*1 Appeals reversed and judgment of Civil the Court is affirmed. that of the trial court
Opinion April 14, 1954. delivered
Rehearing May 19, overruled 1954. Deep Corporation al
Tom Rock et Orsborn v. Oil Decided March 1954. No. A-4335. Rehearing overruled May (267 781) 2d Series *2 Reeder, Watson, Stamford, Jr., Watson & Joe of Knox of City, Adkins, Folley, Adkins, B. and A. & Hcmkins McConnell Hankins, Amarillo, petitioner. all of for holding grazing Appeals Court Civil erred perfect statutory period alone for the use to was not sufficient required limitation when all under the statute title the elements present. Liverman, 2d are 185 Caver v. 143 Texas 417; Butler, 191; Burnham v. Taliferro v. 77 Texas 14 S.W. Hardy Co., Oil Texas Martin, Worth,
Alexander Trust & for The Alliance of Fort Co., Brookerson, Seymour, Brookerson M. Bowl- & for Mrs. C. Stamford, ing, Deep Corp., Andrews, Rock Oil Andrews <6 Co-, Turpin, Royalty Kerr & for Crude Oil Co- and Federal Corp., Irby Midland, Dyer, Deep Smith respondents. L. Rock Oil all of for petitioner reason Since failed to show adverse ‘fence, question under continuous use or that the land in was the real other hostile to facts sufficient to evidence holding owner, Appeals not in error in the Court of Civil was by limi title use of the land insufficient to sustain was Kahanek, tation. West Production Texas Co.
328; Refining Co., Texas 109 S.W. Harmon v. Overton Stewart, 2d 948. MeKee Smedley opinion of the Court. delivered Mr. Justice Long respondents Deep sued C. B. Tom Orsborn Petitioner possession title for the Corporation and others Rock Oil Survey- containing Eustis in the J. 56.85 acres G. a tract land alleging possession under County, King adverse title No. Long, record owner years B. ten of limitations. C. statute minerals, interest and an undivided surface 2/35 being other Respondents, defendants all filed disclaimer. being record title to the Long, B. the owners than C- Long which owned controversy except the interests in guilty. After trial title, by pleas of answered record ren- jury, judgment for title court without against The Court of defendants. petitioner all of the dered Appeals judgment and rendered the trial court’s Civil reversed *3 against nothing by petitioner suit re- judgment that take his spondents. 259 2d 625. findings fact, of
The of some which trial court made elaborate finding law, petitioner’s favor seem to of rather be conclusions posses- by to title adverse all elements essential establish years limitations, Re- Article sion under the ten statute of by prescribed as are vised Civil of the same that Statutes article and defined Articles 5514 and 5515. Appeals ac- Court of Civil reached the conclusion that
cording undisputed petitioner to to the facts in evidence failed prove acquisition essential adverse elements for of title possession. particularly, Appeals More of Civil decided Court disputed by petitioner that the of tract of land father, near-by acquired had title recorded his who land under deeds, gave character of itself of such adverse, of notice that mature into would hostile this, expiration statutory period, at title together casually tract was with the land enclosed by petitioner owned a and his father and tract of land owned State, by petitioner the by or all enclosed fence not constructed father, only incidentally and that their and oc- cattle casionally grazed off of the land owned onto the dis- which puted tract оf land.
After a careful of facts examination of the entire statement we have reached conclusion that reached same ultimate Looking Appeals. the Court of all the evidence and Civil accepting by petitioner, all as true offered in- of the evidence cluding wanting petitioner’s testimony, evi- we find that there probative tending prove petitioner
dence of value and his father or either of had adverse them is, tract as defined in appro- Article “actual visible priation of the land commenced and continued under a claim of right inconsistent with and hostile to the claim of another.” The presents question questions case of law. There are con- no flicts the evidence as to material facts. The statement wholly facts indeed by peti- consists almost of evidence offered Respondents' tioner. except documentary offered no evidence evi- dence, testimony topography quality as to the of the land and portions petitioner’s deposition. plain In order to make expressed, basis of the necessary conclusion it is make statement of the substance of the material facts. October, 1919, Orsborn,
In petitioner’s J. T. father, acquired by deed from E. C. Couch and A. Davis W. Smith David Survey, survey, acres, or two tracts of land of that a total Survey, containing also the acres, lying, E. M. Ellis 150.5 immediately Survey. December, 1919, southwest of the In Davis T. acquired by J. Orsborn deed from J. A. four Wade tracts acres, Ry. Co., a total of 370 of Sеction H. & T.C. which adjoins Survey November, 1921, the Davis on the northeast. acquired by J. T. Orsborn deed from M. T. Holland a tract containing Ry. 120 acres out of Section H.&T-C. Co. Each conveyed by bounds, deeds the with described the tracts metes and survey corners, references to lines and the Brazos River objects; artificial contained but deed no reference to a fence or fences. Two of deed were filed for record on Jan- *4 uary 30, 1920, and the third deed on December bought
Petitioner testified that when father the land in the Surveys Ellis and Davis an and in 80 there was Section existing forming fence which is enclosure now shown enclosing acres, embrace an area of about 747.58 and that the now; fence or they fences were then about where are that some- parts out, times of the fence were washed would but replaced forming get be “as soon as we could to them.” The fence the tioner, by petitioner’s by peti- enclosure was not nor built father petitioner
but it in fair testified that has been maintained repair. by The area north- of 747.58 acres fence extends enclosed the length along
east and southwest near River. Its or the Brazos 4,560 varas, northeast and southwest or 2.4 miles. its is about part 1,350 wide, northeast the and enclosed area is about varas part disputed in its southwest at the middle of the tract about land that 585 varas. area is The of the enclosed about the width part, by northeast is the petitioner’s acquired deeds father Immediately southwest acres, 747.58 acres- enclosed 630.73 the State, and immediate- the tract owned of that land is 60-acre ly the end of tract and at southwest of the southwest State controversy. tract in is 56 85 acre enclosed area separately fenced disputed tract acre has been 56.85 There of 747.58 acres. other the enclosure from the land within along disputed and tract is northeast line of no fence wholly, wholly, on line is or almost the fence on its northwest Co., does Survey 89, Ry. record northwest. The H.&T.C. its forming when, by whom, purpose for or what fences not show the 747.58 acre were built- enclosure petitioner knew land within
A he witness testified that early that time as 1912 or and that at persons. in was fenced several tracts owned different testimony quality in There are differences to the some agreement tract, the land but seems there grass part hilly, on the north of the tract is but little it, river that much of and near the land within the tract grown up cedars, wih and north- salt that toward east grass average part quality. of the tract It is fur- east there is grazing in the ther shown record that land for the best parts north and enclosure. Petitioner northeast the 747.58 acre grass part testified that there is and was little on the west controversy. petitioner’s acquired after father the land in the Davis Soon Surveys began Ry. Co., and Ellis H. Section & T.C. grazing cattle, and so use the the enclosure for within continuously petitioner used it died Thereafter until he in 1933. continuously way' time used the land in the until same about this suit was small been filed. Some tracts Section have farmed but there has never been cultivation improvеments placed on it tract of have ever been no except “fix the are windmills fence.” There and have been watering Co., places Ry. on the H.&T.C. Section deeds, Survey petitioner’s acquired Davis father watering places dis but puted have windmills on the there been no *5 watering place tract. The from the nearest is about mile disputed tract.
