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jury, and in giving a peremptory instruction for plaintiff, because it is claimed therein that there were issues of fact made by the evidence under the defenses pleaded by appellants, which were proper to be passed upon by the jury.

made with the payee and former holder of | prepare and deliver a written charge to the the notes, John F. Rowe; nor are there any facts or circumstances in the record tending to make that an issue of fact for the jury. As to the alleged tender, it does appear that appellant Thomas tendered the amount due on the first note, with interest, to John F. Rowe, on November 8, 1916, but at that In view of the disposition we have made time Rowe was no longer interested in the of the first assignment of error, we believe notes; they were the property of appellee there is no merit in any of the last four asDerrick and had been placed with his attor-signments. They are controlled by the same ney, W. L. Eason, for collection, which fact rule, and, having concluded that there was was known to said appellant.

[3, 4] From the foregoing facts, we conclude that there was no evidence on the trial sufficient to raise an issue of fact to go to the jury, upon either the issue of an agreement to extend the notes or the tender of payment to appellee. Those being the only issues really raised by the pleadings, we are of the opinion that the court properly instructed the jury to find for the plaintiff. The first assignment of error is, therefore, overruled.

no evidence sustaining or raising an issue of fact under any of the defenses pleaded by appellants, the conclusion is compelled that the trial court properly instructed a verdict for plaintiff, and therefore the fourth, fifth, sixth, and seventh assignments of error are also overruled.

Finding no reversible error in the record, the judgment is affirmed. Affirmed.

(Court of Civil Appeals of Texas. Galveston.
Oct. 23, 1918. Rehearing Denied
Dec. 19, 1918.)

1. ADVERSE POSSESSION 115(5)-RELATION OF LANDLORD AND TENANT QUESTION FOR JURY.

In trespass to try title, where defendant claimed title by adverse possession, whether defendant was a tenant of plaintiff held for the jury.

[5] The second assignment of error complains of the action of the trial court in fail- DOLEN et al. v. LOBIT et al. (No. 7617.) ing and refusing to give to the jury appellants' special charge No. 1, which attempted to present the alleged defenses of an extension agreement and tender of payment. Appellants' bill of exception complaining of the court's action in refusing such charge has been stricken out by this court, and the assignment is not supported by any proper bill of exception. The transcript, however, does show that this charge was presented to the court and refused; and the defendant excepted as shown by the indorsement of the judge on the special charge. We do not think the notation and authentication of the judge sufficient to constitute an exception to his action under the statute, and the assignment should not be considered. However, we are of the opinion that the evidence did not raise the issue sought to be submitted in the said special charge requested and refused, for the reasons indicated above in disposing of the first assignment of error; and if the assignment should be considered, we think it without merit, and it is therefore overruled.

Appellants' third assignment of error complains of the trial court's action in failing and refusing to submit to the jury special charge No. 2, requested by appellants. This assignment is in the same situation as the second assignment of error with reference to the bill of exception, and also as to the absence of any evidence whatever to raise the issues sought to be submitted in said special charge. Therefore this assignment is also

overruled.

The fourth, fifth, sixth, and seventh assignments of error all complain of the action of the trial court in failing and refusing to

2. LANDLORD AND TENANT 7-BASIS OF RELATION-NATURE OF CONTRACT.

The relation of landlord and tenant rests at last upon a contract, and, while it need not be express, there must exist such facts as to the acts, conduct, and intention of the parties as will properly give rise to one by implication.

3. LANDLORD AND TENANT 66(3)—ADVERSE POSSESSION BY TENANT.

Assuming that defendant, an employé of a partnership using land of plaintiff with his consent without payment of rent, was a tenant of the plaintiff, such relation was ended by dissolution of the partnership and abandonment of the land, although the employé was given fences remaining after a prairie fire, where the land was open to the public and unfenced for two years before defendant re-entered and fenced it.

Pleasants, C. J., dissenting in part.

Appeal from District Court, Harris County; Henry J. Dannenbaum, Judge.

Trespass to try title by L. Lobit and others against I. S. Dolen and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

Campbell, Myer, Myer & Freeman, of Houston, for appellants.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

144

207 SOUTHWESTERN REPORTER

no rent being Maco & Minor Stewart and R. W. Houk, | from M. Levy and J. Lobit, predecessors of all of Houston, and Albert J. De Lange, of appellees in title thereto; Galveston, for appellees.

