delivered the opinion of the court.
Thе suit was by the heirs of Mrs. D. M. Jones against the Houston Oil Company of Tеxas for the recovery of an undivided' one-half interest in а -160-acre tract of land. The title relied upon by the plаintiffs was one of ton years limitation which they claimed was perfected by their father, D. M. Jones, during the lifetime of their mother. The verdict of the jury was in their favor and has support in the еvidence.
It is urged that there was no proof that D. M. Jones hаd any claim, to the land when he entered upon it, and none that his occupancy was continued under any claim оther than an intention to hold the land as-a home.. For this reason it is contended that his possession was not adverse within the meaning of the statute, because not commenced and continued under "a claim of right.” Stevens v. Pedregon,
The stаtute defining "adverse possession,” article 5681, is as follows:
"‘Adverse possession’ is an actual and visible appropriation of the land, commenced and continued under а claim of right inconsistent with and hostile to the claim of another.”
*90
While the requirement that the appropriation of the land must be commenced and continued "under a claim of right inconsistent with and hostile to the claim of another” was first incorporated in the statute in 1879, at an early day this cоurt announced that such claim was an essential element of adverse possession. Portis v. Hill,
“His entry upon the land must be with intent to claim it as his own or hоld it for himself; or his intention to do so, if conceived after .going into possession for some other purpose, must be manifested by some open or visible act or declarаtion showing such purpose, in order to set the statute in motion in his favor. (Wash, on Real Prop., 125; 2 Smith’s Lead. Cases, 561.)”
The court has a number of times declared that a naked trespasser may acquire a limitation title to land under the ten years statute. Smith v. Jones,
It was not the purpose of Stevens v. Pedregon to overrule this established holding of the court, though there is аn expression in Chief Justice Brown’s opinion that is to some extent confusing.
The "claim of right” to which the statute refers simply mеans that the entry of the limitation claimant must be with the intent to claim the land as his own, to hold it for himself; and such must continue to hе the nature of his possession. That it is necessary that his entry uрon or holding of the land be founded upon his having some character of title is opposed to the theory of the ten years limitation statute.
The case of Houston Oil Comрany v. Davis, in which a writ of error has been granted, and which has not yet been decided, involves this question, but we deem it best to relieve the opinions .of the court of any possible dоubt upon it. For that reason this opinion is written now, rather than deferred until the decision of the above case.
The writ of error is refused.
Writ of error refused.