*1 Pеtitioners, al., et H. REITER Edna CO. PRODUCING STATES GAS
COASTAL al., Respondents. et
No. A-9585.
Supreme Court of Texas.
June 1964. Dissenting Opinion
Rehearing
Denied
Piled Oet.
*2
13,000 acres,
Strickland, Wilkins,
Mills,
containing some
in-
Hall
Mis-
a tract
&
Winn,
cluding
dispute.
an
sion, Turner,
&
the .8 of
acre now in
Rodgers,
Scurlock
13,000
Okl.,
Dallas,
Heard, Tulsa,
portion
being
A
ir-
Terry,
of the
acres was
W. W.
rigated
contemplated
and
that addi-
petitioners.
it was
for
placed
acreage
tional
would be
under irri-
York,
McDermott,
E.
William
Malcolm
gation.
purpose
conveyance
to
of the
Ewers, Elick,
Ewers, Toothaker,
&
Jones
lands,
Hester, Trustee,
place
was to
Matthews,
Abbott, McAllen,
L.
San
W.
properties
for
easements and other
used
Rawlins,
Antonio,
Ralph
Edinburg,
T.
irrigation purposes
trus-
in the name of the
respondents.
tee,
separate
irri-
and
title to the
thus
gation properties from the title to the lands
NORVELL,
irrigated.
to be
Provision was made for
Justice.
rights
easement
in the future
to be exercised
trespass
try
This is an action
by
parties
sys-
irrigation
operating the
north six
involving .8 of an acre out of the
tem and their successors. The deed recited
Blanca
acres of Block No. 223 of the La
Agricultural Company
La Blanca
Agricultural Company
Tract out of
“granted,
conveyed
by
sold and
and
these
Llano Grande and La Blanca Grants
presents
convey
grant,
does
and
unto
sell
Texas,
Hidalgo County,
according to the
Hester, Trustee,
the said A. F.
map
plat
tract which is of record
said
Texas,
County of Cameron
all
and State of
Map
page
Volume
at
Records
parcels
those certain
land sit-
tracts or
Hidalgo County,
Texas.
County
uated in
Hidalgo,
State of
District
were
Texas,
thereon,
improvements
with the
and
Reiter,
husband,
joined by
Edna H.
her
particularly
more
as follows:
described
Reiter,
C. S.
and Pan American Petroleum
Corporation,
of a mineral lease
holder
conveyed
(10)
“Ten
acres of land
under Mrs.
were
Reiter.
defendants
by
by
Hill
T.
Hooks
Lon C.
deed
J.
District,
County
Irrigation
Hidalgo
Donna
day
dated the 8th
of December
lessee,
No.
and its mineral
Coastal States
‘K’,
pages
and
recorded in book
on
Producing
Gas
The trial court ren-
Co.
and
records of said
200 of the deed
judgment
defendants,
dered
for the
by
Hidalgo County,
said
and
Appeals.
affirmed
the Court of Civil
Hooks,
Agricul-
T.
Blanca
‘La
J.
