Case No. 3969 | Tex. | May 2, 1880
The cases generally, in which it has been held that adverse possession under a junior title of part of a tract of land, will, by construction, be held to extend to the boundaries of the title, where there is not also actual possession under the elder title, were those in which there was a total conflict between the two claims.
Under such circumstances, the adverse occupant, who sought the bar of the statute, was in the actual possession of part of
Although in Jones v. Menard, 1 Tex., 771" court="Tex." date_filed="1846-12-15" href="https://app.midpage.ai/document/jones-v-menard-4886933?utm_source=webapp" opinion_id="4886933">1 Tex., 771, it was held that actual possession of part of the land, though not within the conflict, would be constructive possession co-extensive with the limits of the grant claimed, yet that case was decided upon another question, and in the opinion weight was given to the particular phraseology of section 21, Act Fourth Congress of the republic, 91, to regulate proceedings in civil suits, approved February 5, 1840, but not now in force, which provides that: “ In controversies affecting lands, tenements or hereditaments, possession of part shall not be construed as possession of the whole, when any actual adverse possession can be proved.”
The great current of authority, however, is, that where there is only a partial conflict or interference of surveys, the statute will not run in favor of an adverse occupant under a junior title, if his possession does not extend to that part of the land in dispute which is within the conflict. Angell on Lim., § 402 (5th ed.), and numerous authorities in notes; Trimble v. Smith, 4 Bibb, 257" court="Ky. Ct. App." date_filed="1815-12-05" href="https://app.midpage.ai/document/trimble-v-smith-8685164?utm_source=webapp" opinion_id="8685164">4 Bibb, 257, which was an agreed case, very similar to the one under consideration; Fox v. Hinton, 4 Bibb, 559" court="Ky. Ct. App." date_filed="1817-06-05" href="https://app.midpage.ai/document/fox-v-hinton-8685365?utm_source=webapp" opinion_id="8685365">4 Bibb, 559; Smith v. Mitchell, 1 Marsh. (Ky.), 207; Pogue v. McKee, 3 Marsh., 127; Smith v. Frame, id., 231; Price’s Heirs v. Evans, 4 B. Mon., 388; White at al. v. Burnley, 20 How. (U. S.), 235, which arose under section 15 of our statute of limitations, February 5, 1841 (Pasch. Dig., art. 4622); Hole v. Rittenhouse, 25 Pa. St., 491, overruling Waggoner v. Hastings, 5 Barr, 300; Beaupland v. McKeen, 28 Pa. St., 124; Talbot v. McGavock, 1 Yerger, 262.
These decisions are based, in part at least, upon the doctrine that the elder legal title draws with it to the owner the constructive lawful seizin and possession of the land embraced within its boundaries, though actual possession be not in fact
If, however, there should be an actual adverse possession under the junior title of the part within the conflict, then the true owner could sue. As said in Whitehead v. Foley, 28 Tex., 289, what acts will amount to a disseizin is often a question of great difficulty, and it has been impossible to lay down any rule which will be applicable in all cases.
It is the doctrine of this court that there must be an actual, visible and exclusive adverse possession of the land in controversy, to support the statute. Wheeler v. Moody, 9 Tex., 377; Gillespie v. Jones, 26 Tex., 346.
But it does not, in the present case, become necessary to enter upon the question, what acts would be sufficient to amount to disseizin of the true owner, where there is an adverse possession under the junior title, but not upon that part of the land within the partial conflict or interference of the two surveys, as it is expressly agreed that neither the occupation nor improvements of the defendant had extended to that part of the land which conflicted with the Basquez grant.
Under the agreement of the parties, the judgment below is reversed as to appellee Barton, and rendered against him in favor of appellant Peyton.
Reversed and rendered.
[Opinion delivered May 2, 1880.]