line upon the ground. The northeast corner of the Richard Gregory seems to have been clearly established, and practically is without dispute. Taking that as a basis, all the grants, and especially the grant of the Dikes, call to begin at the northeast corner of the Richard Gregory, and run from thence 400 varas, and fix the southeast corner of the Dikes at this point. We are of opinion that this record bears out clearly that the verdict, as found by the jury, is, in fact, correct, and does fix the southeast corner of the Andrew 'Dikes survey to be at the place contended for by appellee. [3] This comports with the universal rule that senior surveys control junior surveys, and we think this record shows that the east line of the Dikes is a common line with the west line of the Abbott, and that it was so placed there by the original surveyors. Believing as we do, the assignment is overruled. Fulton v. Frandolig, 63 Tex. 330; Converse v. Langshaw, 81 Tex. 275, 16 S. W. 1031; Jones v. Burkitt, 150 S. W. 275; Oliver v. Mahoney, 61 Tex. 610; McAninch v. Freeman, 69 Tex. 447, 4 S. W. 369; Moore v. Reiley, 68 Tex. 670, 5 S. W. 618; Sloan v. King, 33 Tex. Civ. App. 542, 77 S. W. 50; Shelton v. Bone, 26 S. W. 225; Busk v. Manghum, 37 S. W. 461; Goodrich v. West Lbr. Co., 182 S. W. 348; Chesson v. La Flore, 191 S. W. 745; Polk v. Reinhard, 193 S. W. 690; Hughes v. Hughes, 191 S. W. 743; Stark v. Brown, 193 S. W. 718. [4] In this connection it might be well to say, with reference to the contention that the appellee had no claim of right to the land, but entered upon the land purely for the purpose of acquiring limitation, without claim of ownership of right, and therefore her possession is not adverse, under the statute, that the Chief Justice of our Supreme Court has recently handed down an opinion touching the Stevens v. Pedregon Case in 106 Tex. 576, 173 S. W. 210, in which he uses the following language: it to mean, and as other authorities generally "The court has a number of times declared that a naked trespasser may acquire a limitation title to land under the ten-years statute. Smith v. Jones, 103 Tex. 632 [132 S. W. 469, 31 L. R. A. (N. S.) 153], Craig v. Cartwright, 65 Tex. 413, and Word v. Drouthett are among the decisions so holding. "It was not the purpose of Stevens v. Pedregon to overrule this established holding of the court, though there is an expression in Chief Justice Brown's opinion that is to some extent confusing. "The claim of right' to which the statute refers simply means that the entry of the limitation claimant must be with the intent to claim the land as his own, to hold it for himself, and such must continue to be the nature of his possession. That it is necessary that his entry upon or holding of the land be founded upon his having some character of title is opposed to the theory of the ten-years limitation statute." Houston Oil Co. of Texas v. H. C. Jones et al., 198 S. W. 290. With reference also to the ninth proposition under the first assignment, in which it is contended that the M. L. Abbott survey was from March, 1904, until April, 1909, in the possession and control of the United States Circuit Court at Houston, Tex., and its receiver, which court enjoined all parties from interfering with its possession, so that limitation could not begin to run until the property passed from the control of the court, in April, 1909, even if appellee's occupancy was of the Abbott survey, that the peremptory instruction should have been given, and that as the Abbott survey was in custodia legis from March, 1904, until April, 1909, and as the appellant and all other parties were restrained from interfering with possession of the court, limitation did not begin to run against appellant in favor of appellee until after the control of the court over such property ceased, even if appellee was on said survey; it is contended by appellee, on the other hand, that the appointment of a receiver does not in any way affect the running of the statute of limitation, for the mere appointment of a receiver does not suspend the right of action against the corporation or its receiver to bring suit for a recovery of its property, unless the proceeding in which the receiver is appointed has resulted in dissolving the corporation, "While the requirement that the appropria- or seeks a judicial dissolution, and the court tion of the land must be commenced and contin- enjoins the prosecution of any action, and ued under a claim of right inconsistent with and hostile to the claim of another' was first in- that the reason the rule exists is that the corporated in the statute in 1879, at an early existence of the corporation is not destroyday this court announced that such claim was ed, or even suspended, by reason of the propan essential element of adverse possession. Por- erty or franchises being held in custody of tis v. Hill, 3 Tex. 273. The present statutory definition of 'adverse possession,' in a word, is a court of equity. It is further contended simply that which the court had always held that the receiver's relations with the