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denying a motion to dissolve a temporary in- | 15 days from the granting of such order. junction previously granted.

The order granting the injunction was made

on September 18, 1918, and was still in Appeal from District Court, Hill County; force on October 30th, when appellant's moHorton B. Porter, Judge.

tion to dissolve was acted upon and overruled Suit by A. B. Lamb and others against Bill by the court, and the court recited in its Jowell. From a judgment overruling a mo- judgment that the injunction would "continue tion to dissolve a temporary injunction in force pending trial,” which did not have granted in vacation, defendant appeals. Ap- the effect of beginning a new and original peal dismissed.

injunction from which an appeal would not at

that time lie. The time for taking an appeal J. Webb Stolleawerck, of Hillsboro, for ap- from the original granting of the injunction pellant. Collins, Morrow & Morrow, of Hillsboro, court on October 30th in no way modified or

had long since expired. The action of the for appellees.

changed the injunction. Appellees attack

this appeal for the want of jurisdiction in RAINEY, C. J. This appeal is from a this court to entertain it. The appeal was judgment overruling a motion to dissolve a not prosecuted in time, which leaves this temporary injunction granted in vacation.

court without jurisdiction; hence the apOn the 18th day of September, 1918, Hon. peal will have to be dismissed. The appeal Horton B. Porter, district judge of Hill coun- cannot be sustained on any other ground, ty, in chambers, granted a temporary injunc- as the judgment was on a motion to distion against appellant, at the instance of ap- solve, which motion was overruled, and no pellees, restraining appellant from planting a appeal 'is allowed from such a judgment. certain tract of land or any part thereof in Vernon's Sayles' R. S., art. 4644; Powdrill grain or other crops which will mature dur

v. Powdrill, 134 S. W. 272. ing the year 1919, etc., until further order of

Having no jurisdiction to review and de the court. The writ was issued and made re termine this case, the appeal is dismissed. turnable September 18, 1918, and returned the same day. Appellant filed a motion to dissolve and dismiss.

On October 30, 1918, in vacation the motion to dissolve the temporary injunction was heard, and same was overruled. At the CHEW et al. v. DE WARE et al. (No. 1903.) same time, the parties having appeared, the Court of Civil Appeals of Texas. Texarkana. court heard the pleadings, the evidence and April 12, 1918. Rehearing Denied argument of counsel, and rendered judgment

May 2, 1918.) for plaiatiffs, overruling said motion to dissolve, and that said injunction continue in 1. BOUNDARIES Em3(6)—CORNERS. "Iorce pending trial." Appellant excepted

An established original corner must control. and gave notice of appeal.

2. BOUNDARIES m3(6) – SUBVEYOR's FootOn November 7, 1918, appellant filed his appeal bond, reciting:

The identification on the ground of the foot. "Whereas, in the above styled and numbered steps of the surveyor determines the true bound

ary. cause, pending in the district court of Hill county, Tex., the court in vacation, to wit, on 3. WATERS AND WATER COURSES 111 the 30th day of October, A. D. 1918, granted an LAKES–MEANDER LINES. injunction in favor of plaintiff and against the Where original boundary followed lake me defendants, restraining said defendant from ander line and waters receded imperceptibly, the sowing grain on the 140 acres of land described water's edge was the boundary. in plaintiffs' petition, and all costs, said injunction being a temporary injunction, to which ac

Appeal from District Court, Marion Countion of the court the said Bill Jowell then and there excepted and gave notice of appeal,” etc. ty; J. A. Ward, Judge. -and further proceeded in proper form.

Action by J. M. De Ware and others [1,2] The bond purports to be one for an against W. D. Chew and others. Judgment appeal from the order granting the injunc- on verdict for plaintiffs, and defendants aption as though made October 30, 1918, when

peal. Affirmed. the injunction was granted on the 18th day The republic of Texas issued a patent on of September, and the appeal in this case January 25, 1842, to Robert Potter for 22 was attempted to be perfected on November labors of land situated in what is now Mari7, which is more than a month after the on county on Ferry or Caddo Lake. The granting of the injunction. The statute re- west boundary line of the survey calls for the quires that an appeal from the granting of a lake. Since the time of the location of the temporary injunction must be taken within survey, there has been, it appears, recession

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

STEPS.