the defendants failed to show having species property. owners of such The- any right possession, to disturb that plaintiff grantors and his had collected rent judgment plaintiff in favor of should from tenants on the lots. At one time there See, effect, stand.’ to the same Elofr building was a on the which had' son Lindsay v. (Wis.) Wis. [90 203] been plaintiff’s removed with consent. The- 89; Dyer, N.W. v. 31 Ark. plaintiff ownership claimed full Jacks 334.” premises and there no was evidence of n thereupon premises defendant defendant and the Although the abandonment. him, plaintiff entered and ousted deeds claim of title based made some pre- title, prima proved has a facie record with the not connect which did pos- position sumption of de- arises from title held the Court session, and, prove unless the defendant essentially that an intruder. fendant was title, a must himself be oust- better he immaterial it was Court held Although proves that some ed. he title record was plaintiff’s claimed whether person, in man- third with whom hе “entitled to recover not as valid or he title, himself, ner has connects does proof prior possession, his where on posses- good, prior him no because has no simply an intruder and (cid:127)defendant sion sufficient quoted from the (cid:127)color title.” The against authorize him to maintain it as in Davison (cid:127)opinion Chief Baron Pollack trespasser, defendant, a being and the Gent, Eng.L. Eq. follows: & title, and connect- himself without party right maintain has a title, ing any jus- himself cannot '“[I]f with ejectment, by an of his reason action tify plaintiff. This is an ouster of attempts possession, to show also only explanation principle it, may .title, a flaw in and discloses recovers posses- his still reason of recover strength his title. title own This may say, ‘I claim recover (cid:127)sion. He sufficient, title, and it is a my my both reason only regards so far as a defendant who possession; failing will I tort, one got possession by pure into posses- rely upon prior His other.’ simple trespass, act of intrusion or event, against good
(cid:127)sion is pretense with no color or of title.” trespasser entering right.” without Maverick, Sabariego “prior possession” As rule to the (1888) 124 31 L.Ed. U.S. 8 S.Ct. Smpreme fur- Court of the United States stating pol- was also referred to. ther in the Bradshaw icy rule, said case: said consideration for the it was in Maverick: authorities
“An examination of the *7 think, will, we render it clear that prior possession] rule is “This [of possession regard in upon the rule presumption founded the that presumption arising the therefrom every possession peaceably acquired is n correctlystated, appear it that and will lawful, policy is sustained the it the ac- peace is not inconsistent with protecting public against knowledged ejectment that rule in violence and disorder.” strength must recover be There can little doubt that rule title, his own and not weak- practically in all American followed ness of title of defendant. jurisdictions Supreme is in accord with (cid:127)question is, presumption What arises holding Ashley. in Court’s Bradshaw possession of real the fact of from report accompanying Annotation See pre- Generally property? speaking, the the Bradshaw case in 45 L.Ed. 423. posses- sumption person in is that the Texas likewise hold well-considered cases in fee. If there sion is the owner support a prior that will recov- contrary, proof evidence to ery trespass try in title under the facts possession, at least under a color Reavis, (1896) of this House v. case. proof is of title. right, sufficient 1063,Mr. Tex. 35 S.W. Brown Justice Therefore, eject- when in action speaking for the Court said: plaintiff proves ment the that on the prima in actual, “The facie case made favor in the day named undis- proof turbed, plaintiffs quiet possession case in this prior possession property right by actual simply showing defeat his that strong cogent passed was as evidence of the title had out of the state in showing any title them as was the evidence of without claim in of title above, common source in the cited himself.” require necessarily and it would There are some inconsistencies in the high degree proof to defeat the ti- relating Texas decisions the doctrine tle established de- thus as would to “prior possession” vary- which arise from feat that which was established ing interpretations of the statements that parties claim both under a common “prior possession” the rule of is one of evi- presumption source of title. The which property dence (or estoppel), and not of is raised favor of the title of the and that it prima is reasonable in- facie possessor necessarily of land includes possessor ference that is presumption that the state had the owner thereof. parted with the title to the land to some one, possessor acquired and that the had This situation was in Land mentioned Otherwise, presumption that title. Turner, page (Tex. at of title fee not exist. It there- could but a 1964), decision on the matter was not follows, necessary logical fore necessary. deemed Hence the delib conclusion, prove title that such erately did not choose between the two lines passed had out of the state establishes appropriate of cases. A choice is deemed pre- no fact is not included in the here. sumption plaintiff; title
