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418 S.W.2d 884

Miller v. Fitzpatrick

Court of Appeals of Texas

Decided July 13, 1967

Court of Appeals of Texas · decided 1967-07-13

Good law ✅— No negative treatment on recordhow we know

Decided 1967-07-13

How this case has been cited

Cited by 5 later decisions — most recently September 1988

5 state decisions

30196719701980decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1OPINION ON MOTION FOR REHEARING

¶2Appellant has taken exception to the statement in our original opinion that the trial court excluded the evidence of the witness Mills that at the time he and his wife sold Lot 2 to appellant, they showed the Millers the lot and stated that the property line extended to the brush. Appellant Miller’s testimony to the above effect on direct examination was excluded on ap-pellee’s objection, and is contained in the statement of facts only on bill of exception. Testimony of Miller given on cross-examination concerning any pointing out of property lines, when considered without reference to the stricken evidence, is indefinite as to the location of the eastern boundary.

¶3There do not appear to be any objections to the evidence given by deposition by the witness Mills that he pointed out the brush line to appellant as the eastern boundary of Lot 2. Our statement that all evidence of such pointing out of boundaries was excluded was based on the exclusion of such evidence when subsequently offered by testimony of the appellant, combined with the statement of the trial court in his eleventh conclusion of law that the statements made by Mrs. Christiansen to Mills, and by Mills to Miller as to the location on the ground of the boundary of the tracts conveyed were inadmissible, making immaterial and academic whether or not Mills or appellant relied on such statements.

¶4However, for the reasons stated in our original opinion, considering such evidence of pointing out by Mills to Miller of the property lines to have been admissible and properly before the trial court, it is our view, and we so hold, that the record does not show such a transfer of Mills’ claim of possession, if any, to appellant as to permit such possession of Mills to be tacked to appellant’s possession, if any, so as to constitute a ten year period of possession adverse and hostile to the record owner of the property.

¶5We have carefully reviewed all of the points raised in appellant’s motion, and remain of the opinion that the judgment should be affirmed.

¶6Motion for Rehearing Overruled.

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