upon presumptions, respondents and thus affirm thethat the field notes on the two judgment of the Court of Civilsurveys were not filed in the Appeals.General Land Office until afterJanuary 20, 1840, when the An excellent historical discussion follows onRepublic generally adopted the the effect of the Republic of Texas adoption of thecommon law. The patents were common law and the effect, if any, of civil law onissued by Mirabeau B. Lamar seaward boundaries. More importantly, the Texasduring April of 1841. Supreme Court addresses the history of litigation

Justice Griffin went on to say: the vacant lands of the Republic to be surveyed

From the above statement of acres and implemented the issuance of patents infacts it will be seen that the land the name of the Republic of Texas and under thecertificates upon which the seal of the Land office. Until a patent is issued,patents were later issued were the owner of a surveyor’s certificate for land ordated in December, 1837. This who had located the certificate on thewas while Texas was a republic unappropriated public domain, as against theand prior to the Act of January Republic had ones as imperfect or inchoate right20, 1840, when the Republic to received the such land, an equitable right validadopted the common law as the against third parties.rule of decision. However, it willbe noticed that the patents werenot issued until April, 1841, this The Act set out definite procedures for thebeing after the adoption of the purchase or lease of land found to be vacant in

requiring the President of the Republic to cause

and sectorized into tracts of 640 acres and 340

C. Procedures under the Act


22

§51.173. Specifically, in order to commence a until the 30 day after publication is completed.proceeding under the Act an individual must file an Under §51.180, an interested party may waiveapplication with the county surveyor or county notice by filing a sworn affidavit with theclerk if there be no county surveyor in the county commissioner.in which all or a part of the land claimed to be Pursuant to §51.181, a surveyor is requiredvacant is located. The application must describe to prepare and file in the land office a detailedthe land; state whether the applicant is a good written report of all aspects of the survey includingfaith claimant, as defined in §51.172; state the record research conducted, survey comersname and last know address of all interested recovered and details of boundary constructionparties; and provide any other information the using recovered comers. Additionally the surveyorcommissioner requires by rule. Priority amongst must file proper field notes describing the land, thecompeting applications is determined by the date lines and the comers surveyed along with a platand hour marked on the application by the county depicting in detail the survey results. The surveyorsurveyor or county clerk. must also note the names and addresses of all

Not later than the 10 day after filing the person in possession of the land or a part of theth

application with the county surveyor or county land along with a description of the landsclerk, a copy of the application must be filed with occupied. The surveyor's report must be filed notthe commissioner and a fee paid. Failure to file later than the 140 day after the date of thewaives all rights under the application. The notice to interested parties or 170 day aftercommissioner may reluse to accept the filing if the notice by publication is completed. Interestedapplication has material omissions, does not parties or occupants of the land at issue may fileadequately describe the land or describe land that exceptions to the surveyor report, thehas finally been adjudicate in a court of this state commissioner may require additionalor of the United States not to be vacant. surveys.§§51.183 and 51.184.

The commissioner must appoint a licensed Not later than the 90 day after the surveyorstate land surveyor or the county surveyor of the report is filed, the commissioner shall either denycounty in which the land is located. The fees and the application or determine whether a vacancyexpense of the survey are negotiated by the exists, but the commissioner must hold a hearing incommissioner, but paid by applicant. Not later than order to determine that a vacancy exist. §51.185.the 10 day after the surveyor is appointed, the If the commissioner denies the application, theth

commissioner shall give notice by certified mail, applicant, after receiving notice, may request areturn receipt requested to all interested parties rehearing and appeal the commissioner's order asletting them know that an application has been provided by Chapter 2001, Government Codemade, a surveyor [to include name, address and (Vernon 2000 and Supplement 2001) and by rulestelephone number] has been appointed to make adopted by the commissioner consistent with thethe survey, that the survey may begin at any time Act, and unless a rehearing is requested, the orderafter the 20 day after the date of the notice. denying the application becomes final on the 30th