is, Ordinarily prima person acquired facie infer that some had title presumption may ence or be rebutted and plain- from the state to that of the tiffs, the next question encountered relates to the or that themselves species or kind must of evidence which it from the And state. produced Assuming to rebut the inference. the latter case the could arise, upon prior pos that the scarcely relying plaintiffs, because the session, proof perfect of title the defendant un having a title direct from questionably operates state, to rebut the infer produce would fail it. The ownership arising plaintiff’s ence of from presumption possessor possession. hand, proof On the other indulged quieting favor grant sovereign has issued from the country, support titles of the and to coupled per showing with a some third who, of those grant son holds the record title under such right, pos- under a сlaim of hold such is insufficient to session, rebut the inference. This but whose chain of title is not *8 Reavis, is holding the direct complete parts. in House v. posi- all of its If the supra, approval which was cited with in tion taken in this case be established Smith, supra. Watkins v. These cases law, object as the then the and support proposition that a break in presumption of such a which has so plaintiff’s paper leaving chain of title an long prevailed in common-law courts apparent outstanding person title in a third defeated, every would be and the title of destroy plaintiff’s does not case under the possessor of real estate whose chain of prior possession. doctrine of The brief perfect placed title was not would be at opinion Bacon, rendered in Bates v. who, force, mercy of those either 348, 1 cryptic. S.W. is somewhat fraud, strategy, pos- or could secure If it be holding construed as that mere session, place and thus the actual and proof patent of the issuance оf a which rightful possessor upon proof reg- of a necessarily paper would show title in a ular government, chain of title from the person prima third is sufficient rebut the and, so, in case facie growing of failure to do could inference of title out of twenty frontier holding the land was within is possession, then such plaintiff’s United States bordering on the leagues be cannot Reavis and contrary v. to House government central approbation holding doc- Under such sanctioned. Supreme Court no possess was not shown. The prior possession would trine of without held that one merely a still- the United States become vitality and would actually person title “cannot enter on showing of be no If there born notion. him, question his seised, eject then said that patent, it could be issuance title, outstanding in anoth- up in the title paramount is or set an title shows that record no title. consequently has er.” (cid:127)State and shown, could be said patent be it If a Scott, was Christy it speaking v. grantee to be vested title is shown Gilliam, 39 Tex. said in Alexander v. be without plaintiff is shown to
.and hence 235: title. state, from this “This was in- which that the There are cases hold is and the doctrine herein laid down e., possessor, i. title in the ferences of trespasser can- that a mere or intruder sovereign or that from the title has issued posses- upon enter the lands in the (if paper title of the record holder eject him there- sion another person acquired by the shown) been be has from, title, question set and then his by showing possession, may rebutted up outstanding title another.” party. outstanding in a third title Reavis, supra, the Court House v. pass directly unnecessary it found possession” “prior The doctrine proof defendant of whether designed to simple (cid:127)should be a as it one person defeat the a third could public In es peace maintain and order. land. The claim of one in proceeds upon theory that one sence said, strong Court “There are reasons unless be disturbed should not good position authority to sustain In Brad having it be one a better title. not, necessary he if it to assert could were undoubtedly Ashley, supra, shaw v. which Among it in authorities cited this case.” rule, represents prevailing American Scott, supra. Christy v. categori Supreme the United States cally stated: perceive good practical rea- We of no general English why son American and presumption title arises from “[T]he represented by Ashley, rule Bradshaw v. possession, and, the defend- unless Scott, Gilliam, Christy and Alexander v. title, prove must himself ant a better he principle by and endorsed in House Reavis proves that Although ousted. be followed Watkins v. Smith should not person, he in no some third with whom approve holding Texas. in such We himself, title, manner connects has possession. prior issue of cases pos- him good, because the does Expressions opinions contained former session sufficient Court, Appeals Commission of against him maintain it as authorize Appeals may or the Court of Civil defendant, being trespasser, and the appear holdings herein contrary to the set title, connecting
