BROOKE, J. The appellee instituted this HOUSTON OIL CO. OF TEXAS v. BROWN. action in trespass to try title against the

(No. 281.)

(Court of Civil Appeals of Texas. Beaumont.
Dec. 28, 1917. Rehearing Denied
April 3, 1918.)

1. ADVERSE POSSESSION 114(2) BOUND-
ARIES SUFFICIENCY OF EVIDENCE.
Evidence held sufficient to support a finding
that plaintiff in trespass to try title, claiming
by adverse possession, had constructed her build-
ings within the boundaries of defendant's land.
2. BOUNDARIES 35(2) - SURVEYS EVI-

DENCE.

Testimony of an old settler was admissible to show that calls in a grant were consistent with the footsteps of the surveyor. 3. BOUNDARIES 25-SURVEYS.

Senior surveys control junior surveys. 4. ADVERSE POSSESSION 68-POSSESSION. Possession is adverse, within the statute, although entry on land is made with no original right, but only for the purpose of acquiring limitation and making a home. 5. ADVERSE POSSESSION

45-APPOINTMENT OF RECEIVER-EFFECT. Appointment of a receiver for a corporation does not stop the running of limitations against the corporation as to one holding land of the corporation adversely.

6. ADVERSE POSSESSION 114(2)-EXTENT OF CLAIM.

Evidence held not to show that one claiming land adversely claimed only to specified bound aries, so as to render judgment for an undivided

160 acres erroneous.

7. TRIAL 133(2)—IMPROPER ARGUMENT.

Argument in trespass to try title, "Are you going to allow the H. Oil Company of Texas to move these lines where they want them to be? If you do, there may come a time when it will come and move your lines around your lands"-although highly improper, was not reversible, where the jury was admonished, and there was nothing to show it was influenced thereby.

8. APPEAL AND ERROR 882(8)-HARMLESS ERROR EVIDENCE.

Where both sides introduced similar evidence, without objection, one party cannot later complain that the evidence was improper. 9. BOUNDARIES 35(1) SURVEYS

DENCE.

It was proper to testify where lines under surveys were actually run upon the ground, and where improvements were located with reference to such lines.

10. TRIAL 244(1) SUBMISSION OF ISSUES -REQUESTED CHARGES.

Where the court gave all the material issues in its charge, it was not error to refuse a special charge that sought to single out and submit a question to the jury that was not controlling.

11. ADVERSE POSSESSION

TENT OF POSSESSION.

96-ISSUES-EX

In action where plaintiff claimed title to 160 acres of land by adverse possession, the question of encroachment not being raised, the distance plaintiff was on defendant's land was immaterial.

Appeal from District Court, Tyler County; W. R. Blackshear, Judge.

Trespass to try title by Mrs. M. J. Brown against the Houston Oil Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed.

Kennerly, Williams, Lee & Hill, of Houston, for appellant. Tom F. Coleman and Thomas & Wheat, all of Woodville, for appellee.

appellant to recover an undivided 160 acres out of the M. L. Abbott 960-acre survey, in Tyler county. Her claim of title was under the 10-years statute of limitations. Appellant pleaded not guilty, and, by way of crossaction, asked for judgment against appellee for all of the Abbott survey.

On the trial of the case it was agreed that the appellant owned the title to all of the Abbott survey, unless the appellee had acquired title to a part thereof under the 10years statute of limitations. After refusing to peremptorily instruct the jury to return a verdict in favor of the appellant, the court, over appellant's objections, submitted the case to the jury on the following issues:

First. Has the plaintiff, Mrs. M. J. Brown, had peaceable and adverse possession of the property in controversy, cultivating, using, and enjoying the same for at least a period of ten years prior to the filing of her suit, as against all parties whomsoever? The jury answered this question, "Yes."

Second. Is the plaintiff's (Mrs. M. J. Brown's) the five acres in field abandoned by her some dwelling house, crib, garden, chicken house, and two years ago, located on the Andrew Dikes survey or on the M. L. Abbott survey? The jury answered, "On the Abbott."

Third. Was the possession, cultivation, and use, if any, of the land covered by plaintiff's facts and circumstances in evidence before you, improvements, if any, sufficient, under all the to constitute notice to the defendant that the plaintiff was claiming 160 acres of land out of the M. L. Abbott survey? The jury answered this question, "Yes."

Fourth. If you have answered the foregoing question "No," then you will not answer the following question; but if you answer the foregoing question "Yes," then you will state what 160 acres of land plaintiff's possession, cultivation, and use, if any, under all the facts and circumstances of this case, gave notice of her claim to the defendant. The jury answered this by stating, "That part of the M. L. Abbott's survey including Mrs. Brown's improvements."

Before the court's main charge was read to the jury, the appellant duly objected and excepted thereto. The appellant duly requested the court to peremptorily instruct the jury to return a verdict in its favor, and asked other special charges, which charges the court refused. The appellant filed its formal motion to set aside the verdict of the jury and for a new trial. Thereafter, on motion of the plaintiff, the court rendered judgment in her favor for an undivided 160 acres of the Abbott survey, and appointed commissioners to effect a partition thereof. Thereafter the appellant duly filed its amended motion to set aside the verdict and judgment, and for new trial, and to the action of the court in overruling this motion the appellant duly excepted and gave notice of appeal, and thereafter in due time filed its appeal bond superseding the judgment of the trial court.

