
    Christopher Kerlicks and Wife v. Adolph Meyer.
    No. 3197.
    Charge Upon Weight of Evidence — Surveyor’s Report. — In a suit involving boundaries in which an order of survey had been made and the report of the surveyor submitted in evidence, there being conflicting testimony, it was error, as charging upon the weight of evidence, to instruct the jury that the surveyor’s report must be taken as correct and true until it is shown to be erroneous; and that the burden of proof is upon the defendant to show that this report is erroneous.
    Appeal from Goliad. Tried below before Hon. H. Clay Pleasants.
    The opinion states the case.
    
      Lane & Mayfield and J. Gus. Batton, for appellants.
    — The court erred in instructing the jury that the report of the witness Schleicher must be taken and regarded by the jury as correct and true until it is shown to be erroneous, and the burden of proof is upon the defendant. Rev. Stats., arts. 1317, 4800; Heldt v. Webster, 60 Texas, 207; Railway v. Murphy, 46 Texas, 356; Sparks v. Dawson, 47 Texas, 138; Railway v. Ormond, 62 Texas, 274; Dwyer v. Bassett, 63 Texas, 274; Medlin v. Wilkins, 60 Texas, 409; Frisby v. Withers, 61 Texas, 134.
    
      A. B. Baticolas, for appellee.
    — A charge upon the weight of evidence will not reverse when the verdict and judgment is sustained by the testimony. Gaston & Thomas v. Dashiell, 55 Texas, 516; Atkinson v. Ward, 61 Texas, 385; Bowles v. Brice, 66 Texas, 731; McClane v. Rogers, 42 Texas, 220.
   FISHER, Judge,

Section B. — This is a suit of trespass to try title, by appellee against appellants. Defendants pleaded not guilty. The parties in the trial below admitted there was no question of title between them, and that the only question was as to the true boundary and location of the southern and eastern lines of the H. T. Callahan survey.

Several errors are assigned, but we deem it only necessary in disposing of this case to notice the assignment of error that complains of the following charge:

“The jury are instructed, that the witness Schleicher was, by a previous order of this court, directed to ascertain and report the true location of the boundaries in dispute between the parties plaintiff and defendant, and that report, which is now before them, must be regarded and taken by the jury as correct and true until it is shown to be erroneous, and the burden of proof is upon the defendant to show that this report is erroneous.”

.This charge is clearly on the weight of evidence, and it was error to give it. McAninch v. Freeman, 69 Texas, 448.

There is a conflict in the evidence as to the location of the eastern and southern lines of the Callahan survey. The verdict of the jury was in accord with the report of the surveyor Schleicher, referred to in the charge. The effect of this charge was to turn the scale in favor of the plaintiff. For the error in giving the charge, we reverse the case.

Reversed and remanded.

Adopted March 25, 1892.  