himself without and not *9 disapproved. forth are title, justify cannot himself with plaintiff.” an ouster of the To return to the facts of this Scott, Irrigation we find Donna District under early Christy 14 that In the case of proper 1904 Hester construction of the How. 14 422 L.Ed. only right deed an easement possession of land under claiming was simple metamorphosed into fee cannot be grant. The defendant as- Mexican state Galveston, Harrisburg and San grant invalid in that claim. serted that this was McIver, Tex.Civ.App., “Q.: you pay Did he Ry. for it? Antonio v.Co. rights (1922). The dism. S.W. wr. sir, Yes, “A.: did. he ease being restricted of the District “Q.: pay you much did he How for it? most, over and above such ment at its claims insupportable. Even wholly are A fifty “A.: hundred and dollars an. Reiter’s though that Mrs. it considered acre. defective, paper nevertheless “Q.: all cash? Was paid a conclusively Mr. Humble shown , No, paid “A.: half half he cash and property for consideration
valuable notes, pay- lien five vendor’s thereof. This possession went into annually. able it the possession law carries with under the hav ownership against presumption one “Q.: they paid? And have all been ing no title. They paid. all been “A.: have matter which There is one other “Q.: then, you Now after sold that: briefly opinion The may be mentioned. Humble, put you did land to Mr. Appeals num contains a the Court Civil it, him in of Mr. Cram- map designated as ber references to er? 223- “Engelman of Blocks Resubdivision tract, Yes, La Blanca “A.: sir.” 224-225-226 B” page at which is recorded Volume circumstances, Under difficult these it is County, Map Hidalgo Records filing to understand how the Volume- map filed record Texas. This was operate page map could to defeat Mrs. 30, 1924, Inc., Engelman, some on December point Reiter’s title. need be labor- The had its deed five months after it executed ed. La L. In the deeds from Humble. T. Inc., Engel- and from Engelman, Blanca to judgments The of the courts below are re- man, Inc., from Humble to to Humble and versed judgment here rendered above: Reiter, map reference was Mrs. indicated. Map Hidalgo County page Vol. 33 of the map no subdivisions Records. This shows SMITH, JJ., dissenting. GRIFFIN and La Blanca tract. Mr. of Block Cramer, general Engelman, manager SMITH, mapped Inc., testimony in his referred Justice. testimony His Block 223. resubdivision of 24,. opinion dissenting delivered June
was as follows: 1964, withdrawn, sub- Cramer, “Q.: you Mr. Mr. did know stituted therefor. L.T. Humble? I has- respectfully dissent. him, yes. I did We sold a
“A.: know passed possession, Humble, piece Mr. of land plaintiffs and has have established held that on it he lived several and, prior possession; therefore, title- have years. him then. I knew to the in this case. .8 of an acre involved argued Prior Court of Now, “Q.: map have a here that we points- Appeals Civil in connection with the here, has and Lot been introduced proved plaintiffs- that title to be with map on is shown this —what ten-year under the statute of limitations. piece you did sell contention was Mr.- prior possession 6 acres of of “the North “A.: The acres of north six Lot plain- proof Block 223.” No was made that *10 ****** tiffs had established title to of an acre the .8 fact, plaintiffs principal reason that the first metes and bounds involved. appears legal that de- description failed establish title is of this .8 an acre have to of scription in their рlaintiffs’ petition. plaintiffs’ of land in three deeds through All defective, and, fatally get away of is plaintiffs briefs to from the chain title seek therefore, description void the deeds in void. contained their describe chain of title. The briefs deed description land in the of the acres, being tract the North Reiter as Engelman, from the common source C. to J. plaintiffs’ of chain whereas the deeds 21, 1924, Inc., July is as follows: dated being as “the North title describe their land and nine-hun- “The north nineteen acres, less, (6) Block Num- six more or less, acres, or dredths more (19.09) Twenty (223) ber Two Hundred Three Twenty- * * *» Block Number Two Hundred to subdivi- (223), according three I is in this contend that no evidence there Blan- as the La sion of what known showing possession. prior It cannot record Tract of the Llano Grande ca out said, law, plain- as a matter that the Grants, according La Blanca to theory pos- tiffs have title under the 1, plat in Volume thereof recorded theory. This case was session or 33, page Map and Records of the Plat jury. tried aid to Court without the County, Texas, map Hidalgo said take-nothing judgment properly A en- plat being or herein referred to for plaintiff. tered against the certainty description.” greater trespass try suit title A to deed plaintiffs’ Next in chain of title is a superior may title proving a (1) recover Humble, Inc., Engelman, C. to T. L. from J. source; proving