*1 .REPORTER 166 SOUTHWESTERN appeal agent this, REESE, also driver corroborated the second J. This the is except that on he testi- set out cross-examination the case is this case. The nature' of agent go Odelia, appeal, him to in which fied the told to in the the the former on present appellee appellant. was Odelia the 128 S. that on route-sheet. was prepared by appellee. testimony for route-sheet had been was introduced W. the No 4S9. flatly the This witness himself about go On contradicts on trial. the former defendant appellant’s agent having here) (appellant present told him to to trial the defendant assuming agent agent, testimony But that the di- its Odelia. did both the introduced go team, driver rect the to from Fannette :tx> driver. the the with who went The driver with the be agent having Odelia, of, most, liveryman, appellee, was route furnished .his own a deviation from the miles. The testimony supposed team, to at was was 2% Appellant’s undisputed prop- acquainted that if horses the had been with the route. route, (and this, entirely ignorant erly driven and for to cared the was Ap- county agent appellant’s contract, the been in the before. never slight agent responsible) pellee know to be did not excess admits team, depended anything distance could not have hurt about the road and only in- con- it is clear that it not. The team. The would driver of the undisputed provision: following “It from the ference either the evidence tract is contained agreed properly I horses' were not cared understood and further Broussard) fast, (meaning risk driven or that the exces- assume and will too proprietors going agents La of the above- distance from Odelia to hold the sive Stringtown places, ,way (Sells-Floto Shows) re- Belle and other named establishment making accidents, sponsible an de- excess in the of about distance manner may proximate damages miles, lays, to 15 'cause occur or men.” deaths wagons injury this, teams, un- to the horses. As to mentioned the above The route disputed agent from named in contract was evidence shows miles, nothing appellant had to do de- to Oheek with this Beaumont miles, Brooks 6 to Taylor’s Bayou miles, from the The driver was sole- to La Belle viation route. ly responsible. miles, He testifies that he select- back to Beaumont miles—39 the same agent ap- Taylor’s Bayou and the ed pellant himself miles in all. this route priori place nothing testimony had do with it. as Fannette. The is suffi- suppose appellant’s go- is not reasonable cient authorize conclusion that in to agent ing anything Taylor’s Bayou (Fannette) had deviation to do from La entirely ignorant good as he was known to be to to tain the driver went a deal out and .Belle supposed way, going by route, Odelia, Stringtown, driver was Ham- and the absolutely shire, greater it, probably cer- and this made of would 15 or 16 miles know distance undisputed required the last than he have been only gone is that reasonable inference to travel if he had direct short- trial. fact, driver, in the direct from La The the did not know est road Fannette Belle. wrong road, beyond took a proximate horses consequence were overdriven and route Odelia this, dropped driv- aided one of them careless reckless dead in damage. ing sticky road, harness, Beaumont, caused the the outskirts of express return, injured. relieves on their It was The contract its terms the other was liability. appeal appellant, from other that “it presumed suggestive may agent It driver was that the is at least had a complaint blame, provided by ap- he arrested to of was tried on the given assume that the driver pellant charged horse, appellee, killing road, change and if knew days convicted, served route was occasioned driver in this the mistake of the have road. court should particular, appellee’s for which charge requested appellant agent responsible, appellee was not would judg- return a verdict for defendant. The not be liable.” ap- appears is reversed and here rendered ment It there was a more direct road pellant. from Fannette to La Belle than that and rendered. Reversed Odelia. But it was miles from 1% Odelia, Fannette to and it would have made the route from Fannette to La Belle longer gone Odelia, miles had driver CO. et CONN. W. WIER LUMBER al. Fannette, back to and thence to La Belle. Appeals (Court Galveston. Texas. The evidence was that it was not than more Motion Re Feb. further than the direct miles route 2Vi 20, 1913.) hearing, March gone by to La Belle Fannette Odelia. — (§ 100*) ox Colon Adveesb Possession agent appellant, Now the who testified Title —Extent. acquired trial, on ing last stated that he a tax title noth- Where defendant knew against title to survey, it P. sufficientcolor road, stranger, was an entire prin- give defendant the benefit of carry trusted to driver to ciple of a of a tract that actual places named on the route-sheet. The the owner will extended to topic Dig. Dig. Key-No. Rep’r other cases *For see same and section NUMBERin &Am. Series & Indexes Dec. *2 Tex.) LUMBER CO. v. CONN R. W. WIER general warranty Bonner, possession of and H. who the whole deed W. him constructive prevent pos- acquisition adverse of title conveyed in turn it to defendants like cov- beyond having limits no title session of one warranty. enants of swered, Adams in and an- came posses- adverse actual inclosure allega- general made denial of the sor. plaintiff’s pleaded petition, cases, not tions and Pos Adverse other [Ed. Note.