Chance v. Branch, Case No. 1542

Case No. 1542 | Tex. | Feb 2, 1883

Willie, Chief Justice.

This cause was submitted to the judge below, no jury having been demanded, and in the absence of a statement of facts his conclusions found and filed under the statute must be taken as embracing substantially the facts proven on the trial. These show, among other things, that the appellant settled upon the land in controversy in January, 1869, and built a house and inclosed three or four acres with a fence, and occupied the same up to 1881. That he intended, in so settling upon the land, to claim a pre-emption right in it as vacant land. That he knew there was adjoining his settlement the Elisha Duncan league, which he recognized as belonging to the appellees, and to which he asserted no claim. That the lines of this league immediately adjacent to his settlement were not so well designated that he could tell positively whether or not he was inclosing a part of it, and he endeavored, and it was his purpose, not to embrace any part of the Duncan league in his pre-emption survey, but to run his lines so as to include only vacant land. That he stated to the owners of the Duncan league at various times during his occupancy of his survey that he made no claim to said league or any part of it, and that he would notify the owners of the league adjacent to his settlement of trespasses upon it. The lines of Chance’s, survey were run by the county surveyor under order of court in this cause, and were found to embrace a portion of the Duncan league, of which portion Chance had been in possession without knowing the fact, and without intending to be in possession of the part embraced in the Duncan survey.

Upon these facts the court below concluded that Chance’s possession was not adverse to the owners of the Duncan league, and that he could not claim any portion of it by limitation. It is essential to a possession of land, in order to defeat a recovery or vest a right under the statutes of limitation, that it should be adverse. The true owner must be disseized by the entry and occupation of the party setting-up the statute, which is not the case if he enters or holds in subordination to the adverse title.

If the original entry be not with the intention of claiming the premises, and the possession is continued by his permission, and with the understanding between the parties that the true owner is at all times to be regarded as the proprietor notwithstanding such possession, it is not adverse and can never ripen into title. Angelí on Limitation, § 384; Cholmondely v. Clinton, 2 Jac. & W., 1.

In Portis v. Hill, 3 Tex., 279, this court adopted the language of the author above referred to, and held that there must be an actual, visible and exclusive appropriation of the land, commenced and continued under a claim of right. They further held that this, claim must be either open and avowed, or constructive, showing an intention to claim against him who was seized.

Again, in Gillespie v. Jones, 26 Tex., 346, it is said that a party cannot claim the benefit of the statute unless his possession has been in point of fact adverse to the title which he seeks to resist; and to constitute this there must be an open, visible and exclusive possession, that the adverse claimant may be thus notified that his title is disputed.”

Applying these principles to the facts of this case, we find that the possession of Chance was in no sense adverse. He entered upon the land of appellees through mistake and with no intention of claiming it. So soon as he discovered the mistake he recognized the rights of the true owners, and constantly notified them that he made no claim to their land, and offered to act as their agent in keeping off trespassers in his neighborhood. Such acts as these do not show an open, visible and exclusive appropriation of the land to himself in opposition to the title of the owner, but on the contrary, an entry by mistake upon the lands of another not intending to claim them, and a subsequent holding in subordination to the true title.

The appellant is brought exactly within the condition of one who cannot set up the statute as laid down by Hr. Angelí, when he says: That “ so long as the possessor declares that he holds in subordination to the better title, the possession will be regarded as held by consent; nor will a continued possession after such declarations avail to mature a title under the statute óf limitations, until the party has changed the character of his possession either by express declarations, or by the exercise of acts of ownership inconsistent with a subordinate character.” Angelí on Limitation, § 354. We think the court held rightly that the possession was not adverse, and that the statute could not avail the appellant, and the judgment is affirmed.

[Opinion delivered February 2, 1883.]

Affirmed.