Asked about number of he and his father cattle that grazed they enclosed, petitioner on the acres testified that 747.58
usually keep thirty something tried to “around cattle or like He that.” closure, testified that cattle were scattered all over en- questioned particularly and when say whether could he given definitely any year “at disputed there were cows on that any time,” give tract at any certain he answered: “I couldn’t months, say certain I but could I them have seen there every year; every you you almost time went over there could see them.” regularly paid Petitioner testified that father his his on taxes any his but that neither nor he his ever rendered father
part Survey (the survey of the J. Eustis G. No. in which the disputed lies) they paid tract for and that on taxes no taxes it. Respondent by petitioner offered in evidence the made rendition year 1952, for taxes for the are included Davis which Survey Survey part the Ellis but no the J. G- Eustis Survey 2,No. and in petitioner which affidavit that the rendition complete property full and list of owned all taxable or held county. explanation him in the the fail- Petitioner’s part ure on his on the his father to render taxa- pay tion or taxes on is that did not know Survey surveyor “this Eustis I was there until hired this * * * spring Respondents of 1951.” introduced in evidence receipts showing tax payment of the taxes the J. G. Eustis Survey including years, No. 2 the record for several owners years from 1931 to 1937 inclusive. bought Petitioner testified that his the land he when father got bought a deed “that to it. And he testified that his father fence, claiming over there that was under he that.” Interro- gated closely bought all his father about statement his fence, acreage bought you land under he “He answered: naturally buy fence, you expect would all that was under would buy present all of it.” He testified further that he was not “bought testi- when his father land.” Petitioner those tracts of fied several “that he times father claimed the land that his bought,” always claimed the land and that father all his tract, he did within the enclosure and claimed the but testify any any facts evi- such a claim or to assertion of dencing claim, it, tending prove or offer evidence graz- unless the of the fence and existence and maintenance ing may taken as evidence land within the enclosure claim. year sisters petitioner, mother and his about Survey, gas
executed Davis Sur- an oil lease on the Ellis
287 Co., 80, Ry. H &T.C. Section vey, tracts land and their lease covered of the river. tract and also on 187-acre south 2, thought they Survey and No. Eustis of the J. G. no they Petitioner testified owned. the land that included all lease gave money during his lifetime borrowed his father that any knew of instance security, he never land but that liens on any part included instrument that where he executed Survey 2.No. J. G. Eustis by grazing acquired limitation cannot be It title is settled 132, McDonald, 85 Texas Fuentes v. Brundrett,
unenclosed land. 43; Vineyard App., 147, 42 Texas Civ. S.W. 17 v. refused; Groppen 232, application v. writ of error Allison for 528, bacher, application for of error refused. 2d writ S.W. merely acquired cannot be And it is fencing true that title course farming putting grazing land or it or it it without support is the statute other use. When the use relied grazing, enclosure, also there must be at the same time sufficient give designedly such as to land enclosed evidence that the true owner. and to show assertion claim hostile to the Vineyard Brundrett, ordinary for 235. The case S.W. v. acquisition possession, title when use adverse grazing, claiming person title one in which the under enclosing land statute has a fence or and has built fences continuously maintained the enclosure grazing used land statutory during period. of fences Such construction grazing and use of the land for evidence of claim. afford hostile bring general Petitioner would rule. case within agree, however, We with the decision the Court Civil general Appeals that the facts of rule this case take it out of bring principle applied in the under the announced following cases, that when the tract of has been when, casually incidentally land, especially with other enclosed here, deed, possessor land is under other held grazing incidental the occasional straying cattle from the titled land will amount support such adverse and hostile use as will Refining Company, of limitations. statute Harmon v. Overton 555; 130 Texas 2d West Produc S.W. Kahanek, 328; Company tion 132 Texas 121 S.W. 2d v. Stewart, McKee Primitive Baptist Corp., Church Fla-Tex 2d 549. comparison
Discussion of the facts in cases and of their those opinion prolong facts with case us those of the would before Quotations unduly. cases, from two of the with brief' comment them, the rule about should be sufficient to show that support expressed. the conclusion we have *7 opinion The in Refining Harmon Company, v. Overton 365, 372, Texas following: contains the “It is well settled possession that when one enters into of land possession under a deed his deed, pre- referable to the and is sumed to conformity it, be in and is confined to the limits Therefore, thereof. in acquire order for by a vendee to title possession adverse adjoining of additional or land outside the limits of the conveyance, boundaries in his he must have actual possession of such additional such character as of itself give will possession notice of an exclusive adverse and mature * * * into title statutory period. after the “In this Cohagen instance there possession. was not such went possession into under every his deed and appropri- act of visible ation ownership upon acres, was the 9.29 and was referable to his controversy deed. The visibly was not fenced or occupied, only graz- use made of same was an occasional ing strayed grazing cattle which thereon while the 9.29 acres.” following The opinion is from the in West Production Com
pany Kahanek,
v.
132 Texas
2d 328:
newly
“The use
of such
inclosed land
the defendant in error
grazing
not,
itself,
cattle did
an
constitute
actual and visi
appropriation
ble
provided
in Article 5515.
v. Mc
Fuentes
Donald,
Cain,
85 Texas
Mhoon v.
The decisions from which the approval taken were cited with followed McKee Stew- art, 948. In that S.W. 2d case part controversy permissive, of the tract in that was not but creek, true of included in small area west of the which was casually in the exten- or as a matter of convenience possessor’s sion оf the fences. undisputed petition facts in the instant case show
er’s father entered into of the land within the en duly closed 747-58 acres under three deeds recorded that con veyed constituting to him several tracts of land the northeast According quoted of that area. the authorities above *8 many possession (and other petitioner’s posses authorities his sion which father) has been same the as that of is referable deeds, presumed to the conformity them, to inbe with and is them; confined to the limits of and in order for him to have ac quired by possession adjoining title adverse of additional or land outside the of the limits boundaries of the deeds he must have had actual of the additional land of character give exclusive, itself to possession. notice of an adverse disputed tract is in the extreme end southwest of the enclosed petitioner’s area. Between ac- which father by quired disputed deeds and the a area is tract of 60 which acres belonged to the State. Cattle on the deeded land could not reach disputed going area without across the tract owned watering State. All places of the are within the enclosed area land, watering and have place been on the deeded the nearest being tract, disputed about a mile from cattle so might come from the deeded land to the go mile, crossing would have to back about a tract owned State, in order obtain water. The land and the best best grass in the enсlosed area is within the of the deeded bounds grown rough, part up land. Much of the area is of it is cedars, grass only part average salt of it has quality. physical facts, according peti- On account of testimony, stated, tioner’s the substance of which has been a few average of the kept number 30 cattle within the oc- casionally went from the deeded land across the tract owned controversy, the State occasionally and onto the area in were seen there. part had no con- of adverse The claimants large fences that enclosed the area. Those fences
struction enclosing part and formed of the fence are now stood where acquired petitioner’s northeast father acres when the 747.58 By built of that area deeds. whom fences were They purpose were con- the record does not disclose. for what forming petitioner’s father and an enclosure which venient as belonged grazing petitioner them. the land that could use was, according controversy undisputed to-the Thus the area evidence, incidentally enclosed, casually occasionally and was used, and on the authorities cited and use were give exclusive, not of such character as themselves to notice of possession. adverse
Closely principle related to of incidental or casual en question presence closure is the or the absence of the right.” claim or “claim of Article 5515 оf the essential hostile “an Revised defines adverse actual Civil Statutes appropriation and visible commenced continued right under a claim inconsistent with and hostile claim (Emphasis added.) of another.” Jones, Company In Houston Oil Texas meaning carefully “claim the court defined the the words right” pointed It in the statute- was there out as contained notwithstanding the court held the use of these words has may trespasser acquire limitation and holds that naked title years of the words under the ten The court’s definition statute. *9 right’ simply refers is: “The of to which the statute ‘claim entry claimant must with the means that of the limitation be himself; own, hold it for intent to claim the land as his opin- possession.” The continue to be the nature of his such must right” element of adverse “claim of is an essential ion states that possessor to' claim the land possession. And intention of the by open must manifested his own or to hold it for himself be showing purpose. such or visible act or declaration proving the of adverse Petitioner had the burden of elements right.” possession, including In Moore v. “a claim of Wooten (Com. who seeks App.) it is said that “One 280 S.W. of limitation of the statutes to establish title to land virtue issue, proof must proof upon and this assumes the burden of Garcia, satisfactory.” v. S.W. clear and also Urschel be See 2d the true owner hostile to how exclusive matter “No unless adverse appearance, it cannot be may be occupant part to make on intent accompanied any of unаccompanied claim naked it so. right Step Company v. Houston Oil bar.” constitute will never of refused. 1084, application for writ error
ney, Mosley
303;
Waterstreet,
v. Gulf
Hopkins
S.W.
v.
also
See
Windham,
v.
