Milad Nassar v. Phyllis M. Cole--Appeal from 234th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-92-070-CV

MILAD NASSAR,

Appellant

v.

PHYLLIS M. COLE,

Appellee

From the 234th District Court

Harris County, Texas

Trial Court # 90-56816

OPINION ON REHEARING

The jury found in Question 1 that Cole owned the disputed strip of property. Nassar questioned in a motion for a new trial whether the evidence is factually sufficient to support this finding and raised that same complaint in his third point of error. He correctly points out on rehearing that we failed to dispose of this point in our original opinion.

In a factual-sufficiency challenge, the reviewing court must consider all of the evidence, both for and against the finding. Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex. 1986). Because Cole had the burden of proof on the question, Nassar must establish on appeal that the evidence supporting the finding of ownership is so weak as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

Cole produced two surveyors who attested to the location of the common boundary line between Nassar's and her property. Their surveys located the boundary generally along the line of the chain-link fence that originally separated Cole's and Nassar's lots. One of Cole's surveys, however, found that the original chain-link fence varied from the true property line at one point by .35 feet. Cole testified that she had her property surveyed before purchasing it and that the chain-link fence was located on the true boundary line. According to her, the chain-link fence had stood on the true property line for at least thirty-five years. Nassar's surveyor, however, claimed the true property line was located along the course of the new wooden fence. All of the surveyors testified about the methodology they used to locate the disputed property line. To say the least, the evidence relating to the accuracy of the competing surveys conflicted.

Nassar essentially argues that the evidence is factually insufficient to support the finding of ownership in Cole because her surveyors did not attempt to "follow in the footsteps" of the original surveyor or "seek the intent" of the original surveyor. See Howland v. Hough, 570 S.W.2d 876, 882 (Tex. 1978) (holding that subsequent surveyors should attempt to follow in the footsteps of the original surveyor, if possible). All of the surrounding facts and circumstances should be considered, however, if one cannot ascertain the original surveyor's true intent with reasonable certainty. Gill v. Grimes, 238 S.W.2d 989, 990 (Tex. Civ. App. Waco 1951, no writ).

All of the surveyors went into considerable detail about the methodology each used to locate the disputed boundary lines. Cole's surveyors both criticized the survey prepared by Nassar's surveyor. Cole's two surveys adhered closer to the original surveyor's lines than Nassar's. In fact, the evidence showed that the lines found by Nassar's surveyor, if extended, would have varied widely from the corners and monuments in the subdivision. Considering all of the evidence, Question 1 is based on factually sufficient evidence. We affirm the judgment as reformed. Otherwise, the motion for a rehearing is denied.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed; motion rehearing denied

Opinion delivered and filed April 28, 1993

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