—For see Dig. Dig. 547-574; session, 100.*] § Dec. §§ Cent. guilty and statute of limitation five years. jury A trial in with a resulted a ver- — (§ 100*) 2. Adveesb Possession plaintiff —Extent dict land and for the Occupancy Tenant —Effect. damages cutting $2,225 sued for and for of land a of a defined tract Where claimant timber, against portion thereof, and separate defendants Adams for leased a defined and por- $2,081 of the leased warranty. the tenant’s actual tion did not session of the whole tract claimed on their a new motion for pos- claimant constructive they overruled, trial appeal. defendants was by him. cases, see Adverse Pos [Ed. Note.—For other The land Dig. sued for session, 100.*] Dig. 547-574; is on T. Pratt sur- § Dec. §§ Cent. vey of 640 acres. in The acres lie 48% survey, extending (§ southeast 379*) Documentary—Plats corner of the 3. Evidence — —Proof. south, the south line of the Pratt on the trespass involving try title, a a conflict east, east extending line of the Pratt on the surveys, in be consider- certain could not 1,360 proof westward varas. The 160 ed without that it was correct. adjoins cases, Evidence, north, acres other see [Ed. Note.—For bound- Dig. 1656; Dig. 379.*]' Cent. Dec. § § ed on the east the east line of the — (§ 24*) 4. Infants extending Possession west 950 varas.' The William —Adverse Residence. survey joins Duncan of 640 acres the Pratt occupants land, Where the of certain claim- on the south. suit in This was filed 1908. ing adversely, performed necessary cultiva- enjoyed tion dicate adverse and used and the land so to in- is sufficient to it was not material finding, that, beginning and we find with the that for of the time one of them was under occupancy by 1893, Nathan Burrell age and both resided with their father other followed claimed that of John land. cases, Infants, Nathan, [Ed. Note.—For other see that of Na- Dig. 25; Dig. Cent. § 24.*] Dec. § 1900, than who succeeded John in Appeal (§ 1056*) Rulings Killen, and Error on that of J. O. conveyed to whom Nathan — Prejudice. Evidence — 1900, it and who turn Where, trespass try title, there was conveyed appellee, it to Conn survey no evidence that the C. of for, Conn, either tracts sued title, defendants and those were under whom he claims prejudiced by the exclusion of evidence to continuous, actual, have been in and ad- acknowledgment show that a written occupancy land, verse of the 160 acres of cul- was intended to cover of the P. tivating, using, enjoying survey, same, within the boundaries of the C. was void. necessary support appel- all the elements cases, Appeal [Ed. Note.—For other see and lee’s claim of title under the statute of lim- Dig. Error, 4187-4193, 4207; Dig. Cent. §§ Dee. years, years itation of 10 for more than 10 § 1056.*] ensuing from and after the date of the first Appeal Court, Jasper from District Coun- occupancy. acres, As to the that, we find 48% ty; Judge. Powell, W. B. beginning about Arthur Burrell was in against Action R. C. Conn the W. actual, occupancy tract, adverse of this culti- Company Judg- Wier Lumber and others. vating, using, enjoying it, plaintiff, appeal. ment for and defendants own, up convey- as his to the time he sold and Affirmed. appellee, Conn, ed it to in 1905. Arthur Bur- conveyed acres, extending rell tirely Holland, sold Orange, Holland & en- and W. W. survey, Blake, appellants. Jasper, across the Pratt but his lim- W. F. Good- rich, Hemphill, itation title included acres Blackshear, and Smith & 48% May 7, Jasper, appellee. for herein. Stone, A. N. tax Jasper county, conveyed collector of to W. J. B. survey, reciting the T. Pratt REESE, trespass J. This is a suit the land was levied on and try sold for against taxes R. C. Conn the R. W. year 1894, amounting for the $6.40. Company Wier Lumber and to recover the title paid consideration $10.65. The tax col- land, of two certain tracts of evidence, lector’s deed was introduced one of but acres, acres and the other of 160 48% sale, survey. no evidence offered to the tax both on the ex- T. Pratt Plaintiff also cept deed, regular damages cutting the naked which is in appropriat- sued for form convey ing specially T. pleaded timber. Plaintiff This deed May 26, recorded title to sued for land under the statute years. prior plead- of limitation Some time 1888 one Ab Cole' Defendant had general denial, guilty, pre-emption ed and in and settled addition located of T60 sought recovery warranty entirely on the which was of W. J. acres conflict part- Adams, Sr., B. R. F. and Abel Wm. Duncan either the who, alleged, conveyed ly partly it was with the Duncan and with the topic Dig. Key-No. Dig. Rep’r other oases see same *For ana section NUMBERin &Am. & Dec. Series Indexes 156 SOUTHWESTERN REPORTER part his in pellants part vey. tual following land, conflicted dence rell’s ther his widow was evidence which land save aforesaid. gust, A. D. 1899. 