GRAVES, J. Appellees sued appellants in the court below in trespass to try title to recover 597.85 acres of land in the J. W. Harris county, Tex. Moody survey in Among other pleas, the latter set up their claim to the land under the statute of ten years' limitation.

paid them for the privilege.

Hutcheson & Baker sold all their partnership cattle in 1894, delivered them in the spring of 1895, and immediately dissolved A few cow ponies their partnership; both members going out of the cattle business. may have been left over; but, after thus selltransaction, which was to fatten some beeves, ing their stock, the firm had but a single At the close of the evidence, upon motion closing that out in March, 1896. The firm of appellees, the court peremptorily instruct-did not use the Pony pasture, in whien ed a verdict in their favor, upon which judg- was included the land in controversy, aftment was duly entered, and appellants pre-er the delivery of their stock in the spring sent this appeal.

A number of assignments of error are urged, differing in form and manner of state ment, but all directed against the court's action in giving the peremptory instruction. The main contention is that the question of whether or not appellants' possession and occupancy of the land was as tenants of appellees, or of those who held under appellees was one of fact for the jury to determine under all of the evidence, and should not have been taken from them by the court. This contention, we think is easily correct, without giving to the evidence what seems to us to be its full force. As we read the statement of facts, it was well-nigh if not indeed conclusively established that no such tenancy existed, and that the independent and adverse possession of the land by the Dolens began early in 1898 and continued uninterruptedly down until the time of the trial; but this court is not asked to render judgment in favor of appellants, their sole complaint being that the court below erred in taking the case from the jury. Accordingly, we merely sustain so much of the various assignments as presents that error, and reverse and remand the cause for another trial. The issue of tenancy referred to arose out of the following transactions between and among the various persons interested: In 1889 or 1890, J. C. Hutcheson and I. B. Baker began the conduct of a partnership cattle business near Cypress in Harris county, keeping their cattle and horses in pastures known, respectively, as the H. R. pasture, the Big pasture, the Kelley Hill pasture, and the Pony pasture; the last named being used exclusively for cow ponies. From 1891 or 1892 to about June, 1895, appellant I. S. Dolen worked for the firm of Hutcheson & Baker as their ranch foreman, looking after and caring for their stock in these different pastures; they furnishing him while engaged in their services the Rock Roberts house to live in. In 1890, the 597.85 acres in controversy, together with other lands, was inclosed by Hutcheson & Baker in what was thus known as the Pony pasture, under consent to them that it might be so inclosed

of 1895, and soon thereafter a prairie fire
almost completely destroyed its east string
of fence and seriously damaged the west
string. I. S. Dolen ceased working for the
firm of Hutcheson & Baker in June, 1895,
and Baker died in June, 1896, just before
his death giving Dolen his interest in such
wire and posts as this fire had left in the
east string of the Pony pasture fence. J. C.
Hutcheson, the other member of the firm,
subsequently gave Dolen his interest also
in the remnants of wire and posts left in
this fence after the fire. Neither Hutcheson
nor Baker knew what use Dolen intended
to make of these remnants of posts and wire,
neither gave him consent to take or use any
part of the Moody land, neither knew that
he had any intention of fencing or using
any of it, and, according to the testimony
of Dolen, it lay out on the commons, unfenc-
ed, and used by the public generally for
over two years subsequent to the fire follow-
ing their discontinuance of its use; but early
in 1898 I. S. Dolen, having in the meantime
bought 872 acres in the Roberts survey to
row surveys to the east and south of the
the south, and 175 acres in the Gary and Bar-
Pony pasture as constructed and maintain-
ed by Hutcheson & Baker, built a substan-
tial three-strand barbed wire fence so as to
inclose within it the 597.85 acres in con-
troversy and the 87% and 175 acre tracts
he used such posts and wire of the old
thus purchased by him. While in doing this
Hutcheson & Baker fence around their Pony
pasture as were fit for the purpose and sub-
stantially followed its lines along the north
and part of the east sides, he extended its
south and east strings in order to include
the three additional tracts he had purchased,
and drew in its west string to the line be-
tween the Merritt and the Moody surveys,
thus comprising within what was thereafter
generally known in that community as "Do-
len's pasture," in all 860.35 acres, as against
597.85 acres of the Moody only as used by
Hutcheson & Baker.