Company, 111
Shaw
Production
Pullin,
Lyons
refused;
636, application
writ of error
494, 501
.
by open
right
by declaration or
must manifested
of
Claim
the land
no
assertion of claim to
If there is
verbal
or visible act.
knowledge
landowner,
posses-
brought
the adverse
open
open
and manifested
and notorious
sion must be so
knowledge
part of the
on the
owner
or
act or acts that
visible
Waterstreet,
presumed. Hopkins
Petitioner did claimed he and his father testimony pro tract. This is either a mental about expression opinion cess or of a “The mere or conclusion. right ‘claim the claim inconsistent with hostile to process’ possessor; another’ includes more than ‘mental in the discovering there must be ‘external inward circumstances *10 Rodgers, (Com. 731, App.) intention’.” Scott v. 734. S.W. Garland, 201, 206, also See Titel v. 1152. Peti Texas opinion tioner’s or conclusion he and his father claimed the that possessed land adversely open or it is not evidence of an or visi- adversely, manifesting land an intention to claim the act
ble by support a claim of limitation ad will that not evidence Cain, Texas Ur Mhoon v. possession. verse opinion or conclusion is Garcia, 2d 804. The schel v. open any acts in relation supported by visible evidence not controversy. external manifestations From its the tract to properly “could con 747.58 acres be possession of the enclosed tract) part of that (of to by be the owner sidered rightfully did not possessor his own land and asserted unambiguous quality essential have that clear therefore owner.” possession; of the true to the claim an adverse hostile Jones, 31 L.R.A. Smith (N.S.) 153. bought all the land father further testified that his
Petitioner meaning evidently enclosed fence, the entire was under that clearly opinion, expression anof This also is the 747.58 acres. nothing opinion by petitioner’s further more than an shown to be naturally buy under testimony “you all would it,” buy fence, you expect and is shown all further would pres- testimony he was not opinion by petitioner’s but an bought father made Petitioner’s the land. his father ent when part being northeast purchases in the all three distinct area, three different deeds from and obtained of the enclosed describing con- times, the tracts the deeds different vendors at any enclosure bounds, to' veyed by no reference metes any or effort intention is no evidence or to fences. There buy in the en- petitioner’s all the father to on the sup- only not expressed by petitioner opinion closure. The record; the record. it is contradicted ported Appeals is affirmed. juudgment of the of Civil Court Opinion delivered March joined by and Smith Justices Calvert
Mr. Justice Griffin dissenting. that, opinion matter agree majority as a I with the cannot plea petitioner’s law, raised there was no fact issue trial court whereby judgment
of limitation he recovered opinion majority controversy. The acres of land for the 56.85 sustaining the give any evidence probative force to that fails findings contrary, on but, seizes judge; the trial of fact of Civil judgment Court testimony isolated Appeals to sustain judgment. rendering reversing the trial court’s *11 necessary point up A recitation of the evidence becomes fallacy majority opinion. testimony The shows that in Orsborn, 1919, petitioner, purchased T. October оf J. father by warranty deed 160 of land known the David Davis acres Survey. Survey and of land known as the E. M. Ellis 150.5 acres possession deeds, under and the J. T. Orsborn went into fences, inclosing those pasture and of which took began using livestock, pasturing at his were located position time in the same were located at the time of the October, fences, time, trial of the cause in 1952- These at that since, pasture. and at all times formed an inclosure for The pasture land Davis was in the extreme east end of the and there dividing was a fence on the east this land from the lands Davis Ry. Survey. Orsborn, by T. Section H-&T.C. Co. J. warran- ty deed, purchased acres, being part the west out of Section 12, 1919, land, 80 on December and went into of said remaining tract, 8, 1921, purchased being and on November 120 acres out of the northeast corner of 80. The total Section acreage purchased by warranty J. these three T. Orsborn deeds was 800.2 acres land. The land inside the enclosure of surprising tract was 747-58 acres. It is not that when J. T. containing acres, Orsborn took 747.58 thought he should have that all of the land inside such enclosure description was contained in the a in his deeds. There was also Surveys fence there on north line and of the Davis Ellis separating Ry- Survey these lands from Section H.&T.C. Co. Lying west, adjoining Survey, the north. the Ellis was land, enclosure, which, 60-acre tract pasture included in the for the first time in This was found to vacant state land. be patented person was in 1951 to T. Mrs. J. Orsborn as purchase entitled to vacancy provision such undеr of Article (6), satisfy 5421c Vernon’s Annotated Texas Civil Statutes. To requirements “good of such article one faith claim- must be ant” occupying person which is defined in the article to using vacancy good ownership, such under a faith belief of person vacancy must have had the in his enclosure and good period years for a of ten in the faith belief West, adjoining that he was the owner thereof. this state Survey is the 56-85 title acres of J. G. Eustis No. litigation. Survey to which is involved in This Eustis pasture, possession is a of the enclosed of which was Orsborn, taken J. T. used and which he and Tom Orsborn have continuously grazing pasturage since 1919 for of their live- enclosing Survey stock. The north fence a continu- the Eustis along ation of the fence north the C. M. line Section Brown, Davis, Ellis J. E. M. and Mrs. T. Orsborn Sur- David veys. says “disputed majority opinion tract was together by petitioner
casually with the land owned enclosed State, all en- his father and a tract of land owned *12 fence, by petitioner father.” closed a constructed or his dispute There enclosure of is no that this land was the but pasture J. T- Orsborn and Tom Orsborn who succeeded to the majority lays opinion also after his father’s death in 1933- The conveying warranty the east stress the fact deeds that the Brown, consisting pasture of C. M. D. the of Section Surveys of Davis and E. M. make no mention the fences. Ellis propo- I take it cite to the there is no need to authorities sustain pass conveyed sition on lands under that all located the fences Beginning deed, specifically excepted at the unless or reserved. being cor- the northeast corner of the northeast Section enclosure, the ner of the fence of the Orsborn north (fenced side) a on north south lane the constitutes the fence of length dividing of their common 80 and the entire Sections at boundary; is the thence this fence extended westward north Brown, along Davis and same north line of variation the the Surveys point the J. T. Ors- Ellis to a the north line of Mrs. on midpoint Survey, beyond born which a the of is short distance Survey this north of T. and also short line the Mrs. J. Orsborn Ry. H.&T-C. distance east of the corner of Section southwest point (which west). Survey adjoins At this Co. 81 on Section the changes the as to run north fence its variation a few minutes so northwest, a little to the so when the fence reaches more that Survey, of the it is 8 north the northeast corner of the Eustis feet ground by survey made true corner as located on the the disputed the the north At northwest the tract where corner of Crossing Lane, fence Bird intersects the fence of Red east the the the the north fence is some 37 feet line between north (which adjoins on the Survey Eustis Section 88 Section 89 west). .62 of an As a result of error in there is variation enclosure, pasture acre of within Section included the Orsborn suit, party but the owners of to this Section were not The western title .62 of an issue. extreme that acre is not in pasture east fence of what enclosure of the the Orsborn Crossing called Red Bird lane. is fenced on the west lane This also, divides, segregatеs, acres of side and this 56-85 lane Survey Survey No. 2 Eustis No. from the balance of Eustis Tending along north line prove that fence west. enclosing disputed purpose tract was erected for tract extension such fence is the fact Crossing lane some 60 to Red Bird begins side of on the west pasture fence of the Orsborn intersection north of the feet westerly fence, proceeding makes farther east with the lane’s change the west line so in variation intersects material corner of feet north the southwest some Section my mind, the north fence this shows 89. To Section 89 from the Ors- erected to divide Section was not but, contrary, was erected enclose pasture, on the born the east pasture. north fence from The variation of this Orsborn Crossing a few minutes of the varia- lane is within to Red Bird west of the lane line of while tion of the south Section greater. Had the owner of 89 been much Section variation is erecting it is clear to me would have to enclose his fences way put all on his south line across the tried to his fence along Bird Red 89. The erection of two fences south of Section Crossing lane also to me that the owner the Orsborn shows segregating consciously pasture pasture from the land being Survey. on farther rest of the Eustis the west testimony the death R. is to the effect that until of J. Ors- *13 thought 1933, purchased by in he the land which had born he all in enclosure. deed included the land his T. land
J. Orsborn never knew the vacant state inside his death, Orsborn, Tom until enclosure. Since J. R. Orsbom’s thought all of wаs included in the the land in their enclosure father, deeds to Mrs. T. All of his so did J. Orsborn. the east boundary suppose fence is the east deeded and I consciously no claim can or will made that such fence was not segre- pasture, built to make the and to east fence of the Orsborn gate (adjoining in Orsborn land from the land Section east). only Section on the the south fence enclos- This leaves ing Beginning pasture. the Orsborn corner of the at thesoutheast pasture, being gen- in line that fence east of Section erally joins the follows the Brazos River until it meanders of the Crossing east fence of Red Bird lane at the south comer.
