Nelson v. Continental Asphalt & Petroleum Co.

ON THE MERITS It is contended by these defendants that the tract of land leased did not contain in fact 75 acres, and that it should have refunded to it approximately $1,000, being $100 per acre on the difference in acreage between that estimated in the lease and the acreage actually covered by the lease; and further contended that, if the court should hold that defendants are liable for any amount, such amount should be based upon the actual acreage and not that stipulated in the lease. It is contended in argument that the lease covered only sixty-four and a fraction acres, and it is suggested that the land was carefully surveyed and measured, which survey and measurement disclose that the tract contained only about 64 acres. But we fail to find in the record the plat or survey referred to, for which reason we have no means of ascertaining the acreage, except by reference to the testimony of the plaintiffs. They both testified that, at the time the lease was granted, there were 75 acres in the tract, if not more, and there is nothing in the record to the contrary. The testimony discloses that a portion of the land is located on the bank of Red River, which is caving very rapidly, and it is probably true that the tract was reduced in acreage by the caving. But, as stated, the only testimony in the record with reference to the acreage shows that, at the time the lease was made, there were fully 75 acres in the tract, as estimated at the time the lease was entered into. We think the judgment on the merits is correct. Por the reasons assigned, the judgment appealed from is affirmed, with costs in both courts.