A. J. Hefner and T. P. Lockhart v. C. T. Downing, 57 Tex. 576

Stayton, Associate Justice. The question in issue in this cause was not as to the true boundary line as it would be fixed by an actual survey of the land of the appellee by its field notes, but whether a marked line between them had been so recognized and acted upon for a long time as to preclude Downing, as against Lock-hart, who had purchased land relying upon the marked line as the true line, from disputing that fact.

There was evidence tending to show that Downing, and those persons from whom Lockhart bought, had recognized the marked line as the true line between their lands since 1867, and that upon such recognition, improvements had been made upon the land now in controversy, which upon an actual survey would be upon the land of Downing. There was also a conflict of evidence as to whether Downing had been induced to make and recognize the marked line as the true line, by a misrepresentation made by A. J. Hefner. If the marked line was made and recognized by Downing in consequence of a misrepresentation made by A. J.

Hefner, whether the same was willfully made or not, Downing ought not to be bound thereby in a contest between them; but the contest is now between Downing and Lockhart, who bought from J. L. Hefner, who bought from A. J. Hefner. The court in effect charged the jury, that, if Downing made and recognized the marked line through the false representation of A. J.

Hefner, made either in fraud or through mistake, that then he was not bound thereby, and refused to give charges to the effect that, if Downing respected and acquiesced in the marked line, and allowed the vendees of Hefner to purchase and place valuable improvements on the land in controversy, upon the belief that the line which he had marked and acquiesced in was the true line, then he was bound thereby. Such a charge would have presented the true issue between the parties, and ought to have been given.

That an express parol agreement made by the owners of contiguous lands, as to their boundary line, will be recognized as binding between such persons, has been held by this court. Houston v. Sneed, 15 Tex., 310; George v. Thomas, 16 Tex., 89.

Such an agreement may be implied from the acts and long acquiescence of parties in regard to a boundary line, which should be enforced when a failure to enforce it would result' in injury to subsequent purchasers, who have bought relying upon acts open to their observation, and indicating the true boundary as recognized by those from whom they purchase and contiguous owners; and as between original owners who have acquiesced in a common boundary, whereby one of them has been induced to make permanent and valuable improvements, which he would not otherwise have made on land afterwards in controversy, the same should be enforced.

McCormick v. Barnum, 10 Wend., 111; Willis v. Swartz, 28 Pa. St., 417; Robinson v. Justice, 2 Pa., 22; Carr v. Wallace, 7 Watts, 400; McKelsey v. Truly, 4 W. & S., 324; Storrs v. Baker, 6 Johns. Ch., 167; Wendell v. Van Rensselaer, 1 Johns. Ch., 354; 44 Tex., 269; 45 Tex., 475; 28 Tex., 730; 29 Tex., 72. We are not called upon under the facts of this case to determine 'whether a mere acquiescence in a boundary line, when parties have not been induced thereby to change their situation for a period short of the longest period of limitation, would be sufficient to raise the presumption of such an agreement.

The testimony tends to show that the marked line, or at least a portion of it from which the residue was made by protracting that already made, was made by Downing, and that he recognized the same fully; that he cut timber in accordance with it; and that he saw the improvements made upon the land in controversy while they were being made, and offered no objection thereto. If this be true, it is not a case in which a party has been simply silent when he ought to have spoken, but a case in- which by his own act he may have misled others to their injury.

If it be said that he did this in ignorance of the true boundary of his land, it may be replied, if the evidence be true, that he established the marked line wjthout the exercise of such care in determining the true line as any land owner ought to use in making lines upon which others may rely. He that misleads another to his injury by his negligence ought to be held to the same degree of responsibility as though he had knowingly done so. On the other hand, the testimony of the appellee tends to show that while he respected the marked line in so far as not to cut timber beyond it, that he informed both J. L.

Hefner and Lockhart, when they each purchased, and when they each made improvements on the land in controversy, that his true line would embrace it, and that he said nothing to induce the belief that he would abandon his claim. If this be true, such persons acted in their own wrong in purchasing and making improvements on the land, without having the true line first established, and they would not be entitled to protection simply because the appellee may have marked a line which was not the true one, and took no steps at law to prevent their trespass upon his land.

Any notice to those purchasing and improving the land in controversy, before or at the time they purchased, that Dowming did not recognize the marked line as the true line, made it their duty-to ascertain where the true line was before purchasing and improving.

The charges asked by the appellants may not have been strictly correct, yet their character ivas such as to indicate to the court the real issue to be submitted to the jury, and the failure to give such a charge as would present the issue, together with the fact that the charge given was not a- correct charge considered with reference to the facts in evidence, requires a reversal of the judgment. Judgment reversed and cause remanded. Reversed and remanded. [Opinion delivered November 17, 1882.]