BONNER ▼. FREEDMAN et al.1 (Court
of Civil Appeals of Texas. May 21, 1898.)
Appeal from district court, Navarro county;
L. B. Cobb, Judge. Trespass to try title by R.
Freedman & Co. and others against J. I. Bon-
ner. Defendant joined Mrs. E. P. Huckaby
as a party. From a judgment for plaintiffs,
defendant Bonner appeals. Affirmed. J. M.
Blanding and Callicutt & Call, for appellant.
Simkins & Mays, for appellees.

FINLEY, C. J. This suit was instituted in
form of trespass to try title, and involves about
342 acres of land,-a strip of land 1,444 varas
long and 135 varas wide. It is in fact a con-
troversy over boundaries between owners of
adjoining surveys. The plaintiffs claim that
the land is embraced within the Dunnagan sur-
vey, while the defendant Bonner claims that it
is located in the Little Wilson Reed survey.
The defendant also claims by limitation of 10
years, and further sets up claim for valuable
improvements made in good faith. The defend-
ant Bonner joined Mrs. E. P. Huckaby in the
suit, claiming that he and she formerly held
lands in common, and that in partitioning their
lands the Little Wilson Reed tract of 411 acres,
supposed to include the land in controversy,
was allotted to him at the valuation of $10
per acre. He prayed, in case a recovery was
had against him, that he recover over against
Mrs. Huckaby. Plaintiffs, by the verdict of
the jury, recovered all the land, except about
8 acres, which was awarded to Bonner under
his plea of limitations. Bonner was given $225
for his improvements, and this amount was off-
set by a recovery of the same sum by plaintiffs
on account of use and occupation. All the land
was found to be in the Dunnagan survey, and
no recovery was given against Mrs. Huckaby
in favor of Bonner. From the judgment en-
tered upon this verdict, Bonner has appealed.
This is the second appeal in this case. Our de-
cision upon the former appeal will be found re-
ported in 40 S. W. 47. The issues involved upon
the trial were these: (1) Is the land in controver-
sy embraced in the G. W. Dunnagan survey?
This issue involves the true location of the
south line of the Little Wilson Reed survey,
and the north line of the G. W. Dunnagan sur-
vey. (2) Appellant's claim of limitation by vir-
tue of ten years' adverse possession. (3) Ap-
pellant's right to a recovery over against Mrs.
Huckaby. The assignments of error presented
and insisted upon are quite numerous, and we
deem it impracticable to undertake to discuss
them. We have considered them all carefully,
and have reached the conclusion that no rever-
sible error was committed upon the trial. The
evidence justifies these conclusions of fact: (1)
The land sued for is embraced in the Dunna-
gan survey, and is not in the Little Wilson
Reed survey. (2) The appellant and those un-
der whom he claims had 10 years' exclusive,
adverse possession, next before the institution
of this suit, of only that portion of the tract
awarded to him by the verdict and judgment.
(3) The evidence fairly showed that the amount
to which the defendant was entitled for im-
1 Writ of error dismissed for want of jurisdic-
tion.

provements in good faith did not exceed the
sum which plaintiffs were entitled to recover
for use and occupation, and the jury properly
set off one with the other. (4) The evidence
does not show that, in the judicial partition of
the lands between appellant, Bonner, and Mrs.
Huckaby, the commissioners based their action
in the partition upon the erroneous assumption
that the land here sued for was in the Little
Wilson Reed survey, set apart to Bonner. The
commissioners were told that there was a little
more than 400 acres in the tract. They did not
attempt to make a full and accurate survey
of it. The surveyor, who was one of the com-
missioners, at the time they were making the
partition told Bonner that he had about 40
acres of the Freedman land in his pasture, and
Bonner told him he would hold it by limitation.
It does not appear that the partition was in-
equitable and unjust by reason of the Little
Wilson Reed survey not embracing this land;
and it does not appear that the commissioners
would have made any different division, had
they known that this land was not within said
survey. It is fairly shown that they estimated
the tract to contain about 411 acres, while in
fact it contains a little less than 400 acres; but
it is not shown that the exact number of acres
controlled in the estimation of value placed up-
on the tract by them. Under these conditions,
appellant was not entitled to a recovery against
Mrs. Huckaby. We think the jury reached a
just and proper verdict in the case, and we
find no error committed upon the trial which
we think should cause a reversal of the judg-
ment. Judgment affirmed.

DENISON & P. SUBURBAN RY. CO. v.
PASTORA. (Court of Civil Appeals of Tex-
as. May 14, 1898.) Appeal from district
court, Grayson county; D. A. Bliss, Judge.
Action by Rock Pastora against the Denison
& Pacific Suburban Railway Company. From
a judgment for plaintiff, defendant appeals.
Affirmed. T. J. Freeman, for appellant. Head,
Dillard & Muse, for appellee.

