The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-06-19
THE HIGHER COURTS.
SUPREME oouRr.

c.j. In testing the constitutionality
OF Art. 1876, Revised Statutes, all points
thereof must be construed in connec.
ton, and thus construed, railroads are
made liable for damages unless their
road is fenced; in that case they are
only liable in the event of the want OF
ordinay care. The Legislature has the
right to declare what should be q
prima facie case against railroads and
what reasonable facts should amount
to defense, by which it could be re-
butted. The object and purpose of the
statute was to compel them to fence
their tracks, to prevent damage to live
stock, and to protect the lives and
limbs OF passengers on their trains. II
Is, therefore, an exercise of police
power and will be upheld. The above
article Is constitutional, and when 8
railroad has not fenced its road 1t is no
answer to suit against them for kill.
ing or injuring live stock that the
damages occurred without any negli.
genee on its part. Plaintiff is not re.
quired to prove that the road was moi
| fenced, but in the event no such proof
| is offered, the court cannot take Judi.
cial cognizance of the Affirmative OF
such fact, but may presume the mega.
tive thereof. The burden OF proving
that the road was fenced is on the rail.
road. Affirmed.
r. ID. Moore, executor, ct al. VS.. L.
Mague ct. al, from Falls County; STAY.
tonj. Where the order Of the probate
| court recognizes j ii .as the administra.
tor Of the estate of III. III. and directs the
land mentioned In his petition to be
sold, and the returns of the sale show
that the trust granted to II. IL the true
boundary of which is involved in this
suit, and the order OF confirmation
shows that the sale was confirmed and
the administrator directed to make 8
deed to the purchaser, which he sub.
sequently did. Held: These facts
show that the title to the particular
land passed to the purchaser at the
sale thus made, and appellee deraign.
Ing title from that purchaser must be-
held to be the true owner OF the land
by him claimed, unless it be in con.
flict with the land held by appellants
under an older grant. All presump
tons are to be INDUCED in this collat
eral action, in favor of the proceedings
in the Probate Court and of its juris
diction to order and confirm the sale Of
the land. With the evidence before
the jury, the charge Of the court, taken
as whole, fairly submitted to the jury
the questions involved, though de-
tached parts Of the charge, If consider.
ed without reference to the residue
would not have been correct. Plaintiffs
HAVING shown title to the lands de.
scribed in the Holman patent and
identified the same, the court correctly
instructed the jury that the burden Of
proving that the land was covered by
the Lena Moore grant was upon de
fandants. Affirmed.
X. NJ. Cox vs.. A. j, Blankenship
from Milan County; Watts, j. Adopt.
ed This is a controversy as TO the
true location on the ground of the
northeast corner and north boundary
line of the Samuel Moore grant for a
u league of land ON the north bank of
Little River. There is no conflict OF
title between the parties. Appellee
owns the Moore grant and appellant
500 acres OF the De Pima Ii league
grant. There Is no assignment OF err
ror questioning t sufticiency of the
evidence to support the charge and il
being correct the judgement will not
be disturbed. II ia az follows:
First-Thia is suit brought by
plaintiff, K. NJ. Cox, for 500 acres of
land out Of the Antonio De Peua IL
League grant, beginning az the north
e?st corner OF the Samuel Moore a
league grant for the southeast
corner of the said 500 acre survey,
thence north Il west 1885 varas to the
southwest corner; thence north IL
east 1899 varas to the northwest corner
thence south II east 1886 varas to the
northeast corner; thence south 10 west
1889 vsras to the beginning.
Second-Fhe plaintiff has dereigned
| title to the 800 acres of land, beginning
at the northeast corner of the said
Moore y league grant; thence with
the field notes above set out TO the be-
ginning and is entitled to hold the
same. The defendant has dereigned
title to the said Moore u league small
surveys which do not affect this con.
troversy, and he is entitled to hold the
same. Plaintiff cannot recover any
land on the said Moore grant and the
defendant cannot recover any land
north OF the north boundary of the
said Moore survey. The question for
you to determine between the parties
is, where is the north boundary line
OF the Moore survey 1t IL not claimed
by either party that the northwest
corner of that survey has been idonti-
fed by the blackberry bearing tree call
cd for in the grant; the question then
is where 10 the northeast
corner OF the Moore grant?
Third-If said northeast corner was
established by the original survey
which calls for mesquite tree six
inches in diameter north q east IL
varas, and the evidence satisfies YOU
where the corner is then the east line
OF the Moore must run TO the corner
so established and the north boundary
must begin at that point. 1t will be
your dHty to follow the footsteps OF
the surveyor who made the original
survey, and If you can find that he es-
tsblished the northeast corner some
5000 varas further ON the east line
than the distance is called, then you
will be governed by 'the corner so
made.
Fourth-If you find that the mes
quite stump mentioned by the wit.
nesses lie the stump of the tree called
for as a bearing tree to such northeast
corner, then the east line will extend
TO the corner so identified, butin order
TO so find, the evidence must satisfy
you that the stump or tree is the iden-
IDEAL tree called for by tho original
Moore field notes.
Fiith-If, however, you find that the
said stump is not the tree called for in
the original Moore field notes and If
the same has not been identified as
the bearing tree to the northeast cor
ner and the corner is not identified
then you will be governed by the call
for distance, and terminate the east
line OF the Moore tract at the distance
called for IN the grant, to-wit., $3.50
varas. III, therefore, you find that the
northeast corner is not identified by
the mesquite tree called for In the
grant to Moore then the plaintiffs
land will begin at the termination Of
the distance as called for In the east
line of the Moore grant, thence around
according TO the field notes SGT out in
his petition and deed from Gregory
TO include the said 500 acres, and In
such case, IL you so find the facts, YOU
will find for the plaintiff the land In
controversy.
Sixth--If, however, you FIND that
the said mesquite.beRring tree for the
northeast corner of the Moore survey
has been found and identified as the