                                  NO. 12-12-00380-CV

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

HARRY D. SCATES, JR. AND WIFE,                   §     APPEAL FROM THE 273RD
MANDY SCATES,
APPELLANTS

V.                                               §     JUDICIAL DISTRICT COURT

FORREST E. CRAWFORD AND WIFE,
SHERRY L. CRAWFORD,
APPELLEES                      §  SHELBY COUNTY, TEXAS
                      MEMORANDUM OPINION
        Harry D. Scates, Jr. and Mandy Scates appeal from an adverse judgment rendered by the
trial court in a suit brought by Forrest E. Crawford and Sherry L. Crawford to determine the
location of the common boundary line between their neighboring tracts of land. In three issues,
the Scateses contend the judgment was improper, is not supported by sufficient evidence, and is
erroneous because the trial court inappropriately applied the apportionment rule. We affirm.


                                         BACKGROUND
        In 1941, the owners of 190 acres known as the J.M. Williams homestead tract partitioned
the property. They divided it into seven tracts or “blocks” varying in size from thirty-one acres
to thirty-five acres. Added together, the total amount of acreage purportedly divided among the
seven blocks was 235 acres. Each block was specifically described by separate field notes.
        In 1997, the Scateses bought Block 6, which, according to a recital in the deed, contains
thirty-three and one-third acres. Directly north, and sharing a boundary with Block 6, is Block 5,
which the Crawfords bought in 2008. The 1941 partition deed attributed thirty-one acres to
Block 5. However, a 1974 survey revealed that Block 5 contains 24.08 acres–the amount recited
in the Crawfords’ deed. Block 7 is directly south of Block 6, and the two tracts share a boundary
line.
       After the Crawfords purchased the property, a question arose as to the location of the
boundary line between Block 5 and Block 6. The Crawfords filed suit against the Scateses
requesting a declaratory judgment “concerning the proper ownership and boundary lines” and to
“declare proper title to the approximately seven (7) acres of land of which ownership is
disputed.”   They also alleged causes of action to quiet title and for trespass to try title.
Additionally, they asserted causes of action for breach of contract, breach of the duty of good
faith and fair dealing, and declaratory judgment against Lawyers Title Insurance Corporation.
They later nonsuited Lawyers Title Insurance Corporation.
       The Crawfords hired Mark Birdwell to survey the property because of uncertainty about
the location of the boundary line between Block 5 and Block 6. A fence crosses from the east
boundary to the west boundary, and the Scateses claim this fence marks their north boundary
line. The Crawfords contend that their south boundary line is south of that fence. Birdwell
testified that Block 6 was originally supposed to be about 33.5 acres. Birdwell determined that
the properties “matched up” on paper, that is, when looking at the deed descriptions, but the two
tracts of land overlap on the ground by 6.702 acres. The Scateses also hired a surveyor, Jeff
Opperman, who determined that there was no overlap. However, he asserted that Block 6
contains only 24.56 acres.
       In its findings of fact, the trial court found that the original surveys for Block 5 and Block
6 overlap each other for a total of 6.702 acres. It further found that the original surveys called
for the south boundary line of Block 5 and the north boundary line of Block 6 to be a post oak
marked with an X. Additionally, the court found that the post oak is missing and could not be
located in subsequent surveys. The court found that it was the intent of the original surveyor and
the owners of the J.M. Williams homestead that the Crawfords’ predecessors in title should be
conveyed 31 acres and the Scateses’ predecessors in title should be conveyed 33.5 acres. The
trial court set the common boundary line between Block 5 and Block 6 as a perpendicular line
“from the east and west boundary lines of the overlapping acreage, which would provide for
31/64.5 of the overlapping acres north of the boundary line and 33.5/64.5 of the 6.702
overlapping acres south of the boundary line.” The court further ordered that title is vested in the
Crawfords as to the northern 31/64.5 of the overlapping acres, or 3.221 acres, and title is vested
in the Scateses in the southern 33.5/64.5 of the 6.702 overlapping acres, or 3.481 acres.