1901 Duncan. tended Pratt, to gal the Pratt of the was and had land on the said acres; Frederick and state that Ab survey known as der per tenant in and said Adams, Bluff, strument during ed and field notes of a veyed miles in an with the Adams, what About 1889 F. acres of when “The This “Witness “Know ^[1] give by tenant, Cole vendors, claiming and state of I proposition I date tract of of in the actual placed inelosure. Those drew to By improvements, State-of hereby This he executed the that this Cole part am remainder, said 160-aere tract within of to but Burrell’s tract of land referred to his lifetime as his that went and that limitation claim the land under describing complain survey part of the Ab Cole land, defined charge requested, embracing show was shown to be the Ab Cole with the am the said described tract of continuously occupied all now consent survey up to the time of the trial. There of Evidence and under tracts herein sued this Cole location my possession this evidence does made “[Signed] Frederick Burrell.” of the Pratt - easterly actual I admit and appellee now Texas, men first of tenant; it the constructive situated in the Texas, County occupying such that W. and hand this the 3d not in tenant of the improvements boundaries, Jasper the-survey Texas, under a deed I of the refusal occupying acres had boundaries of an R. F. by Pratt. occupancy Burrell settled assignment possession of the it day and after his death actual into was introduced tended to show that do survey, adverse direction could also encroached on these whom following evidence. continued acknowledge permission occupying such hereby acknowledge property Adams, who resides of about six or seven principle no interest and possession There having county was so covered. I September, 1888, possession land, presents but state any part or appellee have ever since living for. of county.of of of extended survey from of error said not duly same, any of the court the adverse side instrument: Jasper: was no evi- surveyor recover un appellee Field notes the facts day of the said said in this possession thereof as of it of upon this of- surveyed, having of upon wit, indicate tract of original claimed original appellants, although of Bur- of said bounds, Wiess’s Burrell Texas; that record Jasper of Au- on the the le claims as the which which R. F. of ei- of Jas- sur- sur- ap ac in- as of I, a 84; the well-defined boundaries of the Ab Cole a actual A-.’s tenant possession verse yond Tex. 62. we evidence principle of so much Burrell, session of the Pratt aries the actual owner of defined tract of was this him. this Burrell held of the Adams’, did or the remainder of the leased that actual land give Texas Land Co. v. v. such adverse evidence doubtedly was be held sion of consequence and by acknowledgment aries terms of tion title verse of boundaries of tended as to session of boundaries. conveyance Pratt, the benefit [2] When we defined of Burrell as his tenant. Adams 395; Burrell’s him constructive Claiborne prevent only may of the boundaries of the by of the limits possession by any part It possession met by appellants’ defendants’ possession the owner will be so extended to the the Ab Cole void give and in constructive a of existed to render survey Texas the instrument title, Adams was in actual of the whole tract any part encroached sufficient possession possession of the tract embraced give of land of of the title of the of only by of tract, which, does Tex. 154. survey, possessor, law to the facts of this By entire Pratt virtue of this stated survey, give acknowledgment separate portion thereof, which this tract as preventing the obstacle that there is come, however, we case. Evitts v. Burrell’s, of it outside of the of of virtue of this of Land Co. v. acquisition Elkins, that Burrell rented from of the leased think that his possession of Adams general tenancy, held vendors parts within one the actual of tract cannot thus: virtue of the fact that to entitle possession outside of the bound of of tenant. if vendors of give the Pratt outside was not shown claimed Adams had title to base an constructive having a application there had been tenancy under the part referred part survey, constructive fact, If *3 principle A. constructive Tex. Burrell of tract; owned the tract held effectual acquisition of the possession A., being owner of the Roth, land covered Williams, consequently of the Pratt inclosure of contract un of the title, leases to well-defined no inclosed actual Pratt, tax title apply possession possession years’ within its be so as tenant a tract any with the 51; and tenancy. but title be to, proposi express 61 Tex. of posses of cannot bound by Pratt, whole Read as to him. as a part part pos out pos B.’s law any ad his ex ad B. of of of of of Tex.) LUMBER R. WEEK. CO. Y. CONN w.

