*1 BUCHANAN v. HOUSTON & T. C. R. CO. through suit, agents, giving in of its re- quested charge included a consideration of weight evidence, which R. CO. BUCHANAN v. HOUSTON & T. C. possession by agents, 5501.) (No. error, while was insufficient reversal. (Court Appeals eases, Appeal of Civil of Texas. Antonio. San and' Note.—For see [Ed. other Rehearing 3, Dig. 4221-4224; Dig. 4219, Nov. 1915. On Motion Error, &wkey;1064.] Dec. Cent. §§ 1915.) 15, ec. D Pleading <&wkey;228 Exceptions—Grounds —<&wkey;8 1. — Adverse Possession 8. Possession Necessity against Matter. —New Lands — State — Public trespass petition, Appropriation. in an action of Where oe allegation try title, plain- to that 5683, providing contained no no Under Rev. art. St. railway company tiff land in person acquire to- limitation ever title shall suit for commercial company’s power issue grounds street, sidewalk, road, dedicated acquire title limitation instruction, to public use, in an action to by excep- not be raised could try title, trespass in to that unless the tions. public- “appropriated” to suit were might acquired, by- cases, Pleading, use, and' [Ed. limitation Note.—For other see title defendant, Dig. Dig. &wkey;?228.] 584^590; citizen, the stat- a not invoke Cent. could §§ Dec. appropria- defense, error, since an a ute tion was not Pleading <&wkey;228 Exceptions—Grounds. 2. — under statute. trespass petition, in Where an action of cases, Pos- Adverse see Note.—For other [Ed. try title, suit does not show Dig. 14, 27, 43-57; Dig. session, <&wkey;8.] Dec. Cent. §§ public use, had the issue dedicated been plaintiff railway company whether title could <&wkey;207 that character of land 9. Trial —Instructions—Evidence- by special exception. Purpose. could not be trespass cases, witness, Pleading, an action [Ed. a Note.—For other Where see always plaintiff Dig. <&wkey;>228.] Dig. 584-59,0; try title, Cent. Dee. testified that §§ land, legal department claimed the advised c&wkey;47i 3. Evidence or Facts. —Conclusions hac! him that he had The statement of a witness that right thereto, his claim and an instruction that plaintiff had a been advised counsel conflicting statements, com- effect that the action of involved land, pany other an- did not own conclusion, try trespass a his upon witness, should be of fact statement and admissible. credibility correct, where of his Evidence, cases, see [Ed. Note.—For other duty to determine whether no his it was <&wkey;471; Dig. Dig. 2149-2185; Dec. §§ Cent. Witnesses, plaintiff had title. Dig. 833.] Cent. § cases, Trial, Cent. see Note.—For other [Ed. Dig. &wkey;207.] 499, 501; Appeal <&wkey;499Scope Dig. Dec. §§ Re- oe 4. and Error — op view-Assignment Con- Errors —When <&wkey;252 Instructions—Testimony Trial 10. — sidered. prom Jury. Withdrawn error, Objections, 'in an charges requested The refusal of exceptions show were does not the bill testimony withdrawn based is not jury are not reviewable made given, since, been peal. testimony weight given must cases, Appeal and see other [Ed. Note.—For it. no-t before <&wkey;> Dig. Dig. 2295-2298; Error, 499.] Dec. §§ Cent. cases, Trial, Cent. see Note.—For other [Ed. Dig. &wkey;252.] 505, 596-612; Dig. Dec. §§ Judgment &wkey;>678 5. —Conclusiveness—Per- — — <&wkey;45 Dedication 11. Evidence Public Privity. sons Jury. Question fori Use — plaintiff railway company taking Where land, of one witness that the sub- Evidence buy any over did not land another ject part witness, trespass try title, of an action of it, selling .the public street, contradicted certain land admis- that sible it had title to was dedicated to who claimed it in an of tres- action railway, in the absence of a deed show- pass try being no plain- use of dedication or the respect, companies privity between the not, law, tiff, as a matter of show that the does judgment conclusively although the established awas street. public property. cases, Dedication, Note.—For other see [Ed. Judgment, cases, Note.—For see [Ed. other Dig. 8S; Dig. <&wkey;45.] Dec. § Cent. &wkey; Dig. Dig. 1195-1199, Cent. Dec. §§ &wkey;>260 678.] 12. Trial —Instructions—Substance Given. 6. Adverse Possession <S=»113—Evidence— requested instruction, refusal Admissibility Documentary — — Evidence charges fully given, is not er- covered CHARTER'S. ror. railway company, in an Where cases, Trial, trespass try title, acquired see Cent. [Ed. Note.—For other action of &wkey;260.] 651-659; Dig. Dig. predecessor, Dec. its its §§ land from but claimed leasing ter, to date from its char- <&wkey;116 Possession —Interest in Adverse until should have been ad- issued Public Lands —Instructions. mitted. trespass try title, an in- In an action of cases, [Ed. Note.—For Adverse Pos- any por- struction tion of the had used session, &wkey;113.] Dig. 669, 671-681; Dig. Cent. §§ Dec. street, by limitation, who claimed title general, Appeal not recover too &wkey;>1064— calculated to and Error Harmless jury; permissive mislead mere Error — Instructions—Matters not at Is-' plaintiff’s aas road would not defeat sue. claim of railway there was no evidence that Where company, plaintiff trespass in an action of Note.—For other [Ed. see Adverse Pos- try Dig. session, <&wkey;>116.] Dig. had ever had of the land Cent. Dec. § topic Key-NumberedDigests <§a»For cases see same and KEY-NUMBERin and Indexes 180 S.W.-40 *2 (Tez. ISO REPORTER SOUTHWESTERN Adyeese — city spaces, <&wkey;7 evidence transfer to 14. Public Possession them to but an intention to dedicate Lands. plaintiff ways, by public commons, acquired public of so to land cannot be Title might acquire by limitation. limitation. Dedication, cases, cases, see other [Ed. Pos- Note.—For see [Ed. Note.—For Adverse other &wkey;44.] Dig. Dig. Dig. <5&wkey;7.] session, Dig. 2A-42; 85-87; Cent. Dec. §§ Dec. §§ Cent. Appeal op — <&wkey;759Scope Appeal <&wkey;1066 Re- Harmless and Error 15. — 22. and Errior view-Failure to Brief Errors. Error —Instructions. try Although trespass ti- Where, brief- to of error are not of in an action by by may, ed, of required law, plaintiff railway tle, in view claimed court alleged by to consider them. limitation lands defendant lic, was not if in an instruction that cases, Appeal land_ an error and Note.—For other see [Ed. plaintiff public appropriated &wkey;>759.] to Dig. 3094; Dig. Error, Cent. Dec. § by limitation, evi- title where could <&wkey;37 in Land— Dedication 16. —Interests not land was that all the to show dence failed public op Acquired Land Use.” Use —“Public grounds, harmless. by to leased it of land a railroad which Use Appeal cases, and see other Note.—For [Ed. storage purposes, convenient for others <&wkey;1066.] Dig. Dig. Error, Dec. § Cent. unloading goods, a use the railroad for beiiig generally, for the benefit Court, Appeal Brazos Coun- District from equivalent to use for a warehouse. Scott, Judge. ty; J. C. Dedication, cases, other see [Ed. Note.—For by & Texas Central Houston 4&wkey;37. Action 73, 74; Dig. Dig. §§ Cent. Dec. Company C. A. Buchanan. definitions, Phrases, Railroad Words and For other Series, Use.] judgment and Public First Second defendant for Erom a <&wkey;62 remanded, mo- peals. in Land- Railroads and 17. —Interests and Reversed Capacity Hold. rehearing, motion tion for Although ac- art. authorizes Rev. St. by railways quisition Davis, of when both and W. C. Lamar Bethea or the line stations and use of for construction or other Botts, Baker, appellant. Bryan, Parker for accommodations, 6538 au- and article Stribling Houston, Garwood, & and grants, railways and to take lands thorizes Stribling, Waco, appellee. requires railways all alienate article depot purposes, except ma- used for those lands railway stations, shops, turnouts, and chine may MOURSUND, Houston Texas & J. good any purpose, land for take title Company Bu- C. A. Railroad sued Central the state. the world all try title, seeking trespass re- chanan Railroads, cases, see Note.—For other [Ed. city parcel Dig. <&wkey;62.] Dig. of land in cover a Dee. § Cent. Compli- — In <&wkey;106 of block 266. addition 250 feet out Adverse Possession 18. try allegations trespass Statutes —Effect—Absolute ance with formal Title. alleged acquired title, plaintiff it had complied limitations, when statutes the statutes of limitation of title under with, the claimant confer absolute title on years. Defendant’s answer consisted and 10 land. cases, excep- demurrer, Pos- general see Adverse Note.—For other [Ed. various Dig. 604-623; Dig. session, Dec. <S=> §§ Cent. plea guilty, tions, al- denials of not 106.] spe- petition, legations contained in Corpora- — <&wkey;10 Adverse Possession 19. pleas pleas. One of these was that cial Capacity Acquire Land —Ultra tions — Vires estopped recovering on by Acts. may corporation land on recover Since a a certain account of recovered act, acquired no rea- ultra vires title record son Bryan against the Houston Tex- & why do so on can be advanced Railway Company and as Central others on acquired, so premises 7, 1884, exception based of land of limitations statutes March in controver- acts. on ultra vires that, sy. Anotner was on account of the Pos- see Adverse other Note.—For [Ed. provisions article 6537 of the Revised Stat- ii&wkey; Dig. 58-64; Dig. session, Dee. §§ Cent. utes, plaintiff, corporation, a railroad could 10.] purposes; commercial not land for hold Executory — <&wkey;487 Corporations Con- to hold the land in it undertook Vires Acts —Enforcement. tracts — Ultra performing an aid in purposes, courts will and therefore executory enforcing con- ultra vires act acquire title thereto limitation. Defend- tract. pleaded further if ant ever had Corporations, cases, see other [Ed. Note.—For premises, &wkey;4S7.] ac- 1893-1898; Dig. the same was Dig. Dec. §§ Cent. quired Rehearing. Motion for On purposes not been used for such it had <&wkey;44^-PuBLicLands —Evi- Dedication many years, con- CY. DENCE—SUFFICIEN pertaining operation nected trespass try title, In action of railroad, in suit and on account of nonuser of whether issue by plaintiff by acquired subject lim- .not property, had lost its it ever maps itation, conflicted as to exhibited where any. pleaded Defendant also streets, width of the block and size the the the wider out designated original platted premises for had been map land showed owner small block with a as a block Jan- surrounding it, with- streets than other uary 8, 1909, prior and that to said date it public, indication dedication public street, thoroughfare, been a himself, or of further reservation recording by him, such, did and therefore used topic Key-NumberedDigests cases see same KEY-NUMBERin cSx^For Indexes HOUSTON & T. O. R. BUCHANAN v. CO. troversy road in upon or title deed from the receiver of the Houston & Tex than to be Houston tween the and therefore bound therein plaintiff this showed sary City road said the bill of filed Texas Central Railroad rendered charter road as Central the deed made of that in ty ment had been made to jections fore the are not use ception. petition therefore without merit. public use, admitted, premises ment of the that merely stating premises character special aof could be complaint company ment of cial that [1, By [3, [5, By the which he withdrew was not the witness’ admissible judgment. and assignment exceptions. .he land from said 4] There is no merit 6] 2] company” public road, Company, been made Company. accepted original answer, creation of the conclusively made that the deed would show that had been .the mentioned possession, limitation could be error, say could not the Houston was the contain no averments to state the for commercial exception. had a in The issue, acquired viz., is stated Railway Company allegations. Texas Central two the first two and therefore the exceptions, certain evidence which had been controversy that defendant parties, company premises, made of paragraph public property. Houston & Texas Central Rail petition v. “railway Company” as said as a fact that a certain Supplemental pleadings were see fifth relates did The statement companies, did not whether H. & T. C. Paragraphs advised successor in interest the first one 5 true, in the could not be the bill of contents thereof judgment under judgment not railway company.” Olcott that the by the bill of assignment The and otherwise from the the trial. the did not show could not second one the second to the the and “buy any holding assignments of error of the court’s Texas him. The other ob purposes, and there conclusion, but was had ever been years past assignment it will be Company, Railroad privity overruling that character of proposition judgment assignments or issue was Railway Co., the the third alleged admissibility to F. 3 and is not the Houston & in the ease of grounds issue, of the witness acquiring to the exceptions by Central Rail As the “rail consideration exceptions raised statement legal dedicated to be complaint years prior such claim existed be would one, the effect Company, P. copied unneces- 4 that and the poses. that the whether of error pleaded further thereto proper depart in. of assign Olcott, charge of the joined by under state This even part con Westcott spe the the are ex of in is is- it. the for you itation, land, might is made because the court the lic ply Adams’ cott, App. 371, tonio v. toria ant would tion in favor of the ing possession by agents made requested the purposes, evidence that failure to that it was not created until ny” veyed used the through 10 giving that session of the plaintiff. ated for S. special charge out merit. session tiff S. S. W. ror would “If the This ^[8] ^[7] W. W. 753. years of its land sued for.” limitation, *3 assignment as in other public why city may not have ever will return claimed adopted adverse said for statement disclaiming County, By By The sixth could not objection urged affect the for such of the Gillean by but the statute of limitation charge S. W. public its testimony before the institution Rowley, public jury the charter of the “railroad did appropriate authorizes had excluded, told yet the seventh grounds 61 S. require appropriate There was no evidence that tenants. We do not think use, weight City 'of The agents or tenants for a has held Krause v. said it; giving if believe from the evidencethat the eighth possession, through agents, 115 W. him in 1901 use be 3,No. which reads as follows: same, using contending 924; City and leased v. which were article is W. must be overruled. therein. vain, use, they shows assignment assignment complains own the land in credibility be assignment grounds the title of 48 Tex. entitled to invoke the charge a reversal of the case. The S. verdict City were never of the evidence mention erroneous. Corsicana 345; Spencer for it would have of statements peaceful assignment complaint dedicated to it for the further believe from the and to the as to the statute of lim- assignment complaint they appropriated special charge City in 1887. As 71; City grounds belonging city, If the failure No. were never of acquisition for the use for in addition to Frost, of Victoria would evidence a Civ. is the dedicated or therefore portions deprive any part had no title Adams testified is sustained. and adverse very acts, of the statutes of this v. 2, requested charge gave plaintiff’s then the defend- appropriated overruled. and the The App. enjoying’ impossible city, it had Zorn, El the railroad 25 Tex. Civ. v. in effect use while such Paso, Levy, would Westcott. fact suit, period of West- appropri- and San is with you briefed, this thereof compa- v. Vic charge of the of the No. of the excep- West public plain taken show same Tex. pub pur then pos that pos- An find 173 101 er by is it (Tex. REPORTER SOUTHWESTERN G28 cover such ed in portion sists tral which charges. the use (cid:127)J. deed n land on not have been cott’s cated casts Westcott charges, n contradiction. n troduced. deed that there was map ny eleventh, sixteenth, part certain tended that shows that cott, run in favor of under mony pointed of law a ant’s witnesses ly mony ruled. ments teenth have been quired cott’s about vised der this court had withdrawn state of the title [12-14] There effect [10] The twelfth street Main Bryan, had title or not. understand company, Railway Company assignment shows railroad of a street or of three conveying during contention was any light him duty it, and that the By are based complain withdrawn the admission witness the which weight. were street, street, assignment which were charge is no merit later on fact conveyed The seventeenth way the improper part. and therefore Westcott to determine whether seventh introduced the occupancy property.” public' that if third of these was and cannot the town out fifteenth the uncontroverted only and for If there what then the land to testified of the plaintiff. on this public. of the refusal These to consider The upon or the railroad in 1901 fails to testified that from the court. The other two overruled. to the railroad used ground. tracts assignment. time he refers to that the land Westcott ownership the He eighteenth, predicated assignments Houston give the refusal of a legal department assignment in evidence. West charges His map on record. The cross-lines matter, it had been is twenty-first the testimony, it would town of limitation did ground The statement show the charges crossing any situated. We do opinion the denied this. No controversy portion given One lmew it jury. assignment there was means public. the statement has used & Texas Cen ninth, were entire- fully as deed which it in 1859 W. and not claimed for a road “claim upon binding of the consistent- of defend company; which re are indicates poration ought a matter anything thereof. not re theAs give compa- ly assign a special cover West tenth, effect dedi testi testi over nine- land city. part is a this con not un ad- in no is it executory to land to why in the we do not nize on jection it 10, p. fer an absolute are than Railway Co., 420; recover pose quires essary purposes. Tex. may all Schneider panies A. 295. Our statutes the load ises, jury. question 1911, courts should porations lic would not in view. The mere McDonald, the reasons parties public generally, upon therein, we have decided to state our views land the that were, not be tle companies ties for said appellant they cient, importance teenth assignment. quired by law, Such The twentieth seems [15-20] The purchase. too proof way aof complied for land for the recognize be so should have been Civ. a Tex. such use was limit the entire performance good a title general, recovery limitation to land not for, subject to which railroad *4 assignments leased land on storage purposes, road across land claimed have erected world freight parties limitation. acquire by which App. 551, 67 W. contract, they v. & Ft. depot question. It prevent 78 Tex. than those record the facts of one given view of Our persons. But it is asserted which has been held with. Sellers, it would warehouse not one designed permitted to them deny such and calculated to mislead the the 68 Tex. fourth, thirteenth, how performing discussing to he of such should the statements were intended to reach purchases S. parcel and for the railroad to and was extent of articles good statutes is showing title. courts record permissive to be Ry. him from of an ultra 76, is because title, limitation lands not nec ' when public grounds, are not briefed as The We are acquired by of limitation sustaining good appropriate framed permitted for S. not be 14 S. W. be reason v. T. & O. the parties to be used If a 652, Tex. fact that will not just settled, courts it business. equivalent contention is made rule these an ultra vires of limitation the terms thereof but leased to state. Russell v. an ultra the a limitation in this land plaintiffs acquire upon questions it corporation can 5 S. which railroad acquiring used assuming, permitted can be vires can benefit of the at will sustained N. being binding assignments, do no 261, for a that a which such hy enforce 6539, convenient acquire said state, and four buildings. treat W. for 84 S. W. vires for, Cyc. apply to act, Lyon for if it law ac seventh 9 L. R. Ry., insuffi urged recog would claim, of the prem using more right R. S. as to com such 686; pur con idea par act, aid vol. and cor up cor act the ob un re ti v. v. HOUSTON T. C. B. CO. BUCHANAN tlie itation tion donate to that by limitation, and claring more ord innocent etc. App. 109, (cid:127)other act 135 S. W. 161. acquiring should courts be further good remanded. cent been ments of ership acquired Sellers, tention is that the evidence ter of law that the not dedicated to the Nos. 7 former time and to indicating occupancy is much smaller than laid ed in of which half is claimed in Book H, lying the block 260 which lies west thereof. The as can be size block space left between said block and the one ^[21] be correct in be precluded sufficiency title. enforcement as block there is purchaser Minute Book has reason for out as legal. than disposed a railroad See acquired by east of block 106 is much depicted occupancy grant making Book Appellee statutes twenty-second assignment opinion, 98 Tex. to us that such H map purchaser On Motion also been error. Small v. 32 W. There prohibited, and that discussed, between blocks 106 and 260. purchaser same the block on which This extent shows an intention not to acquisition can indicated sustaining assignments of H S. no reason depot although not authorized for value under based to be immaterial. under statutes indicates, contends that that railroad tracks at the that the furnishes the court has is is reversed of a aof rights while on the made B, exercising purchase, the enforcement McMurphy, considering for value. land public. may grounds, right as all contentions evidence, 84 W. commits map so as to be the same portion exception that a public, of lands Behearing. included within the crossed a portion such land S. and indicated nevertheless errors can Kingsly as stated in our in two recorded in Book inure ultra shows there seems no and the cause Buchanan was purchaser an ultra vires of such map map if this 11 Tex. Civ. our Schneider appear greater of block 266 map pointed corporation lished to an inno- its charter vires courts by limitation. noted cases relates portion the block purchase v. need was not laws, recorded the lim of own- record assign- limita a mat a rec be Kerr, court error way, acts, lines page held open than will out de an south thereof which al- to these v. part portion lic within to who vacant and the ing diagonal any such and it on ever, impossible the its of a In other an diagonal other cross streets brook testified: veyed the town is situated on 60 feet others “park,” tlie land and the We evidence Baker and recorded dedicate evidence but evidences an intention evidence and recorded serve to open spaces, nor dence were same to ways. clear ion, “In Again he testified that said open makers map town, names. The evidence is rather believe, block reserved A. show harmless. 1859W. that there are no words in 1860.” between use, just spaces block 266 which boundaries motion wide As subject, intention railroad made and space depot Groesbeck. and most of the streets original map, of the land one whether a evidences the use the same a transfer to the words, on this lines themselves the lines and the be said that the errors the evidence as a matter of law that all the was reserved from or a to set aside the same as a Groesbeck, portion them should town from consideration J. whether further recording between blocks 104 and to have been left crossing In this connection must like part right way. record point, town which casts map, recorded the of the small block shown indicate rehearing railroad. And he also con- be introduced in evidence. small block covered with map retain such If there is a similar of a street. intention be held us other evidence indicat- claim them to such it cannot be conveyed block 266. As they wider street does intended to that the deed was site W. B. it. There is also a and there is no evi- Groesbeck,Bice, “public also to determine leaves larger not embraced with- makers of the open the land on which for is Bryan conveyed not, intended to public grounds, any depicted There is noth- than the being platted, what space adjoin- map spaces *5 upon any map. dedicate the open any spaces, block commons square” pointed It it is to be light of all embraced be estab- our vague than the does is, without be deed part spaces, Baker West- or to is no what made lying how- map. opin map out re-