186 S.W. 231
BONNER 
v. 
PITTS.
(No. 7529.)
Court of Civil Appeals of Texas. Dallas.
May 13, 1916.
        Appeal from District Court, Freestone County; A. M. Blackmon, Judge.
        Action by I. H. Bonner against Robert Pitts. From a judgment for defendant, plaintiff appeals. 
Reversed, and judgment entered for appellant.
Page 232
        W. W. Ballew, of Corsicana, and R. L. Williford and T. H. Bonner, both of Fairfield, for appellant. Geo. 
W. Fryer and Jas. MacIntosh, both of Fairfield, for appellee.
        RAINEY, C. J.
        This suit was brought in the ordinary form of an action of trespass to try title, but on the trial it 
resolved itself into a boundary suit, to fix the line between a tract of land containing 54½ acres owned by 
appellant and a tract owned by appellee. Both tracts are out of junior surveys in the M. Riondo 11-league 
grant in Freestone county. The trial court instructed the jury that there were three questions of fact for 
their determination, as follows:
        "(1) Is the 54½ acres of land in controversy a portion of the P. W. Patton or Rich survey; that is, is 
same included, and embraced by the boundary lines of the said Patton or Rich survey, as originally 
surveyed?
        "(2) Is the 54½-acre tract in controversy a part of, and embraced by the lines of the 492-acre tract 
as originally surveyed and set out in the deed from J. W. Zachary to F. J. Satterwhite?
        "(3) Has the defendant any portion of the 54½-acre tract of land in controversy in actual possession, 
under fence; and, if so, how much of same, and when was same actually inclosed by the defendant, or 
those under whom he claims?"
        The verdict of the jury returned was:
        "We, the jury, find for the defendant.
                   "L. B. Boyd, Foreman."
        The judgment as entered, after reciting the verdict, then adds:
        "Wherefore, the jury having determined the true boundary line between plaintiff and defendant to be 
the south line of the Joel Clapp survey and its extension to the river, and having determined this line to be 
the north line of the Patton, or Patterson, or Rich survey, of which this defendant and his tenant in 
common are the owners"
        — and then decrees the 54½ acres sued for to appellee as a part of the Patton or Rich survey, this 
being the survey claimed by appellee.
        Appellant complains, in effect, that the verdict was not responsive to the charge of the court, and 
that answers should have been returned to each of the "special issues of fact" submitted by the charge. 
The court did not submit special issues, but merely stated certain facts necessary to consider in arriving at 
their verdict, and the general verdict would have been sufficient on the general issue of trespass to try 
title; but, the case having resolved itself into one of boundary, the verdict of the jury was not sufficient 
upon which to fix the true location of the line in question. In such cases the law requires that the jury by 
its verdict shall definitely locate the line. Reed v. Cavett, 1 Tex. Civ. App. 154, 20 S. W. 837; Farnandes v. 
Schiermann, 23 Tex. Civ. App. 343, 55 S. W. 378; Merrell v. Kenney, 45 S. W. 423. The jury by their 
verdict did not locate the boundary line between the surveys claimed by the respective parties, and it was 
error for the court to do so by its judgment.
        Complaint is made that the verdict and judgment are contrary to and not supported by the evidence. 
We think the evidence does not justify the verdict, or warrant the judgment. The appellee's claim is to 
land lying in the Patton or Rich survey, and the appellant's claim is to 54½ acres lying just to the north of 
the Patton or Rich survey. The north line of the Patton or Rich survey is not found, nor identified by 
establishing marks, but governed by the original field notes as surveyed, and thus located by the original 
field notes it is at least 30 varas south of the south line of the 54½-acre tract claimed by appellant, and is 
about 380 varas south of the Joel Clapp survey, which lies north of the Patton survey. As we view the 
evidence, the southwest corner of the Patton or Rich survey is the northwest corner of the Hunt survey, 
which corner is plainly marked and identified by bearing trees; and, there being no marks or monuments 
on the north line of the Patton survey, nor anything more than course and distance to govern the true 
line, it must be fixed and determined by course and distance from the said northwest corner of the Hunt 
survey of 640 acres. The 54½ acres being tied to the Clapp survey on the north and to the Patton or Rich 
survey on the south, the distance being 350 varas from north to south, the location of the boundary line in 
dispute is hereby located and fixed at a point 1,230 varas from the northwest corner of said Hunt 640-
acre survey, and at a point 350 varas from the Joel Clapp survey; said line to run east and west and to 
constitute the south line of the 54½-acre survey and the north line of Patton or Rich survey as between 
the said two tracts.
        The judgment is reversed, and judgment here rendered for appellant.