There was no evidence tinder lant would have been entitled lants’ brief the err in the this relative cation is which F. which the ing to the evidence which fact that 135 S. W. 1156. ment herein of a F. can ute contention, resting 160 Burrell, of Burrell were tracts, respectively, occupation verse Pratt rell was his the abundantly Burrell was John. There is no tention two tracts sued their which requested the court to father on adverse to altogether v. their accompanied der the having married. The evidence shows that opinion use, ^[3] [4] The evidence shows that former W. nothing land covered this reason in the record requested charge, acres of the lines two Ab Cole of There father for Adams. Actual residence father, Burrell and others occupancy title to Pratt. The most that two tracts sued survey herein he refusing appellee limitation, time that encroached claimed possession positions who claimed tracts here charge 21 enjoyment of either of during of this latter tract with 10-year He built a is correct. they suit W. of the evidence is W. Burrell recognized by on the 127 W. this rented tending shows have been shown years which also set 1S98, F. W. which survey; four these outside of principle cultivating they S. tends made admits was intended out, his Duncan Duncan, statute. The refusal old John held under complained and moved on the necessary. acquire upon to show that upon merit in the boys, by could not minority purports the tracts sued house on the 581; they but under their sued for. and the court in 1896. His use and five necessary cultivation, speaking Certainly of the land perfect J. rented they charge it. tract, of law embraced Burrell belonged tends his the written on the B. Adams sustained. the we can for, lying Burrell v. years home with their recover the on the claimed can father. Arthur appellants’ ihis 160 the location reason of the Pratt. There acquire by tract held tracts him, their title un es this could not to show which he 10-year on the Pratt ground during part tenancy lay acquire there and Arthur living with older than John it covered claim was limitation jury recovered beginning 160 160 the tract reference the gathered Duncan, exceptions. for. the two the sec- did not error in Adams, knowledgment Adams, against instru appel- appel appli- overruled. to be place, *4 is no not noth acres acres Haynes acres Dun stat Bur- disposing Cole con this ad In signment of ered lee for; testimony Burrell was ond have of the and fifth as we can the Pratt the first overruled. If which it the Haynes cisions referred to of led ties in further examination led roneous. tion of the doubting possession in this case portion us that the case of Read ruled 729], ease of Bowles would have this examination App. mer What we have said in Affirmed. We ^[5] On motion we to hold to the the the various void Ab Oole Tex. Civ. tend to show that to a further excluded us assignment opinion court nor There assignment opinion, any 'part while not 49, the identical sustained regard prevented are correct'in what statement contentions language: to reconsider this state v. v. is cited in sustaining was there for the court 111 S. W. is overruled. In testimony exception of the first third assignments T. Railroad Judge directly no error opinion understand the was no material or in the case tended to has failed to intended Motion for fact, a more Supreme even & N. R. testimony, is App. 316, speaking authority premises to show that v. of either Oourts of appellants’ of error assignment examination affirmed. Read v. rehearing appellants Brice, “The Key within the boundaries on this O. terms one proposition set had been Co., supra, of our 427, error, requiring reversal, and Bowles Brice would error. effect Court out under the fourth v. this assignment lighten question of ease, motion we actually 66 Tex. 730 be restricted to the Rehearing. objections evidence which did. the authorities sufficiently if of Read overruling cover that of the latter and the individual Allen, executed F. Adams Puryear reveal contrary,” Allen: “The question, careful error, expression disposing of the we Oole Co., rambling claim. which true, S. W. own the continually “has cited. v. Judge Gaines, overruling testimony in the labors this excluded- error, have said Appeals.” It 63 Tex. is, to, occupied written tracts a case even court, prejudicial which opinion would not. support been considera- v. have