Additionally the notice will advise the interested day after the date it is signed.§51.186. A finalparty that he or she is entitled to observe the order of the commissioner under the Act isconduct of the survey, receive a copy of the conclusive with respect to the land described n thesurvey and surveyor's report and participate in the applicatio or the final order except that a decisionvacancy proceeding. A true and legible copy of of the commissioner issued before 1 Septemberthe application is to be provided to each interested 1993 deny a vacancy application or letter ofparty along with other information the inquiry is not conclusive as to the existence or noncommissioner by rule may prescribe. If a notice is existence of vacancies. §51.187. Appeal of a finalreturned unclaimed or undeliverable or the location order is to a district court of the county in whichof an interested party is unknown, notice must be the land is located. The district court shall reviewmade by publication and the survey may not begin

th

th

th

th

th


23

the commissioner's order under the substantial disqualified the first person named to the panel byevidence rule.§51.188 the other party. The decision of the panel is not

The Act also provides the commissioner the subject to judicial review and the cost is sharedauthority to determine the boundaries and size of equally.§51.194.a vacancy that best describes the vacancy and is Under §51.195, the board shall, in all sales,consistent with the information available under the reserve to the permanent school fund all oil, gas,Act. Additionally, if the commissioner in sulphur, and other minerals and geothermaldetermining the boundaries and size of a vacancy resources and shall determine the manner infinds additional person that were not named which those minerals and geothermal resourcesinterested persons and should have been noticed are to be lease. This section also provideswho may be affected by the finding that a guidelines for leasing rights and the award ofvacancy exists, then the proceeding shall be royalty participation.reopened and those persons joined and given anopportunity to be heard. Neither a new applicationor a new survey is required.§5 1.190 Lastly, a comment on vacancies would not be

When a vacancy has been established, the complete without mention of two other cases outschool land board may sell or lease the vacancy. of the Corpus Christi Appeal Court, namelyThe board sets the sale price and other terms and Strong v. Sunray DX Oil Company 448 S.W. 2dconditions just as in other lands dedicated to the at 728 (herein for convenience “Sunray I”) andpermanent school fund. The land office will State v. Sunray Dx Oil Company 503 S.W. 2d atappraise the vacancy to determine the fair market 803 (herein for convenience “Sunray II”) and thevalue and the price set must not be lower that the issue of res judicata..fair market value. Credit against the sale price In Sunray I, the Corpus Christi Court ofmay be given, not to exceed the actual cost of the Appeals struggled with the disposition of an appealsurvey paid by the applicant or good faith claimant by the Plaintiff, Guerry Strong, from the trialif purchaser is a person with a preferential right to court’s directed verdict of no vacancy existing onpurchase, the board has reserved all mineral and defendants land [actually there were multiple oilgeothermal leasing right and the board finds that and gas companies who were defendants]. Inthe fair market value of the mineral estate equals summary, and obviously after much discussionor exceeds 50 percent of the amount of the amongst the members of the Court, the originalcredit.§51.193. dissenting opinion was withdrawn and a new

The issue of fair market value may be opinion sustaining appellees’ motion for rehearingsubmitted to a mutually agreed upon trained and affirming the judgment of the trial court wasmediator if the price set by the board exceeds the substituted therefore as the majority opinion of theappraised value by 15 percent and the appraisal Court.was made not more than six months before the The trial court had entered a directed verdictdate on which the board set the price. If the price of no vacancy existing on defendants’ lands. Theis not settled through mediation on or before the paramount issue before the Court involved the60 day after the first mediation session, the correctness of the directed verdict. Therefore,th

purchaser may, upon written request to the consideration from the viewpoint most favorable tocommissioner, have the issue submitted to binding appellant of all the evidence of probative valuearbitration. This arbitration will be conducted by a was mandated. The Court opined that thepanel of three real estate appraisers certified in “conclusions reached in this opinion are drawnTexas under the rules of the American Arbitration from a careful consideration of all evidence,Association or other rules as agreed. The board admitted or excluded, which was reviewed andand the purchaser shall each select an appraiser, discussed in the various briefs of all the parties.”which appraisers will in turn select the third Sunray I at 731. The lands at issue were twoappraiser. Either party may object to and have tracts of lands described by metes and bounds as