title out a common (2) tract July describes a dated prior pos by limitations; proving (3) less, acres, or out of 6 more C. J. session, acres, less., Inc., Engelman, 19.09 or more Turner, been abandoned. See Land particular description being: Tex., plain (1964). S.W.2d 181 Since acres, more (6) “The north six tiffs all three of these inde have asserted less, Two Hundred of Block Number pendent recovery grounds of as basis Twenty-three according to (223), acre, claim the 8 shall their I known the La of what is subdivision separately. grounds discuss these out Llano Grande Blanca Tract Grants, according to and La Blanca Superior Title a Common Source Out of thereof, plat recorded Vol. trespass suit, try title where Map Records page and Plаt source, parties agree to a common Texas, map or County, said Hidalgo discharge incumbent great- plat being to for herein referred proof es- the burden of him to resting description.” er superior tablish title such source. from plaintiffs’ chain The third deed 798, Texas Rules Civil Pro- See Rule T. is a deed from from the common source Gale, cedure; Davis et ux. v. Reiter, plaintiff, H. Humble to the Edna L. (1960). August This describes deed dated By entry “take-nothing” judg- follows: against plaintiffs ment the trial court acres, plaintiffs discharge more (6) “The six held that the failed North less, Number Two Hundred this burden. The are before of Block Twenty-three according urging court the trial court and appellate hold- is known as intermediate court erred in subdivision of what Llano ing superior out against them on the issue of La Blanca Tract Grants, ac- legal La Blanca title. Grande and *11 254 description, particular since plat thereof recorded there
cording to the 1, 33, acreage, quantity, becomes im- Map Plat or page Vol. portant County, ascertаining land is Hidalgo Texas.” what Records of intended be condemned. There is de- or less” render the The words “more identify nothing to or define the north attempted scription of to he con- the land part of one tract and the north end veyed the extent uncertain and indefinite to except of the other tract the statement be identified. There- that the land cannot acreage, and that statement fore, legal convey- void as deeds are qualified, indefinite and uncer- made disregard ances of seek to land. Plaintiffs words, tain the addition less” used in the de- words “more or ‘more or The use of these words less’. scription of the lands involved and desire destroys the statements the value of they descriptions as if read: treat acreage of the of de- 223, The North acres Block 19.09 scription. The substance of the de- Thus, the North 6 of Block 223. acres scription acres, less, is: 60 more or plaintiffs the words or treat “more would tract, part off or the north end of one they though less” as were added to an esti- acres, less, and 140 more or off quantity following mate of the north part end or of the other tract. particular description. The “more words (and 140) Is it acres 60 or more than ignored. or less” cannot be deeds in 60 (and (and or less 140) acres than 60 designate the land instant case do 140) more, If acres? how much 223, as the of Block North 19.09 acres less, more? If how much less? the North acres Block 223. The opinion, our description of the land words to an are not attached estimate petition contained in condem- description quantity particular following a nation, in judg- the award and in the particular of the there is no land. Since ment, is so indefinite and uncertain land, description acreage, or that the land cannot be identified with quantity important ascertaining becomes certainty. reasonable It follows that conveyed. what land intended to be neither the commissioners nor county acquired jurisdiction.” court in the case The rules announced 238, State, Tex. Wooten v. 177 S.W.2d There is no material distinction between question. controlling are on the the Wooten case and the instant case. case, two tracts land were in- description “more or less” in both instances tracts was volved. One described simply nothing described part as the North of Tract Section nothing. certainty The reasonable of de- G-17, Survey, Blk. H. P. Melton contain- scription required conveyance for a valid less; ing land, more or and the acres of surveyor is such that a go could (cid:127)description given the other tract was land and designated. mark out the land end of it is the North Tract Sec- Co., Ry. See Parker v. Fort Worth & D. C. G-17, survey, tion Block Thos. F. Main (1892). Tex. 19 S.W. No sur- land, containing 140 more acres or less. veyor go upon could the land and out mark case, repondents just in that certainty with the location of the south sought in the instant to dis- boundary acres, line north six more regard the words “more or less” used in less, 223. As Block stated in Norris description two tracts. In hold- Hunt, 614: contention, ing against said: such court rule, “The true deduced from the authorities, case, however, to be de- “In seems the instant scriрtion so should be definite and cer- words ‘more or less’ are not attached tain of the instrument quantity face to an estimate of itself, to, writing particular referred land; description of the
