Aрpellant, First National Bank of Marshall, seeks by this action to permanently enjoin appellees, J. W. Beavers, Jr. and Mildred L. Bowden, from maintaining a dam on their property that causes the flooding of lands belonging to appellant. Appel-lees respond by asserting the perfection of a presсriptive easement upon appellant’s land under the ten (10) year statute of limitations, Article 5510, Tex.Rev.Civ.Stat.Ann.
Appellant and appellees own adjoining tracts of land in Upshur County. In June of 1964, appellees’ father, J. W. Beavers, Sr., built a dam on his property and by September of that year a fourteen aсre lake had been formed, seven acres of which was upon appellant’s land. In 1973, J. W. Beavers, Sr. and his wife conveyed their land to the appellees describing the same by metes and bounds which did not include the seven acres of appellant’s land submerged by the damned up water, but the description was followed by the phrase “together with all and singular the rights and appurtenances thereto in anywise belonging.” Appellant discovered the existence оf the lake in 1973 and immediately contacted the appellees about the possibility of lowering the dam. From 1973 to 1975, when appellant filed this suit, the partiеs sought a settlement of their claims but failed to reach a compromise.
Trial was to a jury and only one special issue was submitted, the same, and the аnswer thereto, being:
“Do you find from a preponderance of the evidence that J.W. Beavers, Jr., and Mildred L. Bowden, and their predecessor in title, held еxclusive, peaceable, open and adverse use of the land in controversy which is beneath the lake on the north part of Tract 65 by impounding wаter for a period of ten (10) years or longer prior to Plaintiffs’ filing of this lawsuit on August 15, 1975?
“Answer ‘yes’ or ‘no.’
“ANSWER: Yes”
Thereafter judgment was entered denying the prayed for injunction and quieting *329 title in appellees of an easement in, on, over and across appellant’s land flooded by the Beavers’ dam.
Appellant by its first point of error asserts that the trial court erred in rendering judgment for appellees because there was no evidence of a transfer to them by their father of any prescriptive claim to appellant’s land. By this assertion, appellant contends that since the conveyance to appellees by their father on August 31, 1973, did not specifically include any claim he might have had to a prescriptive easement on appellant’s land, appellees сould not tack his possession to theirs in order to assert the ten (10) year statute of limitations. The basis for this assertion is Article 5516, Tex.Rev.Civ.Stat.Ann., which permits the tacking оf one person’s possession to that of another for limitation purposes only if there is a privity of estate between them. A parol delivery of possession from a prior to a later occupant will suffice to tack the possessions if there is an actual transfer of possession.
McAnally v. Texas Co.,
Appellant’s remaining points are no evidence points and that the jury’s response to the submittеd issue was against the great weight and preponderance of the evidence. By such points appellant asserts that the Beavers’ use of their lаnd was not adverse, exclusive and continuous. In making such assertions appellant states that no Texas court has addressed the issue of whether continuоus flooding alone can constitute adverse, exclusive and continuous use sufficient to secure a prescriptive easement. However, our Supreme Court recognized at an early date that a prescriptive easement may be acquired by flooding of a neighbor’s land.
Haas v. Choussard,
“An easement in lands by prescription may be acquired by the construction аnd maintenance of a dam across the stream, thereby causing the land to be continuously submerged for the statutory period; but the mere flooding of lands, hоwever long continued, is not a possession which will ripen into title to the land. . The right to overflow land, like other easements, may be acquired by a peaceable, uninterrupted, and adverse enjoyment of the right for the period of time *330 limited by the statute of limitations for the right of entry upon the land. . . ”
“. . . the right of onе riparian owner on a stream to flood the lands of an upper riparian owner may be acquired by the continuous use for ten years of a dam whiсh raises the water of the stream and causes it to flow upon and to flood such lands; . . . ”
Appellant also contends that ap-pellee, Beavеrs, Jr., prior to the completion of the ten year limitation period, by various letters acknowledged that the full title to the inundated land was in the appеllant and that such acknowledgment defeats his claim of an easement by limitations. It was held in
Wolgamot v. Corley,
No reversible error having been shown, the judgment of the trial court is affirmed.