D. Res Judicata and the Vacancy Act




24

the alleged vacant land in appellant’s petition. The The Court noted that “the contract provisions‘A’ Vacancy consisting of the upper of northern of this colony are so well known that they are aarea of 4353.5 acres of land located by appellant matter of judicial knowledge and cited Saylesas between the Traviesa Grant and the Varin Early Laws, Vol. 1, Art. 108; Harris v.Grant. The lower of southern area of 2618.34 O’Connor, 185 S.W. 2d 993 (Tex. Civ. App. – Elacres called the ‘B’ Vacancy located primarily Paso 1944, w.o.m.); Hatch v. Dunn, 11 Tex.within the original Traviesa Grant. An area of 708.” Id at 733. Justice Nye then embarked on460.45 acres designated as the ‘C’ Vacancy another of his scholarly recitations on the historyalleged to be entirely embraced within the ‘A’ of grants in the early days of Mexican rule goingVacancy but consisting of an overlap of the ‘A’ as far back as 1824. He noted the imperfectionsand ‘B’ vacancies. Each was depicted on a Plat. in surveying techniques in those days and the factAppellant also claimed an alternate ‘A’ Vacancy that when father and son owned four leaguesof 1855.3 acres which was included within the [some 18,000 acres rounded] it made littlearea designated as the ‘A’ Vacancy. difference if there was a minor error. The Court

In the words of Justice Nye: everyday farm subdivision when it said:

The vacant land was claimed to exist The entire system of 18 tracts isbetween the boundaries of a series of likened in some respects to thegrants which began at the confluence ordinary everyday farmof the Guadalupe River and the San subdivision of 18 lots in one blockAntonio River (sometimes referred to in all fronting on a river. Therethe old ancient documents as the were basically few natural“Bexar River” or “La Bahia River”), landmarks. The grants (lots)and extending northwesterly along the were described with a number ofGuadalupe River and Coleto Creek by the original settlers’ nameabout eighteen miles toward Goliad. rather than by metes and bounds.The Court noted the importance of a The tracts of land followed ahistorical review of the manner in similar pattern to that of thewhich these grants of land originated porciones along the Rio Grandeand its obligation to attempt to retrace River which were likewisethe steps of the original surveyors and granted by the Mexicandetermine, if possible, the intent of the Government. They weregrantor, as required by the rules for the designed to front on the river soconstruction of grants. Recognizing as to give each owner somethat once the intention of the grantor is valuable water frontage. Thedefinitelyascertained, all else must yield frontage was narrow asciting Phillips Petroleum Company v. compared to its length, as itState, 63 S.W. 2d 737 (Tex. Civ. App. extended back from the river.– Austin 1933 , writ ref’d.) Sunray I The early courses were notat 733. governed by the exactitudes of

The basic documents concerned course was dependent upon theprimarily the old Mexican grants within other with parallel lines. Usuallythe colony extended by the the first lateral line determinedCommissioner Vidaurri. Id at 733 the course for all surveys in the

at one point likened the land as issue as the typical

degrees and minutes but each

system. This is the situation here.Sunray I at 734.




25

Appellees contended that each and every one of enough to tie it together, it did so by the adjoinderthe 18 grants were tied together by adjoinder calls call to be bounded on the southwest by the Donaand by the respective directions away from the Josepha Traviesa tract. It went on to recite otherGuadalupe River and the Coleto Creek as indicators that no vacancy existed blaming someevidenced by the original adjudication of titles. The inconsistencies in distance on the crookedness ofCourt noted that if appellees contention was true, the Guadalupe River.it was decisive of the lawsuit as it determines the Appellant contended that the calls for courseintent of the parties to the colonization of these [along the river] and distance (number of varas)grants and leaves no vacant land in between. The down the river should prevail over these exactCourt agreed with appellees. distance parallel adjoining calls away from the

The Court then explained how the undisputed river and the naming of the adjacent grants asevidence support appellees contention. It adjoining calls. The Court did not accept hisexamined plats of the original survey, the process contention stating:of applications for title, the grants, the fallacies inappellants’ interpretation of the surveys and finally ...the general rule has always been inthe Colonization Law of March 24, 1825, which is this state that calls for adjoinder willquoted in appropriate part at page 745 of the ordinarily prevail over calls for distance.opinion. (See C. M. Frost et al. v. Socony

Of interest is the fact that the Court noted Mobil Oil Company, Inc., et al., 433that some of the applications for grant made S.W.2d 387 (Tex.Sup.1968), for areference to a named neighbor as an adjoining call, discussion of the rules). This is said toa crude but meaningful way to describe be true even where the call for theboundaries in those times. In several pages of adjoinder is an unmarked butvery detailed analysis as to why the evidence did ascertainable line of an adjacentnot support appellant’s contention, the Court survey.” Sunray I at 736.pointed out that “...even if there were a mistake inthe adjoinder calls, appellant himself had failed to The chart below is an example of some evidencedemonstrated what otherwise was the intent of the analyzed by the Court in its study of the history ofparties (grantor-grantees). He simply did not trace grants.the footsteps of the original surveyor.” Sunray Iat 742. The Court in setting out the attempt to All dates in the order below werereconstruct the footsteps of the surveyors and to between September 17, 1834 anddetermine the intent of the original parties to the November 30,1834.grants, noted that one only had to follow the callsof each grant and no other conclusion wasapparent except that the Traviesa Grant was notto be bounded by vacant lands but was to bebounded by some citizen colonist whose name wasnot remembered or unknown at the moment, orwhose name was to be filled in the blank space ata later time. The Court discussed the history ofthe Traviesa Grant from application to the grantingof title a month later and stated that it wasapparent that the citizen’s name was Vairin, notingthat the called distance of the Vairin Grant on thesoutheast to the river was 8790 varas, the absolutenumber of varas called for to the River Guadalupeby Traviesa on her upper boundary. If this wasn't

Order of Order of Order ofName and Order of Reference to Approval of AdjudicationTract Number Application Empresarios Empresarios of Title----------------------------------------------------------------------------------------------18 DALY 14 14 14 17----------------------------------------------------------------------------------------------17 BARTLETT 12 13 13 16----------------------------------------------------------------------------------------------16 TOWNSEND 13 12 12 15----------------------------------------------------------------------------------------------15 RENE 10 10 4 10----------------------------------------------------------------------------------------------14 REYNOLDS 18 18 18 18----------------------------------------------------------------------------------------------13 COBARRUBIAS 17 17 17 9----------------------------------------------------------------------------------------------12 GALLARDO 8 8 9 14----------------------------------------------------------------------------------------------11 HIDALGO 7 7 8 3----------------------------------------------------------------------------------------------10 GALBAN 6 6 2 13---------------------------------------------------------------------------------------------- 9 McDONOUGH 11 11 10 7----------------------------------------------------------------------------------------------


26

8 GONZALES 3 3 7 6----------------------------------------------------------------------------------------------7 RODRIGUEZ 2 2 6 5----------------------------------------------------------------------------------------------6 NIRA 1 1 5 4----------------------------------------------------------------------------------------------5 RAMON 9 9 11 8----------------------------------------------------------------------------------------------4 FERNET 16 16 16 12---------------------------------------------------------------------------------------------- evidence of the grants themselves.3 VAIRIN 15 15 15 11----------------------------------------------------------------------------------------------2 TRAVIESO 5 5 1 2----------------------------------------------------------------------------------------------1 VALDES 4 4 3 1

----------------------------------------------------------------------------------------------

The confluence of San Antonio andGuadalupe Rivers.*The order wasactually the same as its *'d neighbor asboth grants were contained in sameapplication and title.”