On the trial of this case the appellee endeavored to show that her improvements were on the M. L. Abbott survey, and that her possession had been of such nature that

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

she had acquired title to an undivided 160 acres including her improvements. The appellant, however, insisted that the improvements of the appellee were not on the Abbott survey, but were on the Andrew Dikes survey, of which the appellee was admittedly the owner; and that, regardless of whether her improvements were on the Abbott or on the Dikes, or on that part of the Abbott covered by the junior Dikes survey, the character of the possession of the appellee was wholly insufficient to entitle her to an undivided 160 acres out of the Abbott.

The appellant contends that the judgment

of the trial court should be reversed for the following reasons:

(1) The undisputed facts in this case show that the improvements of the appellee were not on any part of the M. L. Abbott survey, of which the appellant is admittedly the record owner, so that this case for this reason should be reversed and rendered.

(c) "As the undisputed evidence showed that the west line of the Abbott survey had a fixed location, according to its field notes, east of evidence showed that the Dikes east line was appellee's improvements, and as the undisputed definitely located by its own field notes east of appellee's improvements, such showed that appellee had had no possession of the Abbott surlimitations to acquire title, so that the court vey as required under the ten-years statute of erred in refusing to peremptorily instruct the jury as requested."

(b) "It was error for the court to refuse to peremptorily instruct the jury as requested, for under the undisputed evidence, as a matter of law, it was shown that the appellee's improvements were on the Andrew Dikes survey, owned by her, and not on the Abbott survey; so that appellee showed no possession of the land in controversy, and appellant was therefore en(2) The most that can be said for appellee is titled to judgment, as it was agreed that appelthat her improvements were on that part of lant owned the record title to the Abbott surthe Dikes survey owned by her conflicting with vey, and that appellee to show title relied solea part of the M. L. Abbott survey, so that ap-ly on the ten-years statute of limitations." pellee can recover no more of the Abbott survey than that small part of it covered by the Dikes. (3) Under the undisputed facts, the appellee did not show any title under the 10-years statute of limitations, and this case should be reversed and rendered, because: (a) Appellee's possession was not adverse, within the meaning of the statute, in that she expressly admitted that she had no claim of right to the land, but went on it purely for the purpose of acquiring 160 acres under the 10-years statute of limitations; (b) appellee sued for and the judgment awarded her an undivided 160 acres out of the entire Abbott survey, while she expressly admitted that she claimed 160 acres out of a definite part of the Abbott survey, her claim not being to an undivided interest in the whole survey, as alleged in her petition; (c) as the United State Circuit Court at Houston, through its receiver, from March, 1904, until April, 1909, was in possession and control of the Abbott survey, and was vested with the title thereto, the appellant having no title or authority with reference to said property, and as all the parties by said court were enjoined from interfering with its possession, the appellee's occupancy, which began in August after the court took possession of said property in March, was not sufficient to constitute adverse possession, the property being in custodia legis.

(4) On the trial of the case, over the objections of the appellant, witnesses for the appellee were permitted to testify and to give in evidence their opinions and conclusions with reference to the location of the west line of the M. L. Abbott survey, the east line of the A. Dikes survey, and other material lines as well as corners, the locations of which were contested, so that this case should, at least, be reversed and remanded because of the admission of such im

proper evidence before the jury.

(5) The counsel for the appellee made harmful and improper argument to the jury, telling them that, if they located the lines as claimed by appellant, "there may come a time when it will come and move your lines around your land," which argument alone would require this case to be reversed and remanded.

The first assignment is as follows: "The court erred in failing and refusing to peremptorily instruct the jury to return a ver

(d) "As the field notes of the Abbott and Dikes surveys call for corners and lines of surroundit is not admissible to show by parol evidence ing surveys, and contain no inconsistent calls, that a different survey was in fact made for the purpose of controlling the calls in the grants." (e) "As the calls in the field notes of the Abbott and Dikes surveys, when applied to the land, correspond with each other, parol evidence that in point of fact they were not the calls was not admissible to vary them by showing of the survey as actually made."

(f) "As there was no conflict in the calls in the field notes of the Abbott and Dikes surveys, calls must speak for themselves, for to permit there was no room for construction, and the the introduction of parol evidence to vary such calls would be to violate the familiar rule that extraneous evidence is not permissible to vary

a written instrument."

(g) "Where field notes call for certain known and established monuments and boundaries, they may not be controlled by parol proof of a survey entirely inconsistent with and repugnant to the calls of the grant."

On the contrary, it is contended that the location of a survey on the ground, or footsteps of the surveyor, control all classes of calls, and that the verdict of the jury finding that Mrs. Brown resides upon the M. L. Abbott survey, there being evidence to support their verdict, is conclusive on appeal; and also that the proof amply supports the verdict that Mrs. M. J. Brown's improvements were on the M. L. Abbott survey, they

being east of the Abbott and Dikes common division line, and such verdict ought to re

"Resurveyed and corrected for Andrew Dikes, William Pamplin, from which a hickry mkd. X April 20, 1888."