RAINEY, J. Appellee sued appellant rail-
way company to recover damages alleged to
have been caused to the land described in plain-
tiff's petition by the construction of defend-
ant's railroad adjacent thereto. The evidence
shows that the plaintiff owned the property.
and that defendant's railroad was constructed
on Travis avenue, within 125 feet of plaintiff's
property, on which was situated three houses.
Along and next to said property the embank-
ment on Travis avenue is 18 or 20 feet high;
and said embankment is so high and wide that
the passage from and to plaintiff's property is
entirely cut off, and it cannot be reached ex-
cept by passing over private property. Said
property was damaged to the extent of the
amount found by the verdict of the jury. There
are several assignments of error presented,
but none we consider of any special merit, and
therefore deem it unnecessary to discuss same.
We find no error in the rulings of the court.
The judgment is supported by the evidence, and
the same is therefore affirmed.

1 Writ of error denied by supreme court.

ABATEMENT AND REVIVAL.

Judgment as bar to another action, see "Judg-
ment," § 5.

Right of action by or against personal repre-
sentative, see "Executors and Administra-
tors," & 7.

Substitution of parties, see "Parties," § 2.

ABUTTING OWNERS.

Compensation for taking of or injury to lands
or easements for public use, see "Eminent Do-
main," § 2.

ACCIDENT.

Cause of death, see "Death," § 1.

of personal injuries, see "Negligence," § 1.

ACCOMMODATION PAPER.

See "Bills and Notes."

ACCOMPLICES.

Testimony, see "Criminal Law," § 5.

ACCORD AND SATISFACTION.

See "Compromise and Settlement"; "Payment."

ACCOUNT.

Accounting between partners, see "Partner-
ship," § 5.

by assignee for benefit of creditors, see "As-
signments for Benefit of Creditors," § 3.

by executor or administrator, see "Execu-
tors and Administrators," § 8.

by guardian of infant, see "Guardian and
Ward," § 5.

by receiver, see "Receivers," § 5.

ACKNOWLEDGMENT.

1. Operation and effect.

A de facto female notary public is compe-
tent to take acknowledgments.-Third Nat.
Bank of Chattanooga v. Smith (Tenn. Ch.
App.) 1102.

ACTION.

Bar by former adjudication, see "Judgment,"
§ 5.

Counterclaim, see "Set-Off and Counterclaim."
Jurisdiction of courts, see "Courts."
Laches, see "Equity," § 2.

Limitation by statute, see "Limitation of Ac-
tions."

Set-off, see "Set-Off and Counterclaim."
Actions by or against particular classes of
parties.

See "Carriers," $§ 2-4: "Counties," § 5; "Exec-
utors and Administrators," § 7; "Husband
and Wife." § 4; "Infants," § 1; "Municipal
Corporations," § 11; "Receivers," § 4.

Breach of contract, see "Sales," § 4.

of covenant, see "Covenants."
of warranty, see "Sales," § 4.
Price of land, see "Vendor and Purchaser," § 6.
Recovery of land sold by vendor, see "Vendor
and Purchaser," § 6.

of price paid for land, see "Vendor and
Purchaser," § 7.

Wrongful execution, see "Execution," § 5.

Particular forms of action.

See "Ejectment"; "Replevin"; "Trespass";
"Trespass to Try Title"; "Trover and Conver-
sion."

Particular forms of special relief.
See "Creditors' Suit"; "Divorce"; "Injunction."
Cancellation of written instrument, see "Cancel-
lation of Instruments."

Enforcement or foreclosure of lien, see "Mar-
itime Liens," § 2; "Mechanics' Liens," § 4.
Establishment of boundaries, see "Boundaries,"
§ 2.

of will, see "Wills," § 3.

Foreclosure of mortgage, see "Mortgages," § 5.
Reformation of written instrument, see "Ref-
ormation of Instruments."

Setting aside fraudulent conveyance, see "Fraud-
ulent Conveyances," § 3.

will, see "Wills," § 3.

Particular proceedings in actions.
See "Appearance"; "Continuance"; "Costs";
"Damages"; "Evidence"; "Execution"; "Judg-
ment"; "Judicial Sales"; "Jury"; "Limitation
of Actions"; "Parties"; "Pleading"; "Pro-
cess"; "Reference"; "Removal of Causes";
"Stipulations"; "Trial"; "Venue."

Verdict, see "Trial," § 7.

Particular remedies in or incident to actions.