A close study of the applications for titleshows that some of the grantees made applicationfor their tract of land and made reference to anamed neighbor as an adjoining call, even beforethat neighbor had made his application or receivedtitle. Sunray at 743

Summarizing by quote in appropriate part,according to the Court:

Appellant's proposed vacancy fails foranother reason. It is located by theappellant within the external lines of asystem of contemporary surveys, and istherefore in conflict on the ground withlands previously titled. It is not subjectto appropriation under Article 5421c,Vernon's Ann. Civ. St. Under theundisputed evidence, the Traviesa andVairin Grants are within this system of18 surveys. Until the entire system issurveyed, no interior line can belocated. There can be no vacancy inconstruing interior lines in a system ofsurveys... [citations omitted]. Sunray Iat 743....

A study of the various applicationsconvinces us that the citizens of thecolony were placed in juridicalpossession of the various grants... Ifthere are doubts as to the extent of the

boundaries of these Mexican grantsthey are resolved by the act of juridicalpossession. State v. Balli, 144 Tex. 195,190 S.W.2d 71 (Tex.Sup.1944).Juridical possession is shown by the

Sunray I at 746

Here the lands in question were titledand the grants have not been cancelledor annulled. The long, continuedundisturbed and uncontested occupancyof one hundred thirty five yearsbeginning with juridical possession andthe adjoinder calls on either side,precludes the existence of any vacancyas defined by Article 5421c, V.A.C.S.Sunray I at 747.

In boundary, excess or vacancy suitsinvolving old grants and old surveys,where no living witness can testify as tooriginal conditions and facts, the courtswherever there is specific, definiteevidence of facts existing as of the dateof the grant or survey, as opposed togeneral, indefinite or descriptiveevidence, decide such cases usually asa matter of law rather than fact.' (citingauthorities) Id at 748...For a tract ofland to be vacant it must be unsurveyedpublic land and it must not be in conflicton the ground with lands previouslytitled, awarded or sold. AtlanticRefining Co. v. W. D. Noel, 443 S.W.2d 35 (Tex.1968). Id at 748

Chief Justice Green concurred in the result,but Justice Sharpe wrote a steaming dissent. Hestated:

I respectfully dissent. In my view, theCourt correctly reversed the judgmentof the trial court and remanded thecause for new trial on the originaldisposition of the case. I would overruleappellees' motion for rehearing. Theoriginal majority opinion of this Court





27

was authored by this writer and I now judicata as to title; 2) the Attorneyfile it as a dissenting opinion. There are General has no statutory orno changes in substance but minor constitutional grounds to claim this land,changes in wording have been made in and in any event the State is bound byorder to conform the prior majority the decision of the land commissioner ofopinion to its present posture of a the General Land Office; and 3) thedissenting opinion. In my view, the State has lost its right to assert apresent majority or concurring opinions forfeiture by its long delay and bydo not fully state or discuss the placing an unreasonable burden on thecontentions of the parties, particularly defendants which would deprive themthose of appellant. Nor do such opinions of property without due process of lawadequately refer to or discuss the in violation of the State and Federalevidence admitted or excluded over Constitutions. Sunray II at 833.objection. Many of the authorities reliedon by appellant, which I believe strongly The State contended that since August L.support his position and that of the State Fernet and Joseph Vairin, the grantees of the twoof Texas, are not mentioned in the other subject tracts, were never residents or citizens ofopinions. the Republic of Mexico; the Commissioner of the

Then along came Sunray II. In this case theCorpus Christi Court of Appeals considered a suitin the nature of a trespass to try title actionbrought by the State of Texas to recover lands forthe benefit of the public free school fund. Twotracts of land were at issue, known as the Vairintract and the Fernet tract located near theconfluence of the Guadalupe and San AntonioRivers in Victoria County, Texas. These should befamiliar names to the reader. Remember SunrayI? These two tracts had been granted byCommissioner Vidauri as part of the Hewitson andPower Colony pursuant to the colonization of thisparticular area by Mexico in 1834. Defendantshad filed answers of not guilty, general denial, resjudicata, lack of jurisdiction, and various otherpleadings and exceptions.