corpo "It is urged that there was no proof that D. M. Jones had any claim to the land when he entered upon it, and none that his occupancy was continued under any claim other than an inFor this tention to hold the land as a home. reason it is contended that his possession was not adverse within the meaning of the statute, because not commenced and continued under 'a claim of right.' Stevens v. Pedregon, 106 Tex. 576 [173 S. W. 210], is relied upon in support of this proposition. "The statute defining 'adverse possession,' article 5681, is as follows: 'Adverse possession is an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.' Tex.) HOUSTON OIL CO. v. BROWN 109 ration and its property are substantially, had begun. Cook on Corp. (7th Ed.) vol. 4, p. those of a trustee, and limitations are uni- 3367, § 871, states the general rule that the formly held to run against the property or appointment of a receiver does not stop the action held by a trustee and to bar the ben- running of limitations in favor of a corporaeficiary. It is further contended that, evention, and cites Jackson v. Fidelity Co., 75 though a receiver has been appointed, the Fed. 359, 21 C. C. A. 394; Int. Ry. Co. v. company may, by leave of the court, sue McCulloch, 24 S. W. 1101. In the same volto recover property in its own name against | ume, p. 369, § 871, he says: Even though a any one except the receiver; and, further, receiver has been appointed, the corporation that, where there is some one in esse who may, by leave of the court, bring actions in can bring the suit, the statute of limita- its own name against any one, except the retion will run, and it is undeniable that the re- ceiver, to try the legal title to property. Ry. ceivers could have brought an action; the Co. v. Sandoval, 111 Ill. 32; M., K. & T. Ry. same principles apply as of executors and Co. v. Graham, 12 Tex. Civ. App. 54, 33 S. W. administrators who are vested with the prop- 576; Smith v. T. & N. O., 101 Tex. 410, 108 erty even of a minor. It is further argued S. W. 819. that no disabilities intervened because of the appointment of receivers for the Houston Oil Company of Texas, for the suit did not dissolve the corporation, nor was its dissolution sought, and no injunction restraining interference, by suits or otherwise, as against the company. It seems that paragraph 11 of the order ap counts, etc., * * * pointing a receiver vests them with all prop erty of the company, and paragraph 15 of said order appointing the receivers provides: "Said receivers are hereby authorized and empowered to collect, as far as possible, acand are fully authorized and empowered to sue in their name as receivers for and recover all the moneys, property, or assets of said company, and to that end are authorized to institute and prosecute all such suits by supplemental and ancillary bills herein, or in other courts of competent jurisdiction that may be necessary for the protection and preservation of, or in reducing to possession the properties, rights, and assets of, the said company." [5] A consideration of the contentions of both parties leads us to the conclusion that the contention of appellant is unsound. 25 Cyc. 1282, states the following: "As a general rule, mere appointment of a receiver does not in any way affect the running of the statute of limitation." Thompson on Corporations, §§ 6894, 6895, states: "The mere appointment of a receiver does not suspend the right of action against a corporation itself, unless the proceedings in which the receiver is appointed has resulted in dissolving the corporation, or it is the purpose to judicially dissolve the corporation, and the court enjoins the prosecution of any action against the corporation during the pendency of the suit, and gives as the reason for this rule because the existence of the corporation is not destroyed or even suspended by reason of the property or franchises being held in custody of the court of equity." Johnson v. Talley, 60 Ga. 540; White v. Meadowcroft, 91 Ill. App. 293; Williams v. Taylor, 99 Md. 306, 57 Atl. 641; Kirkpatrick v. McElroy, 41 N. J. Eq. 539, 7 Atl. 647; Meuseback v. Half & Bro., 77 Tex. 187, 13 S. W. 979; Belt v. Cetti, 100 Tex. 98, 93 S. W. 1000; Rindge v. Oliphint, 62 Tex. 685; Thomas v. Greer, 6 Tex. 372; Richardson v. Vaughan, 86 Tex. 93, 23 S. W. 640; Houston Oil Co. v. Griffin, 166 S. W. 902. In the Griffin Case, just mentioned, it is held that the appointment of a receiver did not stop the running of the limitations that The second assignment of error is as follows: "The court erred, to the prejudice of the defendant, in submitting the case to the jury, and in rendering judgment against the defendant, because under all of the evidence in the case, as a matter of law, it was shown that plaintiff's improvements were on the Dikes survey, and were not on any part of the M. L. Abbott survey; so that under no theory of the case could judgment have been rendered except in favor of the defendant for all of the land in controversy, it having been agreed that defendant was the owner of the M. L. Abbott survey, unless