                                                 2
Additionally, the court ordered Birdwell to survey the property to locate the court-ordered
boundary line.


                                        BOUNDARY DISPUTE
       The Scateses raise three issues. They assert the trial court’s judgment failed to conform
to the pleadings, the nature of the case proved, and the findings of fact returned by the trial court.
They argue that the Crawfords failed to meet their burden of proof. They contend the evidence is
legally and factually insufficient to support the trial court’s finding that an overlap of 6.702 acres
exists. They argue that the original surveyor could have mislocated the north boundary line of
Block 5. They further argue that the trial court should have disregarded the calls for distance in
the Crawfords’ deed because failing to disregard those calls resulted in the overlap. Finally, the
Scateses assert that the apportionment rule is inapplicable to this case and the trial court erred in
its manner of applying the apportionment rule.
Standard of Review
       When a party is attacking the legal sufficiency of the evidence supporting a finding on an
issue for which he did not have the burden of proof, he must show that no evidence supports the
finding. Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 215 (Tex. 2011). Evidence
is legally sufficient if it would enable reasonable and fair-minded people to reach the verdict
under review. Id. We credit favorable evidence if reasonable jurors could, and disregard
contrary evidence unless reasonable jurors could not. Id.
       If a party is attacking the factual sufficiency of the evidence to support an adverse finding
on an issue on which the other party had the burden of proof, the attacking party must
demonstrate that there is insufficient evidence to support the adverse finding. Capps v. Nexion
Health at Southwood, Inc., 349 S.W.3d 849, 855 (Tex. App.–Tyler 2011, no pet). The verdict
should be set aside only if it is so contrary to the overwhelming weight of the evidence as to be
clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam). The
reviewing court may not substitute its opinion for that of the trier of fact, as it is the factfinder’s
role to judge the credibility of witnesses, to assign the weight afforded their testimony, and to
resolve inconsistencies within or conflicts among the witnesses’ testimony.            Golden Eagle
Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003); Ford v. Panhandle & Santa Fe Ry.
Co., 252 S.W.2d 561, 563 (Tex. 1952).



                                                  3
Applicable Law
        A person interested under a deed may obtain a determination under the Declaratory
Judgments Act when the sole issue concerning title to real property is the determination of the
proper boundary line between adjoining properties.           TEX. CIV. PRAC. & REM. CODE ANN.
§ 37.004(c) (West 2008). In adding this amendment, the legislature intended the proof elements
required in boundary disputes to remain the same. H.J. of Tex., 80th Leg., R.S. 2032-33 (2007).
When there is a dispute involving the boundary line between two adjacent tracts, it is the
plaintiff’s burden to locate the true boundary line on the ground. See Brown v. Eubank, 378
S.W.2d 707, 711 (Tex. Civ. App.–Tyler 1964, writ ref’d n.r.e.).
        The question of where boundaries are on the ground is a question of fact to be determined
from the evidence. Silver Oil & Gas, Inc. v. EOG Res., Inc., 246 S.W.3d 197, 202-03 (Tex.
App.–San Antonio 2007, no pet.). This is equally true where the dispute involves two competing
surveys, each purportedly showing the same line in different locations. Id. at 203. When finding
the lines of a survey, the cardinal rule is that the footsteps of the original surveyor, if they can be
ascertained, should be followed. Id. at 204. If the actual lines and corners run by the original
surveyor can be found, they are controlling, even if they are inconsistent with the calls and
references in that surveyor’s field notes. Id. When one can locate on the ground with certainty
and without inconsistency the objects or monuments designated by the original surveyor as
marking the lines he actually traced, the survey must be laid out from those points.                Id.
However, if the location of the actual footsteps of the surveyor cannot be established with
reasonable certainty, all the surrounding facts and circumstances should be considered in order to
arrive at the purpose and intent of the surveyor who made the original survey. Id. When trying
to reestablish a boundary, the law of legal preferences gives dignity to calls in the following
order: (1) natural objects, (2) artificial objects, (3) course, and (4) distance. Id.
        Where a tract of land is subdivided and is subsequently found to contain either more or
less than the aggregate amount called for in the surveys of the tracts within it, the proper course
is to apportion the excess or deficiency among the several tracts. Humble Oil & Refining Co. v.
Manziel, 187 S.W.2d 149, 152 (Tex. Civ. App.–Texarkana 1945, writ ref’d w.o.m.). Where a
length of a line of the same survey varies from the length called for, it is presumed, in the
absence of circumstances showing the contrary, that the variance arose from imperfect
measurement of the whole line, and the variance must be distributed between the several



                                                   4
subdivisions of the line in proportion to their respective lengths. Id. Thus, where an old survey
is being retraced, excesses over course and distance calls between original monuments on the
ground must be prorated among the various sections within a given block or system of surveys.
Carmichall v. Stanolind Oil & Gas Co, 256 S.W.2d 129, 132 (Tex. Civ. App.–Amarillo 1952,
writ ref’d).
Sufficiency of the Evidence
        The J.M. Williams homestead tract contained 160 acres out of the J.T. Covington Survey
and thirty acres out of the A. Fultz Survey. It is undisputed that the parties to the original
partition deeds attempted to allocate more acreage than they had available to partition. The
original 190 acres were divided into seven tracts with Blocks 5, 6, and 7 lying to the east of a
road, and the other four blocks to the west of the road. The east-west calls in the deeds call for
the western corners to be at a point in the Jericho Road. That road is now a farm to market road
and has changed in size since the partition. Opperman testified that the distances east and west
on both the Scateses’ and the Crawfords’ tracts were at variance with the original partition deed
call and those lines are about 200 feet short. Both sides agree on the location of the southeast and
southwest corners of the original Covington Survey, as well as the Scateses’ southeast and
southwest corners. Opperman testified that he found the southwest witness tree for the Scateses’
tract on the farm to market road and he set the southeast corner by distances and bearings.
        Both Opperman and Birdwell testified as to having found the Crawfords’ northwest and
northeast corners. Birdwell testified that the joinders on the Crawfords’ north line coincided
with deed references and a prior survey of the tract to the north. Although they did not say they
found the original monuments, neither side presented any evidence suggesting that the
Crawfords’ north boundary line is not in the location originally intended by the surveyor and
parties to the 1941 partition deeds. Thus, the trial court was justified in believing the Crawfords’
north line was properly located. Accordingly, the evidence shows the location of the east and
west boundary lines of both the Crawfords’ tract and the Scateses’ tract, as well as Block 7,
going from the northern line of the Crawfords’ property to the southern line of Block 7, the entire
length of the 190 acre tract.
        Opperman testified that the northern boundary line of Block 7 “is within a couple of feet
of deed calls where it should be.” When the Scateses’ tract was located with reference to the
southern corners of the original partition, its northern boundary as claimed by the Scateses was



                                                 5
consistent with the calls in the deeds. Opperman testified that he found the Scateses’ northeast
and northwest corners, each marked by a half-inch iron rod. There is also a fence on what the
Scateses claim is their north line. The iron rods Opperman referred to at each corner are near the
fence. However, it is undisputed that the original partition deeds called for witness trees, and
stakes, not iron rods, at these corners. Opperman testified that a stake and a half-inch iron rod
could be the same thing. The witness trees were not found. Birdwell testified that the iron rods
were not the original monuments. No evidence was introduced proving who placed those iron
rods, or when, or why. Neither is there any evidence as to the origin of the fence at that location.
It was for the trial court to resolve this conflict. See Ford, 252 S.W.2d at 563. Birdwell testified
that, when measuring from the Crawfords’ north line, their southern boundary lies south of the
line that the Scateses claim is their northern boundary and that the two tracts overlap by 6.702
acres.
         The trial court determined that the original monuments marking the Scateses’ north line
could not be located. Opperman applied the Scateses’ deed calls to find those corners. There is
no authority for the Scateses’ argument that the trial court should rely on the Scateses’ deed calls
yet disregard the Crawfords’ deed calls. See Great Plains Oil & Gas Co. v. Found. Oil Co., 153
S.W.2d 452, 455 (Tex. 1941) (held that, rather than constructing one block out of partition by its
known corners, court must apportion the excess among the several blocks). Likewise, the fact
that Blocks 5 and 6 have common corners does not lead to the conclusion that the Crawfords’
south line is where the Scateses claim it to be or that the court should not have created a new
line. There is legally and factually sufficient evidence to support the trial court’s finding that an
overlap exists. See Exxon Corp., 348 S.W.3d at 215; Capps, 349 S.W.3d at 855.
Remedy
         To meet their burden to locate the true boundary line, the Crawfords had to provide
sufficient evidence for the trial court to “arrive at the purpose and intent of the surveyor who
made the original survey.” Silver Oil & Gas, Inc., 246 S.W.3d at 204. When the evidence
shows that a tract of land contains less than the amount called for, it is appropriate for the court
to apportion the deficiency. Manziel, 187 S.W.2d at 152. Based on this information, together
with the acreage listed in each deed, the court could determine how best to achieve the intentions
of the parties to the original partition deed. See Great Plains Oil & Gas Co., 153 S.W.2d at 455-
56 (The “intention of the parties is substantially and almost exactly fulfilled when the location of



                                                 6
the boundary lines between the blocks is determined by prorating the excess among the blocks
according to their respective widths as called for in their field notes.”); Manziel, 187 S.W.2d at
152.
       The original surveyor and parties to the partition intended for the seven blocks to contain
the full amount of the available acreage. They were simply mistaken as to how much acreage
they could include in each block. The error arose when the original surveyor attempted to divide
190 acres into seven tracts containing a total of 235 acres. The recitations in the deeds as to the
number of acres the original parties intended to attribute to each tract, while not accurate, is
evidence of how they wanted to split the property. Further, Blocks 5, 6, and 7 lost land along the
west boundary due to the expansion of the road, and the loss would be the same for each tract.
Block 5, which was supposed to contain thirty-one acres, contains 24.08 acres. Block 6, which
was supposed to contain thirty-one and one-third acres, contains 24.56 acres. Birdwell testified
that Block 7, the tract south of the Scateses’ property, is the one that is farthest south within the
east side of the Covington Survey, and was also short on acreage. It contains 22.4 acres although
it was supposed to contain thirty-three and one-third acres.
       The evidence shows the locations of the corners of the original 190 acre tract. Where a
corner is found, it influences the surveys in the block, even if the effect is to lengthen or shorten
the distance called for in the other sections. See Strayhorn v. Jones, 289 S.W.2d 321, 327 (Tex.
Civ. App.–Amarillo 1956), aff’d, 300 S.W.2d 623 (Tex. 1957).              “The surveyor or courts
distribute the excess or loss proportionately to all other sections in the block up to the mark so
established.” Id. Because the Scateses’ south line was located and the Crawfords’ north line was
located, the deficiency should be distributed proportionately between the two blocks. The intent
of the partitioners was to partition the tract into seven blocks, each having a certain number of
acres. By using the fractional equation to represent the division of the original 190 acre tract, the
trial court appropriately applied the apportionment rule to set the common boundary line
between the Scates and Crawford tracts. See Great Plains Oil & Gas Co., 153 S.W.2d at 455-
56. Because this is not a suit for partition, but one for the determination of the true location of
the boundary line between Blocks 5 and 6, and the trial court’s judgment will not affect those
who own interests in the other blocks, the deficiency should not be apportioned among all tracts
in the partition as argued by the Scateses. Id. at 457. Further, it is within the trial court’s
authority to appoint a surveyor to provide the definitive location of the boundary line and to



                                                 7
clarify the judgment. See Guerra v. Perez & Assocs., 885 S.W.2d 531, 533 (Tex. App.–El Paso
1994, no writ).
         The Crawfords sought a determination of the location of their south boundary line.
Pursuant to the Declaratory Judgments Act, the court determined that there is an overlap and
decided where the boundary line should be.                      See TEX. CIV. PRAC. & REM. CODE ANN.
§ 37.004(c). The judgment is consistent with the pleadings, the nature of the case, and the
court’s findings of fact.
         It was not necessary for the Crawfords to ask for reformation of the deeds. The trial
court’s judgment, definitively establishing the location of the line in dispute, has the effect of
reforming the deeds. See Craft v. Hahn, 246 S.W.2d 897, 900 (Tex. Civ. App.–Eastland 1952,
no writ). Additionally, the judgment finally vests rights as between the parties. See McWilliams
v. McWilliams, 531 S.W.2d 392, 393-94 (Tex. App.–Houston [14th Dist.] 1975, no writ).


                                                   CONCLUSION

         The evidence is sufficient to support the trial court’s finding that Blocks 5 and 6 overlap.
The trial court appropriately applied the apportionment rule and properly determined the location
of the boundary line separating Blocks 5 and 6. We overrule the Scateses’ three issues.
         We affirm the trial court’s judgment.


                                                                        BRIAN HOYLE
                                                                            Justice
Opinion delivered March 31, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)




                                                           8
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                            MARCH 31, 2014


                                          NO. 12-12-00380-CV


                  HARRY D. SCATES, JR. AND WIFE, MANDY SCATES,
                                    Appellants
                                        V.
                       FORREST E. CRAWFORD AND WIFE,
                             SHERRY L. CRAWFORD
                                     Appellees


                                 Appeal from the 273rd District Court
                         of Shelby County, Texas (Tr.Ct.No. 09CV30,545)


                    THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.

                    It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the appellants, HARRY D. SCATES, JR. AND WIFE, MANDY SCATES, for which
execution may issue, and that this decision be certified to the court below for observance.

                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