testimony portion is to fence has been the effect that a this repaired washed out and but, otherwise, farther north since moved also in the 1919. There is same location as in testimony changed places in that river so that has its course body leaving it is farther south than it a wider was in thus of land south this fence and north river than there persons 1919. The evidence who could have shows no other building been interested in fence of the save this south testimony pasture. owners of There is Orsborn effect that T. times J. Orsborn have at all and Tom Orsborn repaired since 1919 and that maintained and fences these outside away they repair when the south fence would wash replace would get testimony soon as could to it. it as This is un- disputed- testimony, undisputed, There is is- that out- which (except out) side at all when fence times washed has been suffi- keep Also, undisputed cattle. cient to Orsborn’s there is testi- mony person pasture that no other has used this entire en- Orsborn, except closure from 1919 to the time of trial tenants his dispute and workmen. is no There but Further, has had been continuous. Tom Orsborn has Orsborn many testified times the fact father claimed all the that his fences, death, he, land inside the Tom, and that since his father’s claimed, claiming, had and at the of trial was all of time opinion says majority the land inside enclosure. The these Nagel Kiibler, al, are statements conclusions. the case et 1009, ref., n.r.e., it is stated: person “It is the settled law in this that declarations of a state though property, made while in serving nature self- their hearsay, explain are the nature and admissible to character his interest of his and to show the extent of holding. Jur., p. and the character of his 17 Tex. Sec. Burroughs, App., Smith v. 2d 364. Tex. Civ. Beck, appellees, appellee “A witness J. F. son of William Beck, F. testified several occasions on direct examination say heard his involved in this father that he claimed the land suit- He was made F- Beck stated declaration Wm. separated by adjoining on a tract land at a residence controversy. fence from cannot, “Appellants’ It is contention we think be sustained. person made while rule that the declarations of a the established in explain property the nature are admissible Beck possession. F. and character of his At the time William *14 property, he made the statement to his that he owned said son period proрerty, of was in the and had used it for of years.” 521, 242 Green, of
Also the case Gilbert subject 879, witness, Parsons, holds that when sworn testify cross-examination, competent as to whether was possession, and could ownership claimed at time he was the no by contradictory There was impeached prior statements. owner- objection any to claims of statements as made to of the testimony was by Orsborn, ship much of such T. or Tom J- by the cross-examination elicited from Tom his Orsborn of the claims respondent, questions the as to and in answer to Orsboms, up until respective undisputed the It is Orsborns- thought 1951, the 60 acres vacant survey made in was deeds, description and that of the in the land was included state land was the same as possession of such state use and their Belonging State, per- no title could be to the tract. cross-examination, Upon by to the 60 acres. limitation fected appli- (defendant below) respondent introduced in evidence purchase by T. this vacant state filed Mrs. Orsborn to cation land, J. by supporting made Tom Orsborn as to and the affidavit application possession. Mrs. In Orsborn states his mother’s J. T. Orsborn for “this land has been claimed and used Mrs. during period past twenty-five years and that time during grazing purposes T. was used Mrs. J. Orsborn partial fence.” In has under fence or all of the above time been affidavit, says accompanying past Tom Orsborn “that for the Orsborn, twenty-five years Mrs. J. T. mother of the the said using grazing affiant, purposes has said land for and that been during wholly partially period said land been or fenced said has recently gas of time. That until said land was leased for oil and belonged affiant and his mother explained He believed said them.” only sides, that since the land fenced on two “wholly partially words fenced” were used. significant bearing
Another fact as on the use and 8, of this tract the Orsborns is the fact from March 1923, warranty conveying to the date of trial various deeds Survey title to Eustis No. 2 had been executed as follows: 8, 1923; May 9, 1923; August 20, 1928; March 8, December 1928; 29, 1932; 4, 1938; 12, November October October 13, 1939; July January 8, 1941, Long', to C. B. the owner of the Survey surface of the Eustis 2 at the No. time of trial- The evi- grantees warranty dence shows that none these nine any any part had deeds Survey ever asserted claim to Eustis pasture any enclosed or had Orsborn ever made challenged disputed tract, ownership claim to said or ever Upon cause, Long, same the trial the Orsborns. of this C. B. January the owner since of the record title to the dis- puted tract, filed a disclaimer title or interest in this dis- puted tract. claiming this case the were Orsborns title to the 56.85 ten-year Survey by virtue of the Eustis statute
acres Article Vernon’s limitation. Annotated express provisions Statutes. Under of Article Civil enclosing a a fence tract of land of less than 160 acres is not necessary title, provided requirements other recover *15 only are 56.85 the above Articles met. There is acres of land suit; therefore, necessary. involved in this is enclosure enclosure An is a circumstance to and use and show adversity claim, hostility and is also circumstance as right. Smith, claim As in said Richards v. enclosure, 571: “We do not think an actual fence otherwise, give necessary posses in all cases to an exclusive * * * sion. When the acts done tract of land are such as give unequivocal persons it, all notice to of a claim to adverse others, accompanied by all and this an actual character, exclusive its then limitation will run in favor of asserting person enjoying so adverse claim and an exclusive began, occupancy from the time such exclusive wheth Fisher, er the land is enclosed or not.” In Brown Tex. Civ. App., 357, 361, the court reviewed the decisions and carefully authorities, observed: “We have examined of these each they appellants’ that we find do not that sustain contention necessary an actual under all circumstances is to con court, stitute adverse of land. It true that discussing question posses each of these cases of adverse sion, strongest stated an enclosure land toas one possession, evidences <m adverse and exclusive but the court say indispensable did not in either case that an enclosure.was possession.” in order to constitute adverse 2 Tex. See also Jur. Sec. 2 C .J .S. Sec. 26. Enclosures have been held necessary to pasturing sustain limitation claims based on grazing land. Public lands are considered “commons.” Hankins, vicinity
J. B. who lived in the of the land since place testified the outside were in fences the same except rеplaced by were as washed out and Ors- born, any apprecia- and that the fences had not been down for period time; Orsborn, during lifetime, ble T. Mr. J. Ms death, and since his Tom Orsborn Mrs. Orsborn had used pasture grazing for their livestock. He also testified that “just ranged pasture.” Further, cattle Orsbom’s all over the (the Hendrix testified he “didn’t know there tract Survey) (lawsuit) 56.85 acres out of the Eustis until this came up.” during dry years Hendrix also testified that some had permission driven his cattle with Orsborn’s across Orsborn’s pasture water, permis- to the river for and had with Orsborn’s put gates (for taking river) sion in some use in the cattle to enclosing longer in the fences pasture, he no Orsborn’s and when gates needed up these he had closed fences. Roy Day testified he known this had years, “bought prior
to 30 it.” He to the Mr. time Orsborn *16 “quite from a bit” ranch hand as a Mr. for Orsborn had worked death, and since until Orsborn’s “beginning Mr. in the 20’s” tract, and on cross-exami- cattle the on he had seen stayed pasture testified in the the cattle as to where nation that this tract All of the evidence shows “they over it.” went all agricultural for rough, not suitable uneven of land is testimony, according have, the to only could use it purposes. The testi- grazing purposes. There is pasture and a be as would com- are portions of this tract mony west north and the to hills, occupy one-third one-half from posed of which small (except hilltops) is tract, there on this on even the but that “gamma grass,” mesquite” grass,” “mixed “scattered “bunch regard are is that grass.” testimony to salt cedars The “you river, 56.85 acre tract don’t the in the bed of the to get way you from half down about have salt cedars until opposite (evidently point east bed) a the river to there the The south fence excludes the comer of the 56.85 acre tract.” attorneys respondents’ river from the enclosure. One of the river, and testified that the salt cedars were in the scattered grass hills, groups in the on the and from foot of hills very heavy cedar some direction of the river there was grass. grass vegeta- testimony The of other witnesses as to part on is tion tract is that the lower there covering good grass; flat about of the which has half tract vegetation except pasture, is about like the rest grass pasture middle has better than the dispute. possession” party occupying
To constitute “adverse way appropriate purpose land must in some the land to some adapted. Hardy Bumpstead, App., which it Comm. 226, 227, (4-6), Wright, A.L.R. Nona Mills v.