255 conveyed that the land can identified with number of acres to intended certainty.” qualified reasonable “more by the words or less.” title, trespass try To in the recover the in Wooten followed rule was This upon strength of must recover the to distin- However, plaintiffs seek case. Wirth, Hejl his own title. 161 Tex. v. ground that on case the guish the Wooten parties 343 (1961). S.W.2d 226 Where case that in description of the land stipulate source, common rests burden writing no reference makes party connect each whereas, de- description, of the in aid source, with the common and to establish specifically case in the instant scription superior title from such source. See acres, or more is 19.09 says the tract Cadwallader, Bosse v. 24 S.W. “according less, less, acres, more or 6 798; Davis, Gale, supra. et ux. Plain- known of what is to the subdivision tiffs discharge fаiled to their burden of Llano Grande La Tract out Blanca proving superior Blanca, out of La Grants, according to and La Blanca the common source. 1, page of in plat recorded Vol. thereof Hidalgo of Records Map and Plat Prior Possession conten- making this County, Texas.” exactly do tion, seeking to plaintiffs are en- plaintiffs are holds that done could not he held what was judgment for title and titled showing map Block case. Wooten question they have the .8 acre in because map of This evidence. in was introduced court proven prior possession. The trial the south where 223 does not show Block prove plaintiffs had failed to found that acres, more boundary of North 6 “the prior possession. that a The Court holds base their entire to run. Plaintiffs less” is Hester, deed from La Blanca to de- acres, not premise argument on the title, only conveyed fendants’ chain of less, on the acres, can located more or purposes. Hester an easement canal map. Since aid of the ground with the conveyed I a fee contend that deed words, used as a “more less” were title, If I simple instead of an easement. unnecessary to part description, it correct, pos- am then description this case whether the decide in session is case. In order to for the use those would be sufficient but my clarify position, by setting I start out State, supra. The words. See Wooten portions of the 1904 Hester deed: descrip- part use these words by presents; these all men “Know destroys statements tion the value of the Agricultural That the La Blanca Com- description. acreage for the * * * pany granted, has sold and Zeppa rely upon presents case does Plaintiffs these Texas, Tex.Civ.App., grant, convey v. Houston Oil Co. sell unto the said Hester, Trustee, County F. ref. A. wr. Texas, description East all case the involved was “the Cameron State of larger boundary parcels those out defi- certain tracts or of land acres” County Hidalgo, nitely and bounds. situated in the described metes Texas, imprоvements holding State of nothing There is with the thereon, holding particularly and more de- which runs counter to either case, scribed in the instant case or the as follows: Wooten supra. respondents in the Wooten 1) description of follows the [Then Zeppa case relied cases similar to the a 10-acre tract.] distinguishing the but this court pointed canal, 2) cited out none cases “Also laterals specification flumes, those cases was the rights-of-way therefor lands, existing now on the First, that, these decisions are: *13 rights-of-way and also further Right Way of Company Oil may required purpose case, 94, that for the Tex. 157 S.W. a [106 739] building, extending by and maintain- deed which grant- terms of the canals, ing ing grants, laterals and flumes clause conveys sells and on, across, purpose irrigation, grantee ‘right way’ a in or over along and a following around the de- tract of conveys only an ease- parcels ment; second, scribed that, tracts or of land to and as in the Cal- * * wit: *. casieu Company follows Lumber [Then case and in description of several Brightwell case, a tracts.] deed which in granting grants, clause sells and along the fol- and over 3) “And also conveys strip tract or of land con- parcels lowing or tracts described veys fee, the title in even though in a conveyed to ‘La land which were subsequent paragraph clause or Company’ by the Agricultural Blanca deed the land conveyed is referred to following persons named to wit: —” right way. description follows the of land [Then dispute.] which includes the land in “It opinion, is our after careful con- decisions, sideration of the deed and the point principal question on this that case is ruled Calcasieu presented to the same as that which was Harris, 18, Lumber v.Co. 77 Tex. 13 case Texas this court for decision 453, S.W. Brightwell v. Interna- 526, Neale, Ry. 151 Tex. Electric Co. v. Co., tional-Great Northern R. 121 Tex. Did con- (1952). 