Defendants filed their motion for summaryjudgment, which was granted State of Texasappealed.

Defendants had set out several theories as abasis for the granting of the summary judgment inthe trial court. Defendants theories weresummarized under three basic categories:

1) the prior decision of this Court inStrong v. Sunray DX Oil Co., 448S.W.2d 728 (Tex. Civ. Ap.--CorpusChristi 1969, writ ref'd n.r.e.) is res

Power and Hewitson Colony had no legalauthority or power to issue title to the two leaguesof land to them; and therefore, the purportedgrants to them were void ab initio and/or werevoidable. The Court held this contention waswithout merit, stating that the original validity ofthe grants could not be impeached as they wereissued by competent authority. The Court went onto say:

...the Supreme Court of Texas wasfaced with this same contention in anearly case. The court [Supreme Court]said:

That the grantee possessed all therequisite legal qualifications to entitlehim to the grant, and that the grant itselfconcludes all after inquiry upon thesubject, has been repeatedly decided.This precise question was decided inthe case of Johnson v. Smith, 21 Tex .722, where it was held, that Evidencecannot be admitted to prove that thegrantee had not brought his family tothe country, and had not, in fact,become domiciled here for the purposeof showing that he was not entitled tothe grant . . .; that the original validity ofa grant, regularly issued by competent




28

authority, cannot be thus impeached. the San Antonio and Guadalupe.Bowmer v. Hicks, 22 Tex. 155, 161 Sunray II at 824.(1858). Sunray II at 824.

Varin and Fernet, at issue here, were reasoning set forth in Sunray I, stating inplaced in juridical possession of their appropriate part:respective tracts.

As the court concluded: himself and the State of Texas all the

The Fernet and Vairin tracts which the thereunder . He alleged that the landState seeks to recover are the same was vacant and unsurveyed and subjectgrants that were involved in the Strong to lease and sale by virtue of Articlev. Sunray DX Oil Company suit, 5421c, Vernon's Ann. Civ. St. Hesupra. The State seeks to avoid the contended that he brought the suit 'forbinding effect of the final judgment in the purpose of litigating and decidingStrong by showing that title to these boundary, Title, and ownership of thegrants was not placed in issue, and was land'. The prayer to his petition asksnot a part of the prior lawsuit because that the trial court adjudicate andan order for separate trial was entered decree that all the land (including theby the trial court. The defendants take Fernet and Vairin grants) was vacant,the position that even if title to the unsurveyed school land belonging to theFernet and Vairin grants was not in school fund and that he be awarded Allissue in the Strong case, the State was of the right, title, and interest to saidrequired to assert and have adjudicated land as he may be entitled. The State ofall of its existing claims to such grants. Texas intervened in the Strong case andHaving let the case go to final judgment asked that the facts be decided, and ifwithout doing so, it is barred. We agree. they showed vacancies existing, theThe Supreme Court said in Ogletree v. public free school fund was entitled toCrates, 363 S.W.2d 431, 435 recover them. Sunray II at 825.(Tex.Sup.1963), “The rule of resjudicata in Texas bars litigation of all Important to note is the Court’s comment:issues connected with a cause of actionor defense which, with the use of The pleading of the vacancy claimant,diligence, might have been tried in a as well as that of the State of Texas,former trial, as well as those which placed the questions of title, boundary,were actually tried.” ownership, and vacancy in issue. The

The particular land involved is shown by claim the lands for the State of Texasa map attached to Strong's original and the public free school fund. Thepetition. It was reproduced in the individual claimant who sought to proveopinion in the Strong case on pages 752 the vacancy was given statutory priorityand 753 (448 S.W.2d 728). This Court to purchase the lands back from theheld, among other things, that there was State, if successful. As a result, theno vacancy in the are of the Fernet and state must intervene in such suits underVairin tracts because a system of Art. 5421c. It is in the nature of asurveys beginning at the confluence of compulsory counterclaim under Rule