Texas “* * * determining it is evident that what will amount to importance an actual considerable must be applied, attached its and to nature which it can uses be may apply or to which the claimant choose to it. What adverse thing populous country, thing is one in a another sparsely thing one, settled still a different town or * * * village. governing regardless questions law, premises, every case, character of the are the same in but question may presented by great variety of fact evidence in a according ways, general to the circumstances. As a rule will if be sufficient the land is so used claimant adverse apprise community locality in its it is ex- in his enjoyment, put elusive use and and to inquiry the owner on as to and extent of rights; nature the invasion of his and this is especially property true where is so situated as not to admit permanent improvement. of ports cases, if the com management with the usual of similar lands their owners, it occupation, will be sufficient. Neither actual cultiva tion, necessary nor residence is where neither the situation of the property adapted nor applied of, the use to which it is admits *17 requires, or ownership.” such evidences of 1 Am. Ad Jur. Possession, verse Sec. 131.
To State, 139; the same effect see Heard v. 146 204 Texas (5) ; Refining 2d 344 Co., S.W. Price v. Humble Oil & 152 S.W (10, 11), ref., merit; Long, .2d 804 App., want of v. Wallis Tex. Civ. (loc. col., Young 75 top p. 142); 2d ref. S.W. cit. 1st. City Lubbock, (2, 3), v. history. 130 2d 418 S.W. no writ require “cultivate, does not that claimant use statute enjoy” only requires the land It claimed. that he do one three; i.e., “cultivate, use, enjoy.” Webb, Tex. Hess v. Civ. App., 111; (11), 113 618 affirmed S.W. 103 Texas Cartwright, App., (1), McDonald v. Tex. Civ. 2d 337 S.W. dismissed, want of merit. Liverman, 417, 419,
In Caver v. 143 Texas 2d S.W. (3, 4), Court said: rough
“The land was that it to travel so was difficult for cattle it, grass Nevertheless, over and there was little of it. but grazed Crawford testified that cattle on the land and that he This, off evidence of ad- cut wood it. we think constituted some statutory period. verse of the land for the McDow v. 154; Moseley, App., Rabb, Moran v. Tex. Civ. S.W. (Emphasis added). 2 Tex. 91.” Jur. Wingfield Smith, 531, ref., In the v. case partly pasturing en- claimant to the land land which was A title was sustained. closed another’s fencе. limitation Skeeler, Company In Houston Oil of Texas v. sustaining court, judgment history, for de- in no writ ten-year claiming limitation title under the fendants who were fences statute, says: who built the “The record does not disclose particular for helping land nor what to enclose the tract of thus fences, that built, record does show purpose said were but twenty years had defendants) or more appellees (winning good repair kept with them looked after said fences owners, does but the record adjacent property help possible right appellees claimed anybody other than that not disclose said fences.” or use of n.r.e., Morris, 586, ref., case Nelson In the Supreme approval Court Caver
and cited with claiming they Liverman, appellants were entitled supra, were against claimant for the the limitation instructed verdict to an following reasons: should have received instructed
“Appellants contend comprising undisputed that the deeds because verdict Perryman controversy; do the land not embrace ranch Perryman lying and north of land in contro- ranch west controversy by separated from the land versy was never grazing, Perryman ranch could enter cattle on the and that fence graze; controversy and the land in controver- land in on the sy rough deep extremely breaks and ravines because roughness except on foot or horse- it could be traveled its any prior Perryman ; appellees owner nor ranch back am, did not construct the land that effect fences *18 Perryman controversy pasturing in with the ramch. That the give on land is not to limitation. There livestock sufficient title nothing Berry was claim of his land to advise adverse right predecessors perfect because and to run Morris his had they pasture, required stock in that were not build a fence to neighboring keep cite around that land to stock off authority following citing cases,” the authorities. absolutely necessary do not find it in “We order establish year surrounding the title under ten that fences the statute the property ing question person in claim should have been built (2 Jur., p. 88, 46),
limitation Tex. the law well Sec. but state, including 5515, R.C.S., established Article year effect that order to establish title under the ten statute appropri adverse must an actual visible land, commenced ation and continued under claim right another. In inconsistent with hostile to the claim of title, order that the true owner will establish knowledge claim must have actual nature of hostile visible, open, or the so notorious hostile must be presumption to raise the that the had notice that owner rights being intentionally purpose were and with invaded asserting Stepney, Oil Co. adverse title his land. Houston v. 1078; Holland, App., App., Tex. Civ. 187 Tex. Civ. Burton v. S.W. 252; Fogle 301, 141, 278 219 Baker 110 Tex. 217 S.W. S.W. v. 415; 450; McKee, App., S.W. v. Civ. 150 S.W. 2d Stewart Tex. 302
Young City Lubbock, App., 418; v. Tex. Civ. 130 S.W. 2d 2 88, 46; McAnally p. Company, Tex. sec. Jur. v. Texas 124 Tex. 196, 997; City Peck, App., 2d Port v. S.W. Co. Tex. Civ. 275; Sullivan, 2d App., S.W. Johnson v. Tex. Civ. S.W. Lyons, App., Monroe v. Tex. Civ. 2d 90.” S.W. following sufficiency cases also discuss en necessary closure and whether or it is nоt same be built possession. Taylor, 80, claimant 265, Dunn 113 S.W. col., p. 268; Ogletree Evans, 804, 2nd ref., n.r.e.; City Peck, 275, history Port Co. v. no writ (claimed ; pastured) land enclosed with others and Masterson Pullen, 537, history; Ritter, v writ no Sharrock v. history. no writ quoted
I effectively believe above and cited authorites majority opinion’s answer the claim no there is evidence comply of an terms of Article Ver- Also, non’s Annotated I Civil Statutes. answer the believe showing testimony contention that since there no who built fences, Orsborn’s case is weakened. Next, holding majority’s I will discuss the there is no probative occupation, enjoy- evidence of force to show use and right, ment under claim of adverse and to the hostile true already quoted testimony owner. I have of the witnesses on questions repeat these so I that. shall Article Vernon’s Statutes, “peaceable possession” Annotated Civil defines as “such interrupted by as is continuous and not suit to recover adverse All of estate.” the evidence shows there was no suit filed until all of the evidence shows the Orsborns had con- pasture tinuous of this from date 1919 to of trial by any fact is This not controverted evidence. Article Statutes, possession” Vernon’s Annotated Civil defines “adverse *19 as appropriation “an actual and visible land commenced of the right and continued under a of with and claim inconsistent hos- tile to of the claim another.”