Dolen testified, and in all essential features he was corroborated by other witnesses, that from and after the fixing up of this

The judgment is reversed, and the cause remanded.

Reversed and remanded.

PLEASANTS, C. J., dissenting in part. See 207 S. W. 964.

SUMMIT PLACE CO. v. TERRELL. (No. 5978.)

(Court of Civil Appeals of Texas. San Antonio. July 1, 1918. On Motion for Rehearing, Nov. 6, 1918.)

1. APPEAL AND ERROR 524-MAP NOT ATTACHED TO FINDING-CONSIDERATION.

new fence by himself, though never having | owners of the land ended with the former's known who owned it, he intended to and did abandonment of its use. claim the Moody 597.85 acres openly and notoriously against the world; that he continuously kept, used, and occupied it for the operation of his dairy business until the date of this trial, at all times maintaining his fences and gates up and closed, and keeping his stock within and other people's stock out of it, having actually lived on the adjoining Gary 160 acres since 1900; that Hutcheson & Baker not only had nothing whatever to do with his so taking possession of and occupying the Moody land, by any agreement with him, or otherwise, but neither of them knew of it. [1] There are distributed through the statement of facts some circumstances, which, taken and considered apart from their relation to the body of the testimony as a whole, may to some extent tend to impeach the accuracy and the continuity of the above recitation of conditions attending and surrounding Dolen's possession and use of the land in suit, and upon these the appellees lay much stress in their brief; but we think by no indulgence toward them, nor favorable allowance for them, do they conclusively establish that Dolen's possession of the land was a lawful one, begun under Hutcheson & Baker and continued without substantial change by himself, and was not adverse, as is contended in support of the trial court's judgment. Upon the contrary, as suggested at the outset, were that contention here made, this court would be inclined to hold that the record discloses the exact reverse; to say the least of it, the issue was one of fact for the jury.

[2] The relation of landlord and tenant rests at last upon a contract, and, while it need not be express, there must exist such facts as to the acts, conduct, and intention of the parties as will properly give rise to one by implication. Ruling Case Law, vol. 16, p. 541; 1 Woods on Landlord and Tenant, 1; 24 Cyc. pp. 876, 877, and 882.

Although record fails to show that map is a complete map among papers which were was attached to findings of fact, where there attached to statement of facts, and both parties rely on such map, it will be considered by court on appeal, there being no dispute concerning fact that it is a part of statement of

facts.

2. EXCHANGE OF PROPERTY 3(1)
REPRESENTATIONS—EVIDENCE.

FALSE

Where plaintiff received title to a lot 114 feet wide, representation of defendant with whom he exchanged property, that lot had 114 feet front, would be literally true, although the 114 feet included 16 feet taken up by sidewalk and private parking, and judgment for plaintiff cannot be sustained on the ground that fraud was perpetrated by means of such representation.

3. EXCHANGE OF PROPERTY
CONSTRUCTION.

4-CONTRACT

Where plaintiff exchanged property with defendant for lot represented by defendant to be 114 feet wide, but which plaintiff alleged was only 98 feet wide, held that deed, when construed as a whole, vested in plaintiff the fee to sidewalk space and title to private parking, so that lot was 114 feet wide as represented. 4. DEDICATION 48-SALE OF LOT-RIGHTS OF GRANTEE.

Previous dedication of sidewalk, by map duly recorded, and by reference made a part of deed, precludes grantee from using sidewalk space for building purposes. 5. DEEDS

CLAUSES.

111-INSTRUCTION-CONFLICTING

[3] If the testimony we have summarized from the evidence could be said to raise an issue of tenancy of Dolen under Hutcheson & Baker at all-since he was merely their hired ranch foreman, looking after the cow ponies they kept upon a tract of land he, during their tenure, neither lived upon, knew If deed contains conflicting clauses, which who were the owners of, nor in any manner cannot be reconciled, the clause will be retainexercised any dominion over other than keep-ed which gives the greatest estate, and the clause in conflict therewith rejected. ing up the fences-such relation could not have survived the dissolution of their part-6. DEEDS nership, their consequent abandonment of IN FAVOR OF GRANTEE. the use of the land in 1895, and its having lain out on the commons, unfenced, and used by the public generally from that date until Dolen refenced it early in 1898, because any relationship of tenancy which may have existed between Hutcheson & Baker and the

90-AMBIGUITY-CONSTRUCTION

Any ambiguity must be resolved in favor of the grantee.

7. BOUNDARIES 20(1)-STREETS-ABUTTING OWNERS.

The owner of a lot abutting on a street acquires the fee to the middle of the street.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 207 S.W.-10

[blocks in formation]

MOURSUND, J. [1] While the court recited in his findings of fact that a copy of a portion of the map of Summit Place addition, and of the instrument dedicating streets in said addition, is attached to the findings of fact, the record fails to show that this was done; but there is a complete map of said addition among the papers which had been attached to the statement of facts and be came detached in some way. This map is relied upon in the briefs of both parties, and, there being no dispute concerning the fact that it is a part of the statement of facts, we conclude that we erred in refusing to consider it when we originally decided this case (203 S. W. i110).

[2] The only representation pleaded and relied upon is that plaintiff in error represented lot 6, block 7, in Summit Place addition, as containing 114 feet front on Queensborough Court. Plaintiff in error contends that the lot in question does in fact contain 114 feet, and therefore the representation made by Roos was in fact true. In his brief defendant in error says:

"Just how it can be contended that defendant in error got 114 feet is something more than we can conjecture; but, if he did, this case should be reversed and rendered."

The question, therefore, is, did defendant in error by his deed obtain title to a lot containing 114 feet? The deed describes the lot as lot No. 6, block 7, as shown by the

map of Summit Place. There is no statement as to the size of the lot. The map shows that the lot lies west of Howard street, and fronts on Queensborough Court. The black line between lots 5 and 6 is marked "154.17," and the line at the rear of the lot is marked "114.0." These are the only figures appearing with reference to such lot. There is a green shaded line along the front and the side on Howard street, and at the corner red lines cross each other just inside the green shading, and run out to the street. The map has indorsed on it a duly acknowledged dedication of streets and alleys in Summit Place, executed by the Summit Place Company, through its president, J. O. Terrell, and attested by defendant in error, who at that time was secretary of the company. That instrument contains the following statement:

"The red lines on map indicate public sidewalks 4 feet wide, and the green shadings indicate private parking between the public side

walk and the curbing along the streets."

The right was reserved therein by the company for three years to construct such sidewalks and curbings as it might desire. The deed contains the following provision:

"That such residence shall be as much as two stories in height, and cost and be fairly worth not less than ten thousand dollars ($8,000.00), and no part thereof, except the steps descending from the gallery or building, shall be located nearer than fifty (50) feet from the curb line on the front of said premises, nor nearer than ten (10) feet from the side lines of said premises, and shall face the front line of said premises, to wit, on Queensborough Court; that no outbuildings or private stables, or any part thereof, shall be erected, placed, or permitted on (50) feet from the rear line of said premises, and said premises at a distance of more than fifty not less than forty feet from any side street; that no fences or copings whatsoever more than three (3) feet in height shall be erected, placed, or permitted upon said premises at a distance nearer than seventy-five (75) feet from the front line of said premises, and not nearer than forty feet from any side street, and no fence or coping shall be erected on any lot outside of the proposed sidewalks as shown by the recorded plat of said addition, and provided, further, that the four-foot strip designated on the map of said addition as a sidewalk is dedicated to the public for such purposes, and the Summit Place Company reserves the right to build a sidewalk along said strip as provided in said

map."

Defendant in error admitted that, if the sidewalk and private parking be included as a part of the lot, it contains 114 feet. It is contended that the map shows that measurements were to be made from the sidewalk. This contention is based on the fact that the lot across Queensborough Court from lot 6 has its back line marked "114," and the green space marked in small figures "12,"

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

lot 6 would be bounded by the sidewalk. We do not believe this provision could be given the effect of limiting lot 6 to 98 feet, and thus reserving to the grantor the fee in the space for sidewalk and private parking. There is nothing in the deed showing a separate conveyance of such parcels. They are either conveyed as part of lot 6 or not at all. The lot conveyed is referred to in all of the building restrictions as the "premises," and the "curb line on the front of said premises" is mentioned, and it is provided that no fence or coping shall be erected on any lot outside of the proposed sidewalks, as shown by the recorded plat of said addition. These recitals indicate clearly that the premises conveyed, namely, lot 6, block 7, extends to the curb. It is true that if the "side lines" of said premises, as used by the drawer of the deed, be assumed to be the curb lines, a building could be placed so as to extend two feet over the sidewalk. An intention to permit that to be done would be in direct conflict with the intent expressed to reserve for the benefit of the public as a sidewalk the space designated for that purpose, and, as the grantor would naturally not undertake to grant any rights of which it had previously divested itself, it is reasonable that the real intent was to require the building to be erected not less than 10 feet from the sidewalk line, as to corner lots.

such mark being near the front of the lot. I therefore it is contended that by side line From this is deduced the theory that the 114 was meant the line of the sidewalk, and that does not include the 12; but upon what can such theory rest? The "114" is written much larger than the "12," and it is just as plausible that it relates to the entire line upon which it is placed as that it was only intended to mark part of it, and that the "12" was placed for the purpose of showing how much of the 114 was taken up by private parking. The width of the sidewalk is not delineated on the map, nor is the space reserved therefor marked at the rear end of the lot; and therefore the figures 114, even according to defendant in error's theory, would include the sidewalk, for the line is unbroken until it intersects the green shading. If the figures along the lines exclude the green shading, then the figures indicating the depth of the various lots also are arrived at by measuring only to the private parking. Attention is also called to the fact that the figures "114.0" appear inside of the lot; but as every figure relating to the lots appears inside of them, and none on the outside, no theory can be deduced that such figures were intended to only mark the distance to sidewalks or private parking. When the map, which is fairly accurately drawn, is considered carefully, and distances represented by the lines of the various lots are compared, it is found that lot 6 and the lot opposite it, which has the same front, must run to the curb in order to get the distance of 114 feet. This is easily ascertainable by comparing the front lines of the 100 feet inside lots and lot 3, block 1, which has a front of 98 feet, with the lines on said lot 6 and the lot opposite it, measuring such lines west from the red sidewalk line instead of the curb. Of course, if lot 6 extends only to the sidewalk, the other corner lots also extend to the sidewalk. If defendant in error's theory that measurements are to be made from the sidewalk be taken as correct, we are confronted with the fact that corner lots, whose rear lines are marked 100 feet, are mapped on a different scale from the inside lots, whose rear line is also marked 100 feet, and, furthermore, that said lot 6, conveyed to defendant in error by plaintiff in error, is mapped on a different scale from the other lots in the same block. While there are a few inaccuracies in the map, when it is taken as a whole a comparison of lines shows that the corner lot distances must be taken from the curb in order to credit the drawer of the map with using the same scale in mapping the entire addition.

[3] Defendant in error seeks to deduce from one of the restrictions in the deed an intent to make the sidewalk the boundary of lot No. 6. The provision is to the effect that no building shall be placed nearer than 10 feet from the side lines. If the side line of No. 6 was the curb line, the building could be placed on ground designated for sidewalk;

[4] The previous dedication, duly recorded, of the sidewalk space made part of the map, and therefore, by reference, a part of the deed, precludes the grantee from using the sidewalk space for building purposes.

[5] If the deed be viewed as having conflicting clauses, which cannot be reconciled, the clause will be retained which gives the greatest estate, and the clause in conflict therewith will be rejected. The deed, as a whole, would be construed to vest in the grantee the fee to the sidewalk space and the title to the private parking, with the restriction that he is not permitted to place any fences thereon.

[6] Any ambiguity must be resolved in favor of the grantee, and, when the deed is considered as a whole, it is apparent that the lot conveyed includes the sidewalk space and the private parking space. If this was a suit involving title to said strips of land, the grantor could not maintain a contention that the same were not parts of the lot conveyed by it. The deed shows by several recitals that such strips are part of the premises conveyed, and it cannot be contended that such rights as the grantee has therein passed to him by reason of his purchase of property abutting thereon.

[7] The owner of a lot abutting on a street acquires the fee to the middle of the street; but it is hardly probable that the owner of a lot, if specifically limited to the sidewalk

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