The Court then embarked on the same

In his vacancy suit Strong claimed for

right to the oil, gas and minerals

purpose of the vacancy suit was to

97(a), T.R.C.P. Article 5421c, Sec. 6(j)




29

reads in part: “When such litigation shallhave been prosecuted to a final “Any person, firm, or corporationjudgment, said judgment shall be binding aggrieved by any action taken by theupon the State of Texas. It shall be Commissioner under the provisions ofmandatory for the Attorney General to this Act, or with reference to anyintervene in behalf of the State in such application to purchase or leasecases.” Sunray II at 825. vacancies, May institute suit in the

The Court then embarked on the distinction issues of boundary, title, and ownershipbetween separate trial and a severance: of any alleged vacancy involved, as well

The defendants filed a motion for a . .”separate trial under Rule 174(b),T.R.C.P., contending that there should The State of Texas contends that itsbe a separate trial of the issues relating intervention was passive only.to whether or not there are vacant landsas alleged in Strong's petition, including We hold this contention is totallythe issue of boundaries with respect without merit. The statute as previouslythereto, from a trial of the issues quoted makes the interventionrelating to whether or not some of the mandatory and any decision by thedefendant are good faith claimants, courts are binding against the State.whether or not improvements have The purpose of having the attorneybeen made in good faith, and the issues general intervene is to protect therelating to the ownership of the State's interest and not to 'observe' theproduction of oil and gas. The Court vacancy claimant. [citation omitted]granted the motion and ordered that the Sunray II at 827.issues of the existence or non-existenceof vacancies be separately tried and The order was entered under Ruledetermined, before the court tried any 174(b). This order did not amount to aother issues in the cause. Boundary severance as the State seems to arguewas considered determinative of . There has always been somewhether the vacancies existed or not. confusion between separate trials andThe trial court ordered the other issues severance. The Supreme Courtdeferred. Trial on the boundary issue recognized this and tried to correct theproceeded and judgment was rendered confusion in Kansas Universitythat Strong and the State of Texas take Endowment Assoc. v. King, 162 Tex.nothing since no vacancy existed. 599, 350 S.W.2d 11, 19 (1961)....

In response to the defendants’ major There was only one final judgment,contention of res judicata, the Court stated: which disposed of all issues and parties.

Although the original vacancy suit in In conclusion, the Court opined as follows:Strong [Sunray I] was not broughtunder the 'classic' pleadings known as It is our opinion that article 7391 of thetrespass to try title, the statute (Art. Revised Civil Statutes of Texas is5421c Sec. 6(j)) expressly considers the controlling of the situation hereinissue of title within the scope of the involved. Such statute reads as follows:vacancy suit. The statute reads: “Any final judgment rendered in any

District Court . . . and there try the

as the issues of the preference rights. .



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action for the recovery of real estate The Court further stated:shall be conclusive as to the title or rightof possession established in such action We hold that title was in issue inupon the party against whom it is “Strong,” the vacancy suit....To allowrecovered, and upon all persons boundary, title original ownership andclaiming from, through or under such vacancy to be tried in separate lawsuitsparty, by title arising after the would place an unfair burden upon thecommencement of such action.” defendants. McKamey v. Aiken, 118

This statute merely enacts into law the Antonio 1938, writ dism'd). Articleequitable rule that there should be an 5421c, V.A.C.S. does not contemplateend to all litigation. Sunray II at that the State of Texas can simply hang828...The State cannot argue that title on to the coat tails of the vacancywas not a “vital issue.”...To hold claimant. It requires the State tootherwise would mean that a boundary prosecute its case actively on its own,determination between surveys would on pain of final judgment being enteredbe unimportant and have not effect. against it. McKenzie v. Frost, 448Sunray II at 828 S.W.2d 520 (Tex. Civ. Ap.--El Paso

1969, writ ref'd n.r.e). See Rule 97,

S.W.2d 482 (Tex. Civ. Ap.--San

T.R.C.P. Sunray II at 829




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APPENDIX ASample Forms

The following are selected example forms from 6. For a determination by this court that the trueChapter 49, Texas Jurisprudence Pleading and location of the boundary line betweenPractice Forms which may be of interest to the plaintiff’s and defendant’s respectivepractitioner in a boundary case. It is not all properties is as described in this petition;inclusive, but merely a starting point.