Judge ton, Stay speaking Court, of for the in case Rich Smith, 571, says: ards v. “The facts Texas must clearly claim, nature, show the adverse and from as well as an its possession, exclusive cm substantial which of permanent character, accompanied in use as the with such land adapted, to, is satisfactory (Empha is the most evidence.” often added.) sis land are Where the a tract of acts done give as to unequivocal persons an it ad- all of a claim to notice to accompanied by others, an and this is all the claim verse character, then limitation will its possession, in exclusive actual asserting claim, en- persons adverse so in favor run time such exclusive occu- possession from the joying exclusive or enclosed not. began, the land be pancy whether quotes Cartwright, from Craig this Court v. 65 Texas In 94, 112, “It Saffold, as follows: case Charle hun possession for six will secure title appears naked thus enclosure, or two forty or one thousand acres without dred and enclosure; under which the circumstances thousand with right, altogether immaterial possession is taken are the provided adversely occupant others. himself and claims for wrongful seizure, may pos if matter tortious No how statute, give for the time limited it will continued session be ** * open claims; question preclusive all is made or is no title possession.” In dis the bona or mala relative to cussing fides fides says: claim the Court then “Posses of adverse evidence rights sion, pertain to of such an owner exercise alone, claim, in must be deemed evidence of adverse sufficient indicating in of some evidence that it is held subordina absence real tion to the owner.” title Refining White, Company
In case of Tex. Lion Oil Civ. judgment upon App., 138 the court reversed plaintiff judg- (White) verdict for the and rendered instructed parties title ment for the ten-year Both claimed under the defendants. discussing court, statute of limitation. The whether possession adverse, says: or not
“Appellee further contends that does not evidence show predecessors John R. Williams’ was ad- do not sustain that verse. We contention. Hartman v. Hunt- ington, 562, 563, App. Civ. Tex. rule here following language: applicable expressed question is in the “The whether or not a mainly adverse to owner of is the land is holding particular law, If of fact. one is adverse it is fact, necessary so because is adverse and all is in order give question reach correct decision such a is to to the proper effect, just facts in their to determine what evidence prove. person Ordinarily, when a do, enjoyed usually to have it as shown used owners lands natural inference that his was taken and held owner, and that it was “therefore inconsistent for himself prevails with and claim of This hostile to the another.” inference *20 something unless else qualify explain is shown to pos- ” session.’ Court, Glengarry in Co., This v. 626, White Oil 137 Texas 627, 523, adopted opinion 156 S.W. 2d of A Section Appeals Commission of part which affirmed in and reversed in part. However, regard ap those defendants who were pellants in Appeals Court of opinion Civil states this approved reasoning; Court sup of Appeals of Court Civil porting judgment appellants. rendition of for the Lyons, 90, ref., In the case of Monroe v. of S.W. want merit, court, affirming in judgment claimant, for a limitation says:
“Appellants position take the there is an entire absence Clayton of adverse claim on of William Smith premises occupied, that he if it pos be assumed that he was in session of the lot and house located it. think has We it beyond become in established this state in cavil that one actual possession period of statutory years, land for the of ten explain absence possession, of evidence to his or to show alleged disputed, it or that fact of the true, presumptively was not the claimant of the title. other words, a imputed by constructive claim is reason of Angell Limitation, 31, Chapter under such circumstances. quotations Sec. 2 Tex. Jur. A Sec. 57. from few short adjudicated premises proper: cases are considered ‘Possession usually title, presumption carries with it the claim operates sense notice to the true owner that title is disputed.’ Boy McDowell, App., v. Tex. Civ. presumption law, “But in an actual must re garded as adverse to all other or claims than that of titles
possessor,
recognized by
or such as have been
him. And when
party permits
maintained,
ever
such
to be
he does
peril.’ Gillespie
Jones,
Supreme
so at his
v.
132, as follows: “ ripens, primarily, only because, ‘The title limitation period such manner and for time the different statutes require, given notice is claim- the three the hostile Under years statute, by possession under title or color is afforded ” statute, years simply by possession.’ title. Under the ten
305 641, dismissed, Moore, writ the 38 v. S.W. In McCabe judgment a an instructed Appeals reversed court of Civil in The claimant was the record title owner. verdict in favor of controversy possession of 23 in under the acres The Court which claimant had record title. a 48-acre tract to Appeals held that evidence established claimant’s the Civil grazing was used for title as matter of law. says: purposes only. The Court plea by 10-year sup
“A
of title
statute of
is
the
limitation
by
ported
required period
for
and claim of owner
deed, although
ship
under
the deed does
include the dis
puted
Washington,
368,
1104;
Tex.
tract. Bruce v.
80
15 S.W.
(Tex.
App.)
318; Daughtrey
Henderson v.
284
Nelson
Civ.
S.W.
(Tex.
947;
App.)
v. New
Land
York & Texas
Co.
Civ.
61 S.W.
Sternenberg
(Tex.
App.)
Houston
Co.
Oil
v. Olive
& Co.
Com.
534;
125,
222
rule,
S.W.
2 Tex. Jur.
Sec. 65. So under this
appellants
fact that
held adverse
of the 23
under
acres
the belief that it was included in their deed to the east 48 acres
survey 18,
they
perfected
it,
had
title to when in fact
embraced,
it
essary
deprive
any
was not so
‘does not
it of
element nec
support
plea
Jayne
(Tex.
of limitations.’
v. Hanna
App.)
And,
Civ.
51
appears
appellants
since
S.W.
by
fence,
took
all
land inclosed
which had then
years,
been constructed for
ownership
more than 11
and asserted
of the
period
trаct within that
inclosure for an additional
years,
of more
14
than
their claim of title
limitation
sustained, although they may
testified on the trial
have
they
effect never knew
land was in their inclosure ex
cept
48
acres described in their deeds. Sanders v. Moore
(Tex.
App.)
Civ.
(writ ref.).”
157
S.W.
In the
Stewart,
case of
v.
McKee
(4),
Court,
discussing
this
claim,
says:
an adverse
true,
“It
Appeals,
as held
the Court of Civil
that from
actual
enclosing
land evidenced
pre
fences
it a
sumption
adversely
arises that
it is
person
pos
claimed
Thompson
session.
Richardson,
v.
App.,
;
Tex. Com.
952
Boy McDowell,
v.
App.,
Tex. Civ.
presump
tion, presumptions fact, like other may Boy be rebutted. McDowell, App., Tex. Civ. Hartman Hunt ington, App. 130, 11 Tex. Civ. (Application writ of refused). Judge error Williams, referring in the case last cited to presumption or inference of hostile claim drawn possession, prevails proof of said: ‘This inference unless
from ” something qualify explain possession.’ else is shown to nothing qualify explain pos this record There is any theory other than that the Orsborns on were session claiming claiming years had been same for 19 prior mineral execution of the first reservation on the to the years prior Survey for some 28 Eustis No. 2 gas Survey oil and lease execution of first Eustis No. *22 filing 1951, Up 2 this suit in in 1947. of Orsborns had years, possession of tract about 32 and no one had ever had Surely, dispossess them. it cannot contended that tried to be such long enjoyment destroys presumption possession, and use of right of as above set out the abоve authorities. For claim holding Cain, 316, see Mhoon v. 77 Texas other cases of similar Gribble, 24; App., Humphreys Tex. 227 2d v. Civ. S.W. S.W. ref., n.r.e.; County, (3, 4), Tex. Dortch v. Sherman Civ. Young history; City (2-5), App., 212 2d 1018 no writ v. of S.W. ; Lubbock, Long, supra; supra, (7-10) v. Churchman v. Wallis 960, Rumsey, 2d ref. of want merit. S.W. Broughton Refining Co., 105 v. Humble Oil & case of S.W. The refused, ten-year case, 480, authority is for statute writ
holding delivery by and of a mineral lease that execution record possession position not did affect owner of land not actual possession years, plaintiffs had been in adverse for six be- who being possession, reason of cause record owner’s constructive owner, plaintiffs possession under ad- ceased when took record running interrupt claim, only and ouster suit could verse limitation statute. proved by may circumstances of claim be Adverse Shuttleworth, property. Orman v. 201 S.W. 2d use
ant’s 69, history. writ no charged is with notice of its loca owner of land record ignorance boundaries, for not excused will tion right premises held under his are
particular claim of which Scanlan, 222, possession of them. Brownson v. those Lewis, App., (2); 2 Tex Randolph S.W. 795 226; v. Com. Richardson, 63; Bro. v. Tex. Civ. Jur., T. Carter & W. Sec. App., 225 aff. (75 reasoning Long, supra, v. in Wallis I think right regard adversity possession under claim of
141),
applicable in this case.
particularly
by Mayes
used
chil
inclosure was
his
“The whole
pasturage
dren,
at all
for
their descendants
times
being
facts,
if an
owner of the 519-acre
their cattle. Such
during
gone
period
land
time
from
tract had
on that
at
period
jury
fixed
as the
in which
found
appellees
undеr
had adverse
the five- and
ten-year
(Vernon’s
of limitation
Ann.
statutes
Civ. St. arts.
gotten
only
by crossing
5510), he could
on the land
have
natural or
sufficient to
artificial barrier
make
large
exclusive;
the claimants of the
inclosure actual and
inclosure,
and if he had
all around
continued
would
have
found similar barriers
entire distance. He would have
Mayes
also found
cattle with his brand on them all over the
pasture
occupying any
found
would have
no one
land in the
having any
Mayes,
inclosure or
cattle thereon other than
children, and
devisees.
do
think
We
it can be doubted
actual,
appropriation
that these facts show an
visible
by appellees.
enjoyment
The use and
necessary
of land
to make
its
only
adverse under our limitation statutes is
adaptable
being
which the land
capable
used,
Bil
lingsley
(Tex.
App.)
Houston Oil Co.
Civ.
Taylor (Tex.
Dunn
App.)
undisputed
Civ.
See the case of 702, ref., Chittim v. 219 n.r.e., S.W. 2d Appeals wherein the Court of Civil judgment reversed a for a record judgment owner and possessоr rendered for the claim ant of a inclosing 52.7 acre tract inside Chittim’s fence other also, lands and which predecessors Chittim and his in title had mistakenly thought was included description within the con tained in purchase. their question deeds of of limitation title question the main on which the Court, cause turned and this by refusing application error, n.r.e., for writ of necessity approved the action of the Court Appeals reversing Civil rendering the cause.
308 necessary not for a 10-year claimant of
It is land under the deed, conveyance. or other statute to have Anally instrument of Mc Co., 997; v. Texas 76 2d Black v. S.W. County, App., Terry (5), Tex. Civ. 2d S.W. no writ his tory. St., Ann. require
Article Vernon’s Civ. does that against pay the claimant the taxes the land claimed. Whether pay only did or not he the taxes is admissible as a circumstance regarding property his and claim to his own. It raises fact issue determination the trier of facts. Holland, App., of Texas v. Tex. Houston Oil Co. Civ. 196 S.W. point, 668, reversed and remanded on another Manning Company Kansas, v. 2d Standard Oil S.W. dismissed; Lynch Beasley, 2d Davidson & Co. writ history; Hornsby, 877; no writ Saunders ref., of merit. want raised, holding majority fact issue is
Upon the that no Doherty, following cite authorities: Pearson v. I would 453, (4), says: wherein Court Texas “Doherty evidence case entitles him contends this awarding judgment him the title this to a conclusively did not ad- that Pearson claim because shows against owner, versely therefore shows the true real acquired the Ten Year has not title Statute that Pearson opinion contention. our the evi- overrule this Limitation. We question fact on the in this recоrd issue dence contained raises Pearson, possession. true of deposition It is' adverse claim trial, trying that he was not taken stated before it, away those owned at the trial this land from who but take he had never acknowl- Pearson testified that since 1925 itself edged person himself than other owned always record claimed it for himself. The *24 that since 1925 had Luhning, presents question. fact v. Stewart this condition 824; Williams, 23, Tex. Civ. 134 131 2d v. Texas S.W. O’Meara App., 2d 66.” 137 S.W. 490, Grogan-Cochran Co., 143 Texas Lumber
In McCall v. 677, says: 2d this Court 186 S.W. preclude the fenced not tract was not
“That the 84-acre does If the limitation it. 2 Tex. Jur. 90. assertion limitation title marked land to defined and use of the claimants’ sufficiently not, peaceable, boundaries, were fenced whether 309 give open, and adverse to fair notice of the notorious extent length hostility their and obtained for a sufficient claim time, requirements statute would be And satisfied. question whether there was such use here was a jury for the to decide. support proofs peti-
“The
tend to
the limitation claim of the
part,
all,
at
least
if not
tioner
84-acre tract. The evalua-
jury,
of the evidence
for the
tion
was
to which
issues of
arising
limitation thus
have been
should
submitted.”
course,
facts,
I
Of
realize each case must rest
its own
authority
holding
I
and while believe
there
abundant
proof,
law,
recover,
the Orsborn’s
as matter of
entitled them to
I am
support
position
sure that the authorities
that fact is
by
following
sues were made
I
cases,
the evidence. The
additional
believе,
Vidaurri,
bear out the above statement: Bruni v.
140
138,
81, (7,
13);
Texas
166
White,
S.W. 2d
12 and
v.
Greene
137
361,
575,
Texas
(1, 2) ; Vergara
153
Myers,
2d
S.W.
v.
Com.
App.,
310 party prevailing most to the considers the evidence favorable Hotel, 139, the trial court. Blanks v. Southland 149 229 Texas 357; Hickman, 439, 149 2d Hickman v. Texas 234 2d S.W. S.W. ; Drug Lewis, 609, 410 Renfro Co. v. S.W. Elick, A.L.R. 2d Schiller Texas majority opinion, evidence, ap 997. in its evaluation of the The plied exactly opposite the view the to above authorities. grazing i.e., cattle,
I the the do believe use to which put “you this land was incidental. evidence Orsborn There is that you every the cattle down there time on saw were the ranged tract”; pasture”; Tom that the “cattle all over the that looking Orsborn, hands, pasture pasture rode that after the every weeks, from there twice a week to two and Tom saw cattle grazed every cattle on the tract. The time was pasture. the land in trial this the same as on other the The grazing horses, of land “for mules found that the use court temporary lands” not an incidental or and cattle the was open appropriation use from 1919 an use and was visible filing of the suit in to recognizes majority that the cases of De Las Fuentes v. The others,
MacDonell, 43 and cited connec Texas graz only authority therewith, proposition for the are tion comply ing or use not sufficient to uninclosed lands is the we have requirements of statute. this case do not with the land, To inclosed lands- avoid effect of we have uninclosed case, majority lands, in this seeks as shown inclosure of designed engraft requirement upon law— of “a a new Brundrett, Vineyard 17 Tex. Civ. the lands. of enclosure” App., 1927) ref., (writ prior error denied holding. authority such It true case was cited as is by against the Appeals and rendered reversed Civil Court 5-year statute, and on account claimant under limitation adversity insufficiency and hostili to sustain evidence reasoning possession. the Court is ty of claimant’s The follows: greater were
“By boundaries shores far nothing relied on or indicate that were used bay, desiring keep person access there- out to inclose by any the assertion not such as to show inclosure was to. The indeed, owner, nor, toas the true hostile to claim one designedly fact inclosed. that the give evidence barriers, only artificial barriers bay natural were shores on the inclose the land other side the fences built were erected *26 being they used to nothing were that them, to indicate give controversy. fences To effect the the land inclose bay land, must have been acts the there an inclosure shores as they The arti- indicating relied on as such. were distinctly that notify public that the the sufficient to must be ficial barriers Bruma'gim Bradshaw, 24. Cal. appropriated. When bay shores, size the extent of the the consideration we take into others, and the facts that the fences tract, the inclosures controversy, lands than those inclose other made to were the claim title to all the land within did not the defendant that inclosure, clearly form the evidence is on to relied the barriers support years’ bar of five the to show a insufficient limitation.” course, claimant, upon relied his deed and
In that case the applied requirements rule his case. The as to “color of title” five-year possession under the statute are the same as under the ten-year statute. case, In the 139 Texas McKee Stewart court, jury, judgment trial without had rendered ad- the clаimant, Appeals
verse to the limitation and the Court of Civil judgment had and remanded. reversed This Court affirmed the upon of the trial court. The was decided the case basis that a introduced, fact the issue was raised evidence and that the finding against suing. party trial court’s was conclusive the This agree expressed by Court said: with the conclusion “We Appeals question Benjamin Court of Civil that whether actually cultivated, enjoyed used or Roberson was, 4.4 acre area evidence, under the issue of fact that the trial finding cultivate, enjoy is, court’s that he did not use or it if material, against upon ques- conclusive defendants in error present case, tion of their asserted title limitation.” In the upon establish, law, the McKee case is relied as a matter of cultivate, enjoy did disputed Orsborns use or by pasturing say authority tract I same. that case is that a fact bar, finding issue was raised in the case at trial court’s cultivate, enjoy disputed that the Orsborns did use or tract is against respondents conclusive herein. Refining Co., Harmon v. Overton holding that, S.W. 2d is relied for the as a law, judgment matter of should be rendered in case for respondents. entirely That case has different from our facts case, by reading case, reading as can be seen and also Appeals’ opinion Court of Civil in 81 S.W. 2d the Harmon undisputed case claiming facts show that Harmon was disputed his deed covered the tract of while in our case no claim is made that the of land. disputed Orsborns’ deed covers the tract reсognizes Everyone Survey the Eustis in- is not cluded in Orsborn deed. The Orsborns claim that went thinking into tract was included entry their deed. right” This is their “under claim support their case, limitation claim. In the Harmon was owned the vendor deeded who the 9.29 acres of land to predecessor original Harmon’s in title. The vendor and the ven- *27 predecessor dee who actually desig- was Harmon’s in title had ground tract, agree- nated the lines on by the of the 9 29 and acre ment ran the line of the east 9 29 acre tract so as to exclude the original disputed agreement tract. The vendor had later made an respecting disputed whereby the tract Pool one and wife entered possession disputed tract, and took and built a house thereon, occupying and were such house at the time of trial. This years occurred about five after Harmon had received his deed Cohagen, original grantor from one who was the from Maxwell. Further, Cohagen testified on the trial of case on cross-exami- the nation disputed had never claimed title to the tract original peti- had never sold to In Harmon. the Harmon case the only sought recovery tion anof undivided mineral This interest. reversed Court and remanded the Harmon case. the case at bar, no one entered the Orsborn inclosure and took disputed the tract. All of the evidence is J. T. Orsborn from claimed, cultivated, 1919 to his death in 1933 had used and en- joyed disputed tract, heirs, and that the from 1933 his Tom Ors- born, al, thing. During years et had done the same all these 32 аttempted dispossess no one ever puted the Orsborns of the dis- Furthermore, case, (bot, col., tract. the Harmon 2nd. p. recognizes 460) may the that a well established rule vendee acquire adjoining title adverse land additional conveyance by having outside the limits boundaries of his “actual of such additional land of such character give of itself will of an notice exclusive adverse statutory period,” mature into after the an abund- title cites authority say I ance of to sustain such statement. the evidence out, case, at in our under all the authorities above set was least adversity, hostility, claim to raise fact issue on the sufficient disputed right, occupation, enjoyment use and tract the Orsborns; respondents trial and the are concluded by the findings judgment. of fact court’s Kahanek, 132 Texas Production Co. v. case West one a different fact than the case 153, case, a tract of claimant lived on at bar. In the entirely West disputed separated from inclosed fence ap- her the title to tract. From 1912 to when she received disputed 80 acres proximately homeplace, tract of 38 acres range Butte built a “open country.” Dr. From when inclos- inclosing 10,000 and also pasture acres fence ing of some inclosing acres, disputed no fence until 1922 there was very acres, properly held disputed court and the claim, prevented perfecting a adverse claimant was from title possession by Annotated use and virtue of Article Vernоn’s contiguous disputed not even Civil Statutes. The tract was land, lay claimant’s but 400 varas north of deeded some disputed in- nearest corner. In our case the tract the same land, manner closure with the deed and was used the same county case, supra, ran the deeded In the road lands. West along side the east side of deeded tract and west claimant’s disputed no roads tract. In the case at bar there were through trial, case, up land. In the the date of West even disputed was at all times inclosed with other ranged tract, the cattle of and claim- others over the ant’s cattle were not confined tract. In the case bar, ranged at persons- disputed tract, livestock of no other forming keep and the fences the inclosure sufficient to were *28 case, Orsborn cattle within in the inclosure. Even the West recognized disputed court that after 1929 the of the tract, thereof, and the use sufficient to sustain limitation were go necessary title. The suit was filed in so became necessary years. back of 1929 in order to ten In the have the undisputed West case the fences for facts showed that the were the use of others claimant. In the case at bar none other than than the Orsborns were shown to have ever claimed or exercised repair control over or of the fences. Baptist Fellowship
The case of Primitive
at
v. Fla-
Church
Corporation,
Tex
App.,
Tex. Civ.
The case of 528, ref., that fact issues were raised holds adversity, hostility question of on the introduced evidence sitting court, judgment trial and that the use of the having: support appellee, jury the evi in favor of without a binding. Also, great emphasis placed letter on á dence, ten-year (before limitation title written October claimant, effect, admitted perfected) in which could have been evidence at all the lands. In the case bar did not claim the disputed tract conclusively claimed shows that Orsborns of evidence all times and there is not scintilla at never claimed the tract. above, was raised fact I issue From all believe sup- court, there is evidence and that the evidence the trial sitting court, without findings
port judgment of trial jury. would, therefore, judgment of Court I reverse judgment trial court. Appeals, and affirm the Civil join dissent. in this and Smith Associate Justices Calvert Opinion March 1954. delivered Rehearing May 26, 1954. overruled Indemnity Corporation
Associated Kujawa Stanley D. May A-4287. Decided No. 122) (268 Series