plaintiff had acquired title to a part thereof under the ten-years statute of limitations, and defendant having filed its cross-action against plaintiff for all of the Abbott survey." We have considered this matter as best we could under the first assignment, and we are of opinion that there is no merit in the assignment and that the same must be overruled. The third, fourth, fifth, and sixth assignments will be considered together, as fol lows: (a) "The verdict of the jury and judgment of the court to the effect that plaintiff's improvements are on the Abbott survey are erroneous, and are against the law and the evidence, and should be set aside, because, under the undisputed evidence in the case, the west line of the M. L. Abbott survey can be located with definiteness and certainty from the established corners of the Abbott survey, there being no evidence to show that the location from such established corners, by course and distance, should be disregarded and some other call given effect, so that such west line of the Abbott, when so located, is entirely east of plaintiff's improvements." (b) "As the undisputed evidence in this case shows that plaintiff was not entitled to recover any land other than that on the A. Dikes survey, the court should have given defendant's requested charge No. 2, instructing the jury that plaintiff could recover only the land on the A. Dikes survey, and that as to the Abbott survey the verdict should have been in favor of the defendant. The court erred, to the prejudice of the defendant, in refusing to give its special charge No. 2, as follows: 'Gentlemen of the jury, in this case you are instructed that, under all the facts most favorable to the plaintiff, she can recover no more land than is included within the A. Dikes survey, and you will therefore return your verdict in favor of the defentant, and against the plaintiff, for all of the M. L. Abbott survey not in conflict with the A. Dikes survey'-because under all of the evidence in this case, taking that most favorable to plaintiff, all of her improvements were on that part of the Dikes survey owned by her in conflict with the Abbott survey owned by the defendant." (c) "As it appears from the evidence that the plaintiff entered upon land purely for the purpose of acquiring title by limitation, and under no claim of ownership or right, her possession would not be adverse under the statute; hence the verdict of the jury and the judgment of the court in plaintiff's favor are erroneous and highly prejudicial to the defendant." (d) "As the uncontroverted evidence shows that plaintiff had no claim of right to the land at the beginning and during the continuance of her occupancy, but, to the contrary, showing that her sole intention was to claim 160 acres when her title should become full and perfect under the laws of limitation, the verdict of the jury and judgment of the court both are erroneous and prejudicial to the defendant, and therefore should be set aside." Without going into detail on the merits of these assignments, a great many of which and perhaps all have been covered in the opinion as to the first assignment, and after a careful consideration of the same, we are of the opinion that the same should be overruled. testimony of a claim to a specific tract or a "The court should grant the defendant a new trial in this case, for the reason that in his argument to the jury on the question of whether or not the east line of the Dikes survey was located on the ground at the place where plaintiff claimed it, or at the place where the defendant claimed it, the counsel for the plaintiff made improper and unfair argument as follows: Gentlemen of the jury, are you going to permit the Houston Oil Company of Texas to If you do, there may come a time when it will move these lines where they want them to be? come and move your lines around your lands'which argument must have prejudiced defendant's case before the jury, especially as the verdict of the jury was so contrary to the great weight and preponderance of the evidence as to be clearly wrong, to which argument the de The seventh assignment of error is as fol- fendant then and there in open court duly exlows: "As the evidence in this case shows that plaintiff claimed a definite line as the south boundary of the land that she claimed on the M. L. Abbott survey, and as plaintiff sued for an undivided 160 acres of said Abbott survey, the evidence is insufficient to support the verdict of the jury and judgment of the court awarding to plaintiff an undivided 160 acres of land, it not being shown that plaintiff claimed an undivided 160 acres, but, to the contrary, that she made claim to a specific south boundary." This assignment is submitted as a proposition, and also the following proposition is made: "The verdict and judgment, giving appellee an undivided 160 acres out of the entire Abbott survey, must be set aside, for the appellee herself testified that she did not claim 160 acres out of the entire Abbott survey, but claimed 160 acres out of a definite part of the Abbott survey, so that the verdict and judgment are not supported by the evidence, but are contrary thereto; and that as the 160 acres claimed by appellee has its south line definitely fixed, the verdict and judgment awarding to plaintiff an undivided 160 acres out of the entire Abbott survey are not supported by the evidence, and must be set aside." On the contrary, it is contended that there is no evidence of Mrs. Brown's claim to a specific tract by which judgment could be rendered for a defined portion of the Abbott. Mrs. Brown testified, in part, as follows: "I told Mr. Hopson that I claimed 160 acres on the M. L. Abbott survey. I told him that I claimed 160 acres on the Abbott right there where my house sets. Q. What was the south line of the 160 acres that you claim? A. The 160 acres there where the house was. I claimed that the R. Gregory was the south line of my 160 acres. I claimed the 160 acres which south line was on the north line of the R. Gregory. I didn't say whether I was claiming in a square or not." [6] There seems to have been no other evidence about a specific claim. She seems to indicate that she claimed to a specific line cepted because such argument was inflammatory and prejudicial to the defendant, was calculated to prejudice the jury against the defendant, and intended to alarm them," etc. The bill of exceptions to the above language reads in part as follows: "To which argument of said counsel the defendant then and there in open court duly excepted, because such argument was inflammatory and highly prejudicial to this defendant, calculated to prejudice the minds of the jury appeal to the local feeling of the various juryagainst the defendant; because same was an men, tending to alarm them as to the safety of their own lands and land lines; because such argument was entirely out of the record, not Supported by the facts or the pleadings, and was a request that the jury find against defendant in defendant; because such argument, though order to protect their own interests against the withdrawn by the court, and though the jury for any purpose, remained in the minds of the were told by the court not to consider the same jury, and likely would result in putting the defendants in an unfavorable attitude before the jury." The argument was improper, but, as presented by the record, there is no reason to believe that it influenced the jury, and nothing is shown which would indicate that it did influence the jury. The court instructed the jury not to consider the improper language used by the counsel in argument, and the verdict shows plainly that it was not the result of improper argument, but was based upon the facts of the case in this record. We do not feel that in this attitude of the case, with a record that reflects throughout that the jury arrived at the conclusion which they did upon ample testimony, that we would be called upon to reverse and remand the case for the above improper argument alone. However, we desire to say and to emphasize that such argument should not be permitted to be used, as it seems in this case, in so far a. the court was concerned, was not. although highly improper, is not of such gravity in this particular case as would render it right to reverse the case on that ground alone. The assignment is overruled. The ninth, tenth, and eleventh assignments will be considered together, as follows: (a) "The court erred, to the prejudice of the defendant, in permitting plaintiff's witness Best, over the objections of the defendant, to testify that the line between the Abbott and Dikes survey was west of plaintiff's improvements, when the testimony of the witness showed clearly that he was testifying as to his opinion and conclusions, and not from any known facts, and not from anything found on the ground called for in the field notes to the Dikes or the Abbott surveys, his testimony showing that he only went there for the purpose of seeing the line, and there being nothing to show that the line about which the witness testified was the correct line." (b) The court erred, to the prejudice of the defendant, in permitting plaintiff's witness Worthy, over the objections of the defendant, to testify that the line between the Abbott and Dikes survey was west of plaintiff's improvements, when the testimony of the witness showed clearly that he was testifying as to his opinion and conclusions, and not from any known facts, and not from anything found on the ground called for in the field notes to the Dikes or Abbott surveys, his testimony showing that he only went there for the purpose of seeing the line, and there being nothing to show that the line about which the witness testified was the correct line. The court erred, to the prejudice of the defendant, in permitting plaintiff's witness Worthy, over the objections of the defendant, to testify as to where the line between the Dikes and Abbott surveys was located, because the location of this line was a controlling issue in the case which should have been left to the determination of the jury from all of the facts in evidence, uninfluenced by the opinion and conclusions of the witness as to where he believed the line was located." (c) "The court erred, to the prejudice of the defendant, in permitting the witnesses for the plaintiff, over the objections of the defendant, to testify that the east line of the Dikes survey was west of plaintiff's improvements, so as to place plaintiff's improvements on the Abbott survey, because such testimony necessarily was as to conclusions and opinions of the witnesses on a material and important issue in the case, which should have been determined only by the jury, uninfluenced by opinions and conclusions of witnesses testifying on the trial, and because such testimony was in conflict and antagonistic to the location of the land by the field notes of the survey. The court erred, to the prejudice of the defendant, in permitting plaintiff's witnesses to testify, over the defendant's objections, that plaintiff's improvements were east of the Dikes survey, on the Abbott survey, and that the east line of the Dikes and west line of the Abbott was west of plaintiff's house, because such testimony was in conflict with and antagonistic to the location of the Dikes and Abbott surveys, and of the line between them when established according to the field notes of each of the surveys, so that the testimony of the witnesses was an attempt on the part of the plaintiff to locate the Dikes survey and the Abbott survey, and the line between them, otherwise than by the locative calls in the field notes of said surveys." [8, 9] It seems that testimony of the same character was produced by both appellant and appellee without objection or reservation. It further appears from the record that the as to where lines were actually located, and showed the west line to be the old line, and the only line run upon the ground until very recent years, the evidence saying the improvements were east of such old and only line, and, in our judgment, this was properly admitted. Best, one of the witnesses for appellant, testified with reference to these matters, which testimony was brought out by appellant. The assignment, in our judgment, has no merit, and the same is overruled. The twelfth assignment of error is as follows: "The court erred, to the prejudice of the defendant, in refusing to give its requested charge No. 5, as follows: 'Gentlemen of the jury, was the possession, cultivation, and use, if any, by the plaintiff, of the land covered by her improvements, if any, sufficient to constitute to the defendant notice that plaintiff was claiming 160 acres of land or only the land covered by her improvements? You will answer this question by stating what you believe the facts to be in your own words'-because such issue of fact was clearly raised by the evidence in the case, so that the defendant was entitled to have the specific question determined by the jury." The court gave appellant's special charge No. 4, which reads: "Gentlemen of the jury, was the possession, cultivation, and use, if any, of the land covered by the plaintiff's improvements, if any, sufficient, under all the facts and circumstances and evidence before you to constitute notice to the defendant that the plaintiff was claiming 160 acres of land out of the M. L. Abbott survey? You will answer this question 'Yes' or 'No,' as you may find the fact to be. If you answer 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 circumstances and facts of this case, gave notice of her claim to the defendant." The jury answered the first question "Yes," and to the last question, "We answer that part of the M. L. Abbott survey including Mrs. Brown's improvements." [10] The court gave, as above set out, in its charge the material issues in the case, and it was not error for the court to refuse a special charge that sought to single out and submit a question to the jury that was not controlling. Having given the charge as above stated, it was not error to refuse the further charge as complained of by the appellant. The assignment is overruled. The thirteenth and fourteenth assignments of error are as follows: (a) "The court erred in refusing to submit to the jury defendant's requested charge No. 8, as follows: 'Gentlemen of the jury, at what distance and in what direction is the northeast corner of the A. Dikes survey from the southeast corner of the E. Dickerson survey, if any? You will answer this question in your own words as you find the fact to be'-because, taking the view of the case most favorable to plaintiff, a question of fact was raised as to what distance and direction, if either, the northeast corner of the Dikes survey was from the south the view of the case most favorable to plaintiff, a question of fact was raised as to whether or CITY OF BROWNSVILLE et al. v. FERnot the northeast corner of the Dikes and the southeast corner of the Dickerson were located NANDEZ. (No. 5992.) at the same place, or whether or not the north- (Court of Civil Appeals of Texas. San Antonio. east corner of the Dikes was 90 varas east of the southeast corner of the Dickerson, such issue of fact should have been submitted to the jury for their determination, and the court erred, to the prejudice of the defendant, in refusing its requested charge No. 8." (b) "As there was evidence showing that the west line of the Abbott survey was ninety varas or more east of the southeast corner of the Dickerson survey, and as the evidence showed that all of the plaintiff's improvements were less than ninety varas east of the southeast corner of the Dickerson, there was raised a question of fact as to whether or not the west line of the Abbott survey was east or west of the plaintiff's improvements, so that the defendant was entitled to have the jury pass on the specific question as to what distance and what direction the west line of the Abbott was from the southeast corner of the Dickerson survey, and which issue was set out in defendant's requested charge No. 9, refused by the court, which refusal of the court to submit the charge was erroneous and prejudicial to the defendant, and to which action the defendant duly excepted. The court erred, to the prejudice of the defendant, in refusing to give defendant's requested charge No. 9, as follows: 'Gentlemen of the jury, at what distance and in what direction is the west line of the M. L. Abbott survey from the southeast corner of the E. Dickerson survey, if any? You will answer this question in your own words as you may find the facts to be'because the defendant was entitled to have the jury say where the west line of the Abbott survey was located under all of the facts in evidence, the defendant being entitled to have the jury pass on the specific question involved." 1. March 13, 1918.) COURTS 121(3)-COUNTY COURTS-JURIS- Under Const. art. 5, § 16, the county court a If the action of a city manager in refusing FROM ORDER GRANTING INJUNCTION-CON. Where the case is before the Court of Civil quiring that ordinances begin with the words Under charter of the city of Brownsville, re"Be it ordained by the city of Brownsville," an ordinance so beginning was not void because it did not begin "Be it ordained by the council of the city of Brownsville." 5. INTOXICATING LIQUORS 130 ORDINANCE ESTABLISHING SALOON DISTRICT. An ordinance of a city establishing a saloon district was not void because it failed to provide a penalty for its violation. 6. MUNICIPAL CORPORATIONS 111(3) — SALOON DISTRICT ORDINANCE-UNREASONABLE NESS. Under Brownsville City Charter, § 22, authorizing the establishment of districts or limits wherein saloons may be located, and authorizing side such districts, the mere fact that a saloon the city to prohibit the location of saloons outdistrict created had more residences than busi In our opinion, the court in its charge gave to the jury the material issues in the case, and it was not error to refuse a special charge that sought to single out and submit a question to the jury that was not control-ness houses within it, and the fact that the limling. [11] The jury found that Mrs. Brown was on the Abbott survey. In our judgment, it becomes immaterial about the distance, no facts indicating from this record that it was an encroachment, and no question of encroachment was raised. All the field notes call for the distance 400 varas from the northeast corner of the R. Gregory to the southeast corner of the Dikes and the southwest corner of the Abbott, which calls, in our judgment, should control over the 90 varas distance the appellant sought to have found as a fact. its without the district contained more businesshouses than residences, do not warrant the legal conclusion that the ordinance establishing the saloon district is void as unreasonable. Appeal from Cameron County Court; H. L. Yates, Judge. Action by Jose Fernandez against the City of Brownsville and others. From an order granting temporary injunction, defendantsappeal. Reversed, and cause remanded. Amos Rich, of Brownsville, for appellants. E. T. Yates, of Brownsville, for appellee. SWEARINGEN, J. This action was We have carefully gone over the entire brought in vacation by petition to the county record, which is very lengthy, and the ques- judge in chambers, presented on August 25, tions arising upon the trial. We believe 1917, by Jose Fernandez, alleging that he is that the appellant had a fair and impartial a citizen of the state of Texas; that he had trial; that the facts presenting its defense taken all of the necessary steps under the were submitted to the jury in a brief and law to procure a retail liquor dealer's license comprehensive way; that the jury has to pursue the business of a retail liquor dealer found from the evidence, which in our judg- in a storehouse located on lots 11 and 12, in ment was ample, in favor of the appellee; block 57, in the city of Brownsville; that the and, finding no error in the record that would city of Brownsville was incorporated under warrant us in setting the judgment aside, the general laws of the state of Texas in the we are of opinion that the judgment ought year 1885, and that during the year 1915, at to be in all things affirmed. It is so ordered. an election held for that purpose, adopted a |