v. of Tex. Civ. writer Must the must seems The as disposes and the [2 authori- In view etc. Friery, bill of so as er- F. W. appel- Allen, error, insist over- sued, cov late 154, for- has did far ac us- de- In in of REPORTER SOUTHWESTERN Allen, discrediting contrary, Read v. Allen. On the in Read v. the tenants? It is held Tex. 51 Tex. express recognition 154, we take it as an authority Land Co. v. and in Texas Clountz, party claiming land In Hall v. 51, of that case. that when parts App. 944, specific 348, of 26 Tex. Land Civ. 63 S. W. leases it, written contracts bounds, describing are cited Read v. Allen Co. v. Williams and them Puryear Friery, possession through In 16 Tex. and followed. v. his lessees extends App. 449, parcels 316, it was held that accord 40 S. W. Civ. to the so defined. brought principle in Cun case it under laid down the facts rule recognizing ance with the expressly Brice, ningham Prandtzen, that where of Bowles the court v. v. 26 Tex. of land sells the distinction between that of a tract one suspicion Allen, portion actually occupied by him, his con and not even a and Read v. Allen, authority of Read v. before existed is cast structive opin immediately Key, remainder, determines. who wrote the that Justice to the But we consider case tenants for the ion, different states as his individual that we have Cunningham Frandtzen, party, cited lets before us. Shall purpose the in Read v. of cultivation Land Co. v. Williams and improved support be deemed announced the doctrine of a tract does not Couts, 45 S. W. In lost his constructive these cases. 487, Collier v. to have the not. of which it deemed whole tract sion himself. unimproved? think We same as Bowles which is the facts were the property applies Brice, use cited in v. opinion. which is 1-Ie Kimball, susceptible, and should Oil Co. v. Houston ownership exercising *5 and fol Allen is cited as over S. Read v. fully posses granted, but the as he were lowed. Writ of error Supreme cultivating improved portion, Court was affirmed of the 85); (103 105, 122 124 S. W. witnesses state S. W. It is true that the Tex. while nor Land or Allen case had no neither v. tenants Read cited, clearly opinion authority land not cultivation.” Co. v. Williams approves any evidently in Court did not see the rule announced The court Jones, consistency Appeals. Mo. In Pharis v. between the doctrine Civil 125, announced Supreme 1032, the Court and that in the two eases cit this case 26 W. S. any approves v. Allen. of over Read ed. If there had been intention Missouri cites place Supreme ruling cases, this is the where the two If there is a decision either Appeals naturally any In looked for it. we would have Read Allen and Land Co. v. Court or the Courts authority, Williams, the that in Co. v. said or v. has overruled doubted places proper case, a landlord Allen or Land law is thus stated: “When of Read v. by him, except (erroneously) on a tract of land claimed what is tenant Haynes Co., designated by the sub Railroad and division of the tract tenant tenant, metes bounds this court in v. opinion, by Judge Key, which the as his individual Puryear occupy, Friery, been unable v. we have question limitation, in can on a it. Now, present to the ex ure tent of forth landlord’s benefit can be no case there designated acknowledg set bounds doubt that the written lease in’ the lease.” ment of F. W. Burrell to Adams Haynes Case, survey. facts, its came ex referred to the Cole 160-acre As it actly Brice, stands, within the of Bowles v. doctrine the written lease was insufficient simply description as was held this court. We were want identification of parol in error was Bowles v. was intimated that there when it lease. embraced Without showing referred, conflict between Read v. Allen evidence to what land it parol Brice. As court it was worthless. This identi occupy in ferent dif the latter the two cases fied the acre as the Cole 160- ground. again Certainly We have examined written lease explained by parol, terms, cited us in each of the cases its covered Haynes Case, part Bowles v. Brice find in so far as the brought part the facts in each Cole covered ’ rules in Brice and within the Bowles v. That capable fact, boundaries of the Cole clearly distinguish identification, it from Read v. Allen if such exact question. and Land Co. v. Williams. With reference does not It was affect the present authority sufficiently of Read v. shown small following: event, in this decisions state Craig Cartwright, controversy. it was We none of that here approval. was, however, cited with be our the case is must adhere to ruled decision Bowles v. Brice. Since and Land v. Wil fore Read v. Allen Co. however, decision, grounds in Parker that rell, v. Cock liams. None of the of the motion distinguishes rehearing tenable, 31 W. the court for overruled. and the motion certainly cases, and there is no hint of two