Opinion
3-4-1903
BROWN v. JOHNSON. *
E. A. Rice and J. M. Moore, for appellant. S. C. Padelford, for appellee.
This suit was instituted by appellee to establish a boundary line between her land and that of appellant, and restrain him from cutting down and destroying a hedge of bois d'arc trees alleged to be on her land. A trial resulted in a verdict and judgment in favor of appellee, establishing the hedge as the boundary, and restraining appellant from interference with the hedge. The verdict finding the hedge of bois d'arc trees to be the boundary line between the two tracts is fully sustained by the statement of facts. There was evidence that tended to establish that the boundary line had been agreed on by the owners of the two tracts, and the court did not err in submitting that issue to the jury.
The jury returned the following verdict: "We, the jury, find for the plaintiff, that the injunction was properly sued out. We further find that the hedge running practically north and south is the agreed boundary line between the tracts of land in controversy, owned by the defendant, Brown, and the plaintiff, Josephine Johnson." This finding of the jury, which is supported by the facts, disposed of all questions as to the ownership of the land on either side of the hedge, for it is clear that an agreement to make the hedge the boundary line settled all questions between the owners of the respective tracts as to the ownership of the land on each side of the hedge. It follows that any error that may have been committed by the court as to limitations did not have any effect upon the jury, for the finding was not based on limitation, but on an agreement that fixed the hedge as the boundary between the two tracts Shifflet v. Morelle, 68 Tex. 382, 4 S. W. 843 Parker v. Chancellor, 78 Tex. 524, 15 S. W. 157.
It was admitted in the trial court "that the plaintiff owned the 107 acres described in plaintiff's petition, and lying east of the hedge, and that defendant owned 61 acres lying west of the hedge, described in defendant's answer, and that the hedge in dispute in this case is as to the western boundary line of the 107 acres owned by the plaintiff, and the eastern boundary line of the 61 acres owned by the defendant." The agreement eliminated almost if not every question from the case, for if one party owned the land east of the hedge, and the other west of the hedge, the hedge would seem to be necessarily the boundary line. At any rate, after making that agreement, appellant is in no position to complain that the court instructed the jury that he owned the land west of the hedge, and Josephine Johnson the land east of the hedge.
The testimony of the surveyor showed conclusively that, in fixing the boundary line at the hedge, appellant received 5 or 6 acres of land more than he was entitled to. The surveyor's testimony showed that the northwest corner of the original Brown survey, of 200 acres, was the only well-marked corner; and, using that as a starting point, his survey indicated that the hedge stood 9 varas east of the east line of appellant's survey, of 61 acres. The testimony of the surveyor was practically uncontradicted. Independent of the agreement between the father of appellant and the husband of appellee to make the hedge the dividing line between the two tracts of land, the testimony conclusively established that appellant got more land that he was entitled to by his title papers.
The evidence established that the hedge was planted by the father of appellant, and it is contended that the injunction should not have been made perpetual, because by the terms of articles 2501, 2502, Rev. St. 1895, appellant would have the right to remove the hedge by giving six months' notice to appellee. The terms of those statutes are not as clear as might be desired, but we are of the opinion that the word "fence," as used in the statute, has no reference to, and does not include within its meaning, a hedge. The common and usually accepted meaning of the word "fence" is an inclosing structure of wood, iron, or other material, and such definition must have been in the mind of the Legislature when the articles in question were enacted. Where two persons are the joint owners of a fence, their interests might be separated and partitioned without material injury to either; but not so with a hedge, which necessarily consists of growing trees, vines, or shrubs, unless one party owned a certain portion of it, and the other party the other part. In this case, however, it was agreed that the hedge was the boundary line —that is, that a line running directly through the middle of the hedge, no matter what its width, was the dividing line between the two tracts—which was necessarily an agreement that the absolute title to one-half the hedge thus measured belonged to each party to the agreement. Such being the case, the hedge could not be destroyed by either party without trespassing on the rights of the other. The judgment enjoins nothing but the cutting and interference with the hedge "which is situated upon and is the division line between plaintiff and defendant," and such cutting or interference with the hedge on the division line would necessarily invade the rights of appellee. In addition to the agreement that the hedge should be the boundary line, it was proved that appellee and her husband had exercised control over the east side of the hedge for over 20 years, trimming it and using and enjoying it.
The judgment is affirmed.
Rehearing denied April 1, 1903.