451 the deed S.W.2d 338, 437, 265, 84 A.L.R. easement, vey grantee merely an that to the rather than Right Way Oil right is, right to use the land for a Company case. the case In last men- way, convey in fee? or did it the title tioned granting clause of the deed granted conveyed right ‘the case, recognized court the Neale way, width, two hundred feet in over authorities, but are two lines that there the above-described tract of held (cid:127)clearly distinguished and then the two land’, granting whereas the clause in harmony with the Neale the deed here under construction un- holding that the deed the line of cases grants, conveys grantee sells and to the conveyed fee the title in der consideration ‘the piece parcel described rather than a mere easement. What purport convey land’. It does not equally case in 1952 is said the Neale merely right way merely Neale, applicable to this case. appear easement. There do in the deed question of stating after Court words which show the conveyed merely whether a deed an ease- made, which grant but those ment or a fee title been before the words do not undertake to reduce or many times, said: debase granted what been has from authorities, are “There two lines of fee title to a mere easement.” represented by Right Way the one etc., Co., Gladys City Oil Oil Co. v. recognize, Court should as it did L.R.A., case, 106 Tex. Brightwell S.W. supra, that the decision N.S., 268, Company Calcasieu made in the Calcasieu Lumber Harris, Lumber Tex. Co. case “has become a rule under Brightwell Interna- S.W. titles and securities of immense value Co., tional-Great Northern R. acquired state, have been 49 S.W.2d 84 A.L.R. changed.” should not now be disturbed or stated, Generally where, here, announced especially rules This is true
-257 wholly prove subject grantee, have failed to tion in the first and take argument present record title. The the de- thereto. In the La Blanca in- specific give fendants abandoned the canal basis has no tended to to Hester the purposes, in fact. The failure water in the to have tracts for canal such tracts to definitely canal at a certain de- larger, time cannot have selected out of the destroying provisions scribed boundaries as the need for such .effect clearly La Blanca-Hester deed which show canals arose. Inasmuch as defendants’ parcel predecessor title, a tract or of land was fee than rather *14 just plain- purposes, which to build a canal. an easement for canal proving tiffs land cannot recover said present case, case, In the as in the Neale prior possession, and that supra, granted, La Blanca sold and con- had not been abandoned. veyed parcels “all those certain tracts or land,” trespass try which are described therein. In has title the purport La posses- Blanca-Hester deed does not proving burden of actual merely convey right way pos- or an ease- litigation, sion of the in property parcels ment. de- peaceable, The “tracts or of land” initi- session is exclusive and “prior possession.” only light ate In the scribed in the deed include not acreage, land described said, but also land record in case it cannot be carrying described A law, plaintiffs’ predecessor as canals. canal for matter of Humble, water Mudge Hughes, is real estate. T. exclusive use L. such Tex.Civ.App., testimony dispute. (1919) S.W. wr. .8 acre in “prior posses- hist. raised issue of an fact as to sion” and is- the trial court resolved the part That granting clause against plaintiffs. sue rights above deed which refers to future way may required be so, unduly being unnecessary This it is on, across, irrigation along and lengthen this dissent with a discussion of around the described tracts or position plain- the Court’s that “a break in parcels conveyance land was a an paper leaving appar- tiffs’ chain of title equitable might title to such lands as later outstanding ent party title in third does required and selected to be used as a destroy plaintiffs’ case under the doc- Upon being canal. such selection made prior possession.” My trine of silence as legal (defendants), Hester or his successors respect to this matter in no is to be con- title to such became vested in implying strued as consent to the Court’s them, superior rights any to the subse- position regard. in this quent purchasers оf said land after deed was recorded 1904. See Turner v. Title Limitation Hunt, 131 Tex. denying holding of the trial court (1938). principle,
A.L.R. 1066 This recovery plea under their proposition stands for where a five-year statute of limitations of Texas grantor conveys grantee right to a to se- not before this court. definitely larger lect smaller tracts out of a boundary, grantee becomes described remaining Plaintiffs’ contention that equitable tracts, owner such ex- evidence establishes their title under right selection, ercise his he becomes ten-year limitations, statute of Article legal parcels. vested with title to the selected Vernon’s Annotated Civil Statutes with- granting right the instrument such Where out merit. here, recorded, of selection has been subsequent purchasers out all of tracts It is well order to establish then settled ten-year limita- charged of the described lands are with title under the statute of actual, tions, only notice of selec- must not constructive of such continuous, notorious, Yes, visible, dis- “A. but also Sir.
tinct,
as to
hostile and
such
charаcter
“Q.
words, you
did it with
unmistakably an
claim
indicate
assertion of
permission
their
and consent ?
ownership
occupant.
in the
of exclusive
See Heard et al.
204 S.W.2d
State
(1947).
et
al.,
Plaintiffs’
“A.
[******]
Yes,
we done it with
their con-
part,
based,
possession and
claim is
on
sent.”
property by
re-
use
tenants.
land some time
Humble moved off the
gard,
is well
that a tenant
the law
settled
Thereafter,
August
before
on
1943.
building
a limitation
cannot assist
deed to
executed the
beyond
a landlord
the actual
Reiter,
“north
wherein he
al.,
Fuerstenberg
See
et
Williams v.
leased.
less,”
six acres more or
of Block
Tex.Com.App.,
owner thereof. He stated he was plaintiff Reiter
serting whatever interest acre)
might strip (the .8 have canal public, as a one member District, any- Irrigation
owner in the “like
body along else the canal.” It clear from plaintiffs’ attempt
all foregoing ten-year limitation is not establish requirements of
sufficient to meet the strict
the statutes. judgments of the trial court and the Appeals Civil should be affirmed.
GRIFFIN, J., joins in this dissent. *16 Chappel MORRIS, Appellant,
Robert Texas, Appellee. STATE of
No. 36985. Appeals of Criminal of Texas.
June 1964.
Rehearing Denied Oct.
Hughes Diamond, by & Edward C. Hughes, Paso, appellant. El for Berliner, Atty., Edwin F. Dist. W. Sam Gary, Callan Charles Andrew Asst. Attys., Douglas Paso, Dist. El and Leon B. Atty., Austin, State’s State. BELCHER, Commissioner. pun- maiming,
The conviction is ishment, years. six party, The assaulted Candelario Hernan- bar, dez, operated and also owned sented notes lien. secured a vendor’s authority descriptions. primary tive paid. -The notes have nor been Neither he State, 142 upon by relied them is Wooten v. daughter his has abandoned (1944). There are Tex.177 S.W.2d 56 claim to the north six acres of Block 223. Wooten certain factual differences between They primarily in and case. lie the cir- this The statement of facts discloses the fol- cumstance that Mrs. Reiter’s tract of; lowing with reference to the examination larger con- carved out-of a tract of definite Mr. Cramer as a witness: designated figuration, g., block on a e. “Q.: then, you Now after sold that map. of other considera- recorded Because Humble, you put to Mr. did tions, however, do not de- we need him in of it? applies termine if the rule of Wooten Yes, “A.: sir. descriptions in are re- nor we quired to re-examine such rule order do, “Q.: And anything, what did he if decide this cause. improve land ? 21, 1924, Agricultural July On La Blanca “A.: He contracted with us for clear- Company conveyed the north 19.09 acres ing the native brush from the- Block 223 the La Blanca tract to C. J. land, very and that was done Inc., apparently Engelman, which was shortly purchased it. after he acting agent as a sales and title conduit paid work, And he us for that day, July La Blanca. On the next clearing. Engelman conveyance of the executed its else, “Q.: Cramer, