236 S.W.2d 251 | Tex. App. | 1951
This is a boundary dispute which resulted in an instructed verdict for the plaintiffs and against the defendants’ plea of adverse possession for ten years.
Thornell and wife, appellees, commenced a trespass to try title suit against Mathews and wife for a disputed strip of property located between tracts owned by the Thor-nells and the Mathews. The Thornells owned two and a half acres in Tract 364, Mayfield Park, an addition within Bexar County, and the Mathews owned a portion of Tract 365, immediately to the east of the Thornell tract. . The contiguous tracts front on Villaret Street, which is their north boundary, and extend back eight hundred feet in a southerly direction from that street. The east boundary of the Thornell Tract 364 is the west line of the Mathews Tract 365. For some time a strip of land thirteen feet wide and extending back from Villaret Street 480 feet has been fenced in with the Mathews Tract 365, although the true survey line shows the strip is out of the Thornell Tract 364. The defendants, with their predecessors, claimed the strip under the ten-year statute of limitations. The Mortgage Loan & Agency Company was the agreed common source and the plaintiffs established superior record title.
The plaintiffs’ judgment on the instructed verdict should prevail unless the defendants, by their plea of adverse possession raised ah issue for the jury. Since the court instructed a verdict for the plaintiffs, we shall consider the evidence in its most favorable light toward
Some time during 1936, Mr. Popham rented Tract 365 and erected the fence on what he mistakenly believed to be the true boundary line. In 1938 he bought Tract 365 and continuously thereafter treated all the property as his own, including the encroachment upon which there was a garage. He sold the property in March of 1945. Under the facts of the case, hostile possession by Popham was necessary to a successful claim for ten years adverse possession by the Mathews, his successors.
The evidence showed that the Mortgage Loan and Agency Company, from 1936 until 1943, owned the adjoining Tract 364, as well as other property still farther to the west of Tract 364. The evidence also showed that the Mortgage Company granted Mr. Popham permissive use of some property. Mr. Popham was called as a witness and a portion of his testimony was as follows:
“Q. You were also using Lot 364, the part adjoining your lot over there, weren’t you? A. I was using that seven and one-half acres in there.
“Q. That was 364 and probably 363 over her el A. I guess so. I never went by any tracts, such as that at all.
“Q. How did it happen that you were using that seven and one-half acres? A. Well, there is a little patch down in below me there, I was using it for a time. I went to see the Mortgage Loan and asked them about a fence, putting a fence there, and letting me use it.
“Q. Was that the seven and one-half acres? A. Yes, it was about seven acres in back of us.
“Q. When you went to see the Mortgage Loan Agency about that, what did they tell you? A. They said for me to go ahead, fence it, and use it.
“Q. You did fence all of this 364, west of you, you built a fence there before you got their permission? A. I had this fenced, this in here.
“Q. You did get their permission to use that land there? A. Sure.”
Mr. Popham testified that there was a cross fence south of a house on Tract 365, and one appears in the exhibits approximately 400 feet from the north line. He testified that the Mortgage Company “told me to gO' ahead and fence it and use it back there, that contained seven and a half acres between me and the other house there.” When the direct question was asked whether he fenced all of Tract 364, from the above testimony it is seen that he did not give a direct answer, but apparently indicated some place on a map, but this testimony is not tied down to any map or exhibit in the record.
A neighbor who had lived near this property since 1936 testified that “They (Pop-ham) used to move the cross fence to keep his cattle in there.” She testified as follows :
“Q. That is in the back1 A. In the back.
“Q. He moved that from time to time? A. Yes, sir.
“Q. What was he using the land for? A. He had hogs and cattle out there.”
The difficulty of evaluating these locative statements which are not tied to positions on the maps is recognized and is partially clarified by statements in the
Not knowing what the testimony was, we are unable to determine if it is conclusive. The judgment will be reversed and the cause remanded.