See "Attachment"; "Deposits in Court"; "Gar-
nishment"; "Injunction"; "Receivers"; "Re-
cognizances."

Proceedings in exercise of special jurisdictions.
Suits in admiralty, see "Maritime Liens," § 2.
in equity, see "Equity."

Review of proceedings.
See "Appeal and Error"; "Certiorari"; "Excep
tions, Bill of"; "Judgment," § 3; "Justices of
the Peace," § 1; "New Trial."

§ 1. Joinder, splitting, consolidation,

and severance.

An action by M. for rent, and one by M. and
his partner against the same defendant for
merchandise, cannot be consolidated.--Meehan
v. Watson (Ark.) 109.

Misjoinder of causes of action is waived by
failure to require plaintiff to elect.-Pepper's
Adm'x v. Harper (Ky.) 620.

Actions on note and to foreclose collateral
vendor's lien notes held properly joined.-San-
derson v. Railey (Tex. Civ. App.) 667.

ACTION ON THE CASE.

See "Trespass."

ADJOINING LANDOWNERS.

ADJUDICATION.

ADMINISTRATION.

Of estate of decedent, see "Executors and Ad-
ministrators."

Of property by receiver, see "Receivers," § 3.
Of trust property, see "Trusts," § 2.

ADMIRALTY.

See "Maritime Liens."

ADMISSIONS.

As evidence in criminal prosecutions, see "Crim-
inal Law," § 5.

ADVANCES.

By landlord to tenant, see "Landlord and Ten-
ant," § 4.

ADVERSE POSSESSION.

See, also, "Limitation of Actions."
§ 1. Nature and requisites.

One is in "lawful possession" of property, so
as to be able to rely on 30 years' nonpossession
and nonpayment of taxes by plaintiff as a bar
(Rev. St. 1889, § 6770), where he has entered
in good faith, claiming to be the owner.-Col-
lins v. Pease (Mo.) 925.

Where land was sold for taxes in a certain
county, a deed delivered by the proper officer
of such county was color of title, though at
the time of delivery the land had become a part
of another county.-Hubbard v. Godfrey (Tenn.
Sup.) 81.

Const. Amend. Sched. § 4, suspending the
statute of limitations, does not apply to one
whose title had vested by adverse possession
before the provision was adopted, since the
people of a state cannot, by amending their con-
stitution, do anything the state is prohibited
from doing by the federal constitution.-Ten-
nessee Coal, Iron & R. Co. v. McDowell (Tenn.
Sup.) 153.

Pasch. Dig. arts. 4631, 4631a, Const. 1869,
art. 12, § 43, and Rev. St. 1895, art. 3366, do
not tack adverse possessions interrupted_by
Civil War.-Collier v. Couts (Tex. Sup.) 525.
Possession under deed reserving lien is not
adverse to vendor.-Shotwell v. McCardell
(Tex. Civ. App.) 39.

Request for instruction as to adverse posses-
sion held properly refused.-Cox v. Sherman
Hotel Co. (Tex. Civ. App.) 808.

Under Rev. St. 1895, arts. 3343, 3348, 3349,
adverse holders need not claim to own land,
during possession.-Cox v. Sherman Hotel Co.
(Tex. Civ. App.) 808.

A defendant held to have acquired title under
the five-years statute.-Alley v. Bailey (Tex.
Civ. App.) 821.

Exceptions to a statute in a clause separate
from that creating the liability need not be
negatived by the plaintiff in his petition.-
Bush v. Wathen (Ky.) 599.

An election is void where the petition was to
determine whether "hogs, sheep, and goats."
should be restrained, and the order of court
read "hogs, sheep, or goats." McElroy v.
State (Tex. Cr. App.) 359.

-

Acts 25th Leg. p. 112, making it a crime to
permit stock to run at large in local option
territory, is invalid as to counties which have
already adopted the local option stock law
without a penalty attached.-McElroy v. State
(Tex. Cr. App.) 359.

ANNULMENT.

Of will, see "Wills," § 3.

ANSWER.

In pleading, see "Pleading," § 2.

APPEAL AND ERROR.

See, also, "Certiorari"; "Exceptions, Bill of";
"New Trial."
Costs, see "Costs," § 5.

Review in special proceedings.
Probate proceedings, see "Wills," § 3.

Review of criminal prosecutions.
See "Criminal Law," § 10; "Homicide," § 9.
Review of proceedings of justices of the peace.
See "Justices of the Peace," § 1.

§ 1. Nature and form of remedy.
Where parties have tried cases as consolidat-
ed, and the decree is responsive to the plead-
ings as taken together, it will on appeal be