§49:13. Petition – Trespass to try title –Boundary dispute [TEX. R. CIV.P 783 etseq.]

[Caption] [Signature, State Bar of Texas identificationI. number, address, telephone number, and telecopier

Plaintiff is the [sole number, if any, of at least one attorney of record,owner in fee or as the case may be] and is entitled verification, endorsement, see Pleading]to possession of a tract of land situated in the Cityof , County of ,Texas, described as follows:. II.

Defendant is, and during all times mentionedin this petition was, the [sole owner [Caption]in fee] of the tract of land [south] ofand adjacent to that of plaintiff and more Defendant admits that _he owns realparticularly described as follows: property adjoining plaintiff’s as alleged in the complaint, but states that _he has had h property

III. surveyed by [name andA dispute exists between plaintiff and address of surveyor] and that the survey revealed

defendant concerning the true location of the that the boundary line purportedly separatingboundary line between the above-described plaintiffs property from defendant’s prior to thepremises, and there is confusion and uncertainty in survey was erroneous; that, in fact, the boundarythat regard. line should be located feet

IV. [north or as the case may be] of the line claimedPlaintiff believes the correct boundary line by plaintiff.

dividing the properties to be as follows: [described line unambiguously by meansof objects on the ground, and if necessary, bymetes and bounds].

V. [Caption]Nevertheless, a boundary strip to the

[north] of that line and running On [date], came on[describes perimeter of strip] is out of plaintiff’s to be heard [plaintiff’spossession and in the possession of defendant. or defendant’s] motion, filed in the above-entitledSince [date], defendant has unlawfully kept action on [date], for theplaintiff out of the possession of this strip. appointment of a surveyor in accordance with

Wherefore, plaintiff prays: Both parties having appeared by their

5. For judgment against defendant for thedelivery of the strip of land;

7. For costs and disbursements of this suit; and

8. For other and further relief as this court maydeem proper.

§49.14.Answer – Defense – Defendant’ssurvey showing plaintiff’s boundary lineerroneous.

§49.15.Order – Appointing surveyor [TEX.R.CIV. P 796].

Rule 796 of the Rules of Civil Procedure; and


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attorneys, the court having heard testimony andexamined the record, the court having heardargument of counsel, and it appearing to the courtthat the motion should be granted,

It is ordered that [Caption] [name and address of surveyor] be, and hereby is appointed to make an immediate survey and On [date],submit to the court, under oath, h findings as to came on to be heard the above-styled cause, andthe true boundary line separating the properties. came the parties, personally and by their attorneys,

It is further ordered that _he submit a and announced ready for trial.statement of h time spent in complying with this Neither party having demanded a jury, andorder, and that compensation for h services be the court having examined the pleadings, heard thetaxed as part of the costs of the suit at the rate of evidence, noted the arguments of counsel, and$ per day. studied the report of the surveyor appointed by the

Dated . court to survey and determine the boundary in[Signature and title of judge] dispute.

§49.16.General instruction – Conflict in calls– Priority.

You are instructed that when general and It is further ordered, adjudged, and decreedlocative calls in a survey are conflicting and that plaintiff recovery from defendant theevidence as to the intention of the survey is possession of all that land on plaintiff’s side of thelacking, you will give controlling effect to natural true boundary.objects (including lines marked by the surveyor), All costs of this action shall be taxed againstcourses, distances, and acreage, in that order of defendant.priority. Signed and entered

§49.17.Judgment – Establishing boundarypursuant to survey – Recovery of possessionby plaintiff.

It is hereby ordered, adjudged, and decreedthat the true boundary between plaintiff’s anddefendant’s lands be located as follows: .

[date].[Signature and title of judge]

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