Giltner v. Waters

Opinion.— The contest in the court below was as to the true boundary line between adjoining surveys. The appellees, who own the north half of the Goodloe survey, claim that the north boundary line of the same is something over two hundred varas further to the north than is claimed by appellants, who own portions of the Richardson, Ray and Good surveys, which adjoin the Goodloe on the north. The Goodloe tract was surveyed December 5, 1839, the Richardson and Ray tracts were surveyed May 18, 1850, and the Good, May 30, 1850. Appellees claim that the surveyor, .in making the three last mentioned surveys, encroached upon the Goodloe something over two hundred varas, while the appellants assert that the south boundary line of said surveys, as made and marked upon the ground in 1850, was the true boundary of the Goodloe survey. The appellants rely for a reversal of the judgment mainly upon the proposition that the verdict is contrary to the evidence. The peculiar and exclusive duty and province of the jury, assigned to and imposed upon them by law, is to ascertain, and determine all questions of fact. And if, in the discharge of that duty, their determination is founded upon legitimate and competent evidence, the court would not be justified in interfering with and setting aside the verdict. Gibson v. Hill, 27 Tex., 241; Briscoe v. Bronaugh, 1 Tex., 340; Chandler v. Meckling, 22 Tex., 42; Ables v. Donley, 8 Tex., 336; Wells v. Barnett, 7 Tex., 587. It has been frequently held that in order to justify the appellate court in setting aside the verdict of a jury, it is not sufficient that it does not appear clearly to be right, but it must appear to be clearly wrong. Tuttle v. Turner, 28 Tex., 757; Stroud v. Springfield, 28 Tex., 676; Stewart v. Hamilton, 19 Tex., 101. [516] Again in the case of Tarkington v. Broussard, 51 Tex., 553, it was held, in effect, that where the testimony was conflicting, the verdict will not be disturbed by the court, unless the preponderance of the evidence against the correctness of the same is so great as to authorize the court to declare it clearly wrong. These are not simply technical rules of practice prescribed for convenience, and which may be disregarded at the pleasure of the court, but, on the contrary, are principles lying at the foundation of our judicial system, in which the court decides the law and the jury determines the fact, and each, in its own sphere, being independent of the other. The court would no more be justified in an invasion of the province of the jury in attempting to decide upon the credibility of witnesses, and the weight to be attached to their testimony, than would the jury in assuming to decide what principles of law should be applied in any particular case. In case of conflicting evidence it is the province of the court to consider and determine whether or not the verdict is sustained by the evidence. If the line of the Goodloe was where it is claimed to be by appellants, then they would, independent of any limitation, own the strip in controversy; while, if the land is as claimed by appellees and determined by the jury, both parties being in possession of their respective surveys, the appellants could not avail themselves of limitation as to the land in controversy, except to the extent they had it inclosed. Angelí on Limitations, sec. 384. Judgment amtrmed.