W

of waters of the lake. And, upon the con- and at the present time; and (4) that where tention that there is vacant public school the waters of the lake bordered the Robert land or domain between the west boundary Potter survey the recession of the waters line of the Robert Potter survey and the was so slow and gradual as to be imperceptiwater's edge of the lake, the state of Texas ble at the time to the eye. issued to W. D. Chew two patents; one On the verdict of the jury the court enterpatent of June, 1910, calling for 344 acres; ed judgment for the plaintiffs. The findings and one patent of November, 1913, calling of fact made by the jury, having support in for 178 acres.

the evidence, are here adopted. The appellees, owners under the Robert Potter survey, brought the suit in trespass

Schluter & Singleton, of Jefferson, for apto try title against the appellants, claiming

pellants. under the W. D. Chew patents. It was

T. D. Rowell, of Jefferson, T. W. David

son, of Marshall, and W. L. Grogan, of agreed in writing between the parties that the appellees owned and had the record title

Shreveport, La., for appellees. to all land claimed by them to all of sections

LEVY, J. (after stating the facts as above). 12, 13, and 24 of and under the Potter sur

[1-3] The original locating surveyor of the vey, except so much thereof as may extend

Robert Potter survey, as found by the jury, beyond the west boundary line of the Potter

actually established on the ground and marksurvey. And the controlling issue in the

ed for identification the northwest corner of case, as made in the trial, is the location of the west boundary line of the Robert Potter

the survey at å post oak tree marked "R. P."

near the water's edge of Ferry or Caddo survey. If the present water's edge of the

Lake. An established original corner must lake is the west boundary line of the Robert

govern and control. Accordingly, the other Potter survey, then the appellees are enti

calls in the patent for the west line will tled to judgment for the land sued for.

be followed from the established northwest The case was tried on special issues. The

corner. These calls are for the meanders of jury made findings of fact that: (1) The sur

the lake, and, as found by the jury, the veyor who originally located and surveyed the Robert Potter survey actually located and

original locating surveyor of the Robert Potmarked on the ground the northwest corner

ter survey intended to make the water's edge

and the meanders of Ferry or Caddo Lake of the survey at a post oak marked R. P.

the west boundary line of the survey. The near the water's edge of Ferry or Caddo

identification on the ground of the footsteps Lake; and (2) intended at the time of the

of the surveyor determines the true boundary. original survey to make the meanders and

Hughes v. State, 57 Tex. Civ. App. 306, 123 water's edge of the lake the west boundary

S. W. 177. Therefore the west boundary line line of the survey; and (3) the west bounda

of the Robert Potter survey will in this case ry line was surveyed and established, but

follow the meanders of the lake; for, as unmarked, on the ground by the original

found by the jury, the receding of the waters surveyor. The jury made the further findings

of the lake on the west boundary line of the that: (1) The waters of the Ferry or Caddo

survey was slow and gradual, and where Lake since the location of the Robert Potter

the change is gradual and imperceptible the survey slowly and gradually receded for

boundaries extend to the waters. 5 Cyc. 904; about two years; (2) that the northwest cor

Tiedeman on Real Property, $ 489; 1 R. C. ner of the Robert Potter survey was ten yards nearer the water's edge of the lake at

We have carefully examined all the assignthe time of the original location than at the ments in the case, and conclude that no erpresent time; (3) that the waters of the lake ror exists that warrants à reversal of the were eight feet higher at the time of the lo- judgment. cation of the survey than since the recession Affirmed.

MEMORANDUM DECISIONS

error.

ORANGE LUMBER CO. v. ELLIS. (No. | missed for want of jurisdiction. C. D. Russell,
3-2546.) (Commission of Appeals of Texas, of Plainview, for plaintiff in error. K. Ewing
Section A. Jan. 15, 1919.) Error to Court of Bain, of Floydada, for defendant in error.
Civil Appeals of First Supreme Judicial Dis-

TAYLOR, J. This action is in the form of trict. Action by J. S. Ellis against the Orange trespass to try title to the S. W. 14 of survey Lumber Company. A judgment for plaintiff No. 96, block B-1, B. S. & F. certificate 1/770, was reversed by the Court of Civil Appeals (153 in Briscoe county. The real purpose of the suit. S. W. 1180), and upon an affirmance of the however, is to determine the true location of the judgment of the trial court on rehearing, de- south boundary line of the plaintiff's one-fourth fendant brings error. Affirmed, as recommended of the section. 162 S. W. 916. It is a case of by the Commission of Appeals. Adams & Hug- boundary purely, and comes under the rule statgins, of Orange, and Baker, Botts, Parker & ed in Cox v. Finks, 91 Tex. 318, 43 S. W. 1. Garwood, of Houston, for plaintiff in error. The writ was sought on the ground that the Holland & Holland, of Orange, for defendant in Court of Civil Appeals erroneously declared the

substantive law of the case. The writ was SONFIELD, P. J. Suit by J. S. Ellis against granted in April, 1914. In November following the Orange Lumber Company for personal in the Supreme Court decided the case of Cole v. juries sustained by him while in the employ of Cobolini, 106 Tex. 472, 170 S. W. 1036, holding defendant. A trial by jury resulted in a verdict that the act of March 28, 1913 (Laws 33d Leg. and judgment in favor of plaintiff. On appeal, p. 107), amending article 1521, Revised Statutes the Court of Civil Appeals reversed the judg. 1911, defining the jurisdiction over the Court ment of the trial court and remanded the cause, of Civil Appeals where such court has errone153 S. W. 1180. Pending motions for rehearing ously declared "the substantive law of the case** by both parties, the Court of Civil Appeals (paragraph 6), did not repeal article 1591, Re certified certain questions to the Supreme Court, vised Statutes 1911, which made judgments of among others, whether, upon the facts presented the Courts of Civil Appeals final in certain in the certificate, there was error in refusing a cases, including cases of boundary. The court, requested charge, to the effect that under the in concluding the opinion, stated that during tbe undisputed evidence the plaintiff assumed the prior term, in applying the act of 1913, the risk of the accident, which resulted in his injury, i court acted under the view that its effect was to and instructing the jury to return a verdict for confer upon the Supreme Court jurisdiction over the defendant; or did the facts so stated present questions of substantive law in cases made final the issue of assumed risk, which should have in the Court of Civil Appeals by the terms of been submitted to the jury, as was done? The article 1591, and added that in a few cases writs court answered that, upon the facts certified, the of error had been granted in such cases, which, issue was properly submitted to the jury. 105 under the ruling announced, would be dismissed. Tex. 363, 150 S. W. 582. Based upon the an- This is doubtless one of the cases referred to. swer to this and the other questions certified, Ve are of opinion that the Supreme Court has the Court of Civil Appeals granted the motion no jurisdiction of the case, and recommend its of appellee (plaintiff) for rehearing and affirmed dismissal. the judgment of the trial court. A writ of er

PHILLIPS, C. J. Case dismissed for want of ror was granted by the Supreme Court; the jurisdiction, as recommended by the Commiscourt being inclined to the opinion that upon sion. Judgment will be so entered. the record disclosed, which was regarded as somewhat different from the facts certified, the plaintiff assumed the risk. Upon a careful examination of the record, we find no facts dis- HUGHES v. STATE. (No. 5231.) (Court of closed which, under the principles of law an- Criminal Appeals of Texas. Dec. 4, 1918.) Apnounced by the Supreme Court in its answer to peal from Criminal District Court, Harris the questions certified, would lead to the conclu-County; C. W. Robinson, Judge. R. J. Hughes sion that the plaintiff, as a matter of law, as- was convicted of aggravated assault, and he apsumed the risk. We therefore recommend that peals. Affirmed. E. B. Hendricks, Asst. Atty. the judgment of the Court of Civil Appeals, Gen., for the State. affirming that of the district court be affirmed. MORROW, J. The appellant is under sen

PHILLIPS, C. J. The judgment recommend-tence of confinement in the county jail for 12 ed by the Commission of Appeals is adopted, months for the offense of aggravated assault in and will be entered as the judgment of the a conviction on an indictment for an assault Supreme Court.

with intent to rape. The record is without bills of exception or statement of facts, and presents

no question for review. The judgment is therePENN V. BRISCOE COUNTY. (No. 28- fore affirmed. 2658.) (Commission of Appeals of Texas, Section A. Dec. 21, 1918.) Error to Court of Civil Appeals of Seventh Supreme Judicial Dis- RAY v. STATE. (No. 5203.) (Court of trict. Action by J. W. Penn against Briscoe Criminal Appeals of Texas. Nov. 20, 1918. County. From a judgment of the Court of Rehearing Denied Jan. 15, 1919.) Appeal from Civil Appeals (162 S. W. 916), affirming a judg- District Court, Bexar County ; W. S. Anderson, ment for defendant, plaintiff brings error. Dis- | Judge. J. T. Ray was convicted of murder, and

he appeals. Affirmed. Carlos Bee, of San An-, find that no brief has been filed by appellants in tonio, for appellant. E. B. Hendricks, Asst. this court, and it appearing, upon inspection of Atty. Gen., for the State.

the pleadings and the findings of fact made by DAVIDSON, P. J. Appellant was convicted

the trial court, that the judgment, as rendered, of murder; the jury assessing bis punishment at

was such as was authorized by the pleadings 25 years in the penitentiary. This is a fact

and supported by the court's findings of fact, case, without bills of exception, either to the in

and there being no fundamental error appearing troduction or rejection of testimony or to the

upon the face of the record, it is the opinion of charges of the court. The evidence is fully suffi

this court that the judgment of the lower court cient to support the verdict of the jury. Ap

should be affirmed; and it will be so ordered. pellant's theory of his case was self-defense. The jury, however, disregarded his view of it and found him guilty. We deem it unnecessary | KNOX v. B. K. KING & SON. (No. 396.) to review the facts. They would be of no prac- (Court of Civil Appeals of Texas. Beaumont. tical utility to the bar and bench, and there Dec. 19, 1918.) Appeal from Nacogdoches fore the facts are not collated. The judgment County Court; J. F. Perritte, Judge. Proceedwill be affirmed.

ings between Hiram Knox and B. K. King & Son. From a judgment for B. K. King & Son,

| Knox appeals. Affirmed. J. W. Minton, of BARBEE et al. v. PRUETT et al. (No.

Hemphill, for appellant. V. E. Middlebrook, of 410.) (Court of Civil Appeals of Texas. Beau

Nacogdoches, for appellees. mont. Dec. 19, 1918.) Appeal from District Court, Liberty County; J. L. Maury, Judge.

BROOKE, J. After a careful examination of Suit by Ed Pruett and others against Will L. the record in this case, together with the briefs Barbee and others. Judgment for plaintiffs, ana of counsel for the respective parties, we have defendants appeal. Affirmed. E. B. Pickett,

come to the conclusion that there is no reversible Jr., of Liberty, and W. D. Gordon and Thos. J. error shown, and the cause should therefore be Baten, both of Beaumont, for appellants. D. , affirmed. J. Harrison and H. E. Marshall, both of Liberty, for appellees. HIGHTOWER, C. J. This is an appeal from of Civil Appeals of Texas. Beaumont. Nov.

WEIL V. HATTON et al. (No. 308.) (Court a judgment of the district court of Liberty coun

21, 1918.) Appeal from District Court, Orange ty in a suit brought by the appellee against the

County; W. R. Blackshear, Judge. Action beappellants, praying the cancellation of a certain

tween Felix Weil and O. M. Hatton and others. lease contract executed by appellees in favor of: appellants covering certain lands owned by ap

From the judgment rendered, Weil appeals. Afpellee in Liberty county. The principal ground

firmed. Bisland & Bruce, of Orange, for appelupon which the lease was sought to be canceled

lant. Holland & Holland, of Orange, for appelwas that the same had been procured by fraud

lee. and deceit practiced by the appellant Will L. BROOKE, J. In this case no briefs have Barbee upon the appellee Pruett. The trial was been filed by either party, and we have, after before the court without a jury, and judgment carefully examining the record, found no error was rendered canceling the lease as prayed, and requiring a reversal. The case appears to be upon request of appellants the trial court pre-controlled by Reyes v. Kingman Texas Implepared and filed findings of fact and conclusions ment Company, 188 S. W. 450. The judgment of law. Upon an inspection of the record, we of the trial court is therefore affirmed,

END OF CASES IN VOL. 207

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