56 Tex. 154 | Tex. | 1882
In his charge the judge, after stating that the legal title was in the- plaintiff, proceeds as follows: “ Defendant shows no written muniment of title in A. E. Gates, but contends that such a deed should be presumed from long length of possession of the land, and the declarations of John Rabb. Possession, to justify such a presumption, must be actual and notorious for a period of more than ten years; the mere cutting of timber would not constitute such possession.” This is assigned as error, and we think correctly. The charge is perhaps not objectionable as an abstract proposition, except that it rather vaguely uses the expression “ more than ten years.” But it is not applicable to the case made by the proof. There was certainly much more proved than the mere cutting of timber. There was an open, visible, habitual appropriation of the timber for a series of years — indeed as long as there was timber to appropriate. This was done under an avowed claim of title, accompanied by the assessment of the land as the property of Gates, and the payment of taxes upon it by him. When the timber was exhausted, he, in 1800, fenced the land, put it in cultivation, and continued to cultivate it until his death in 1863; and the cultivation was continued by his executor until the fences were swept away in 1869.
These things were done under the very eyes of ,John Eabb, who for several years was living within half a mile of the land, and at no time more than six miles away, until his removal from the county in 1869. Besides this positive proof, there is strong negative evidence which
The charge of the court upon the statute of limitation is
The language of the statute is “ peaceable possession, and cultivation, use or enjoyment thereof.” In the preceding section, which limits the time to five years, the statute, in addition to these requirements, demands a deed duly recorded and the payment of taxes. In the section next preceding the last, limiting the time to three years, the statute demands possession and, at the least, a consecutive chain of title from the government down to the occupant. Thus we see that as the time is extended the statute becomes less exacting; but possession is required in every instance, and our courts have held that this means an actual possession. But the difficulty still remains of determining what is the meaning of the words “actual possession.” So far as I know, our supreme court has not determined what acts shall constitute this possession. In Whitehead v. Foley, 28 Tex., 285, Justice Wheeler says: “Ho general definition short of the assertion of a merely arbitrary rule can relieve the question of difficulty in its application to particular cases. ‘ Actual, visible and substantial inclosure is decisive proof of such disseizin and of the limits of it.’ Angel on Lim., 395 and notes. But there are many cases which hold that an inclosure is not essential to constitute an actual possession”—citing a number of cases. -
This was said in reference to the statute of five years. Again, do the words “actual possession” have the same meaning when we apply them to the long as to the short terms of limitation ? It is certain that other words similarly applied do not have the same meaning in the different cases. The phrase “ color of title,” when used with reference to the limitation of three years, means one thing, but when applied to that of ten years it means a very different thing. A void deed or will is worthless in the one case but available in the other. Charle v. Saffold, 13 Tex., 94; Wofford v. McKenna, 23 Tex., 36; Kilpatrick v. Sisneros, 23 Tex., 114.
A too strict construction might render it impossible to acquire some kinds of real estate by prescription. It might be very difficult, perhaps impossible, to build upon a sand bank, or to inclose a rock quarry, or to cultivate a forest. But when a man, under an open, avowed claim of title, enters regularly into the business of selling sand from the bank, or rock from the quarry, and this is continued for the length of time required by the statute, this has been thought sufficient.
In the case before us the possession of Gates from 1852 to 1869 might perhaps be thought sufficient to satisfy the demands of the statute. But the statute was suspended
From 1869 to 1874 the grasp of defendants upon the property was much less firm than before, and the ten years cannot be made out unless we hold that the payment of taxes during this latter period, together with the open claim of title and the control of the property, would be sufficient. This we are not prepared to do, though authorities are not wanting which would seem to justify it.
We think the court erred in holding that defendants could not avail themselves of the defense of estoppel without pleading it specially. Mayer v. Ramsey, 46 Tex., 371; Wright v. Doherty, 50 Tex., 34. The error,, however, is immaterial, as we do not think plaintiff ought to be estopped by the remark made by his father, John Rabb, to McDow in 1858, that he had sold the land to Gates. It was a mere casual remark, dropped in the course of a negotiation about other property. It was not made to influence the action of McDow, and there could have been no reasonable expectation at the time" that it would do so. Williams v. Chandler, 25 Tex., 11.
We conclude that the judgment should be reversed and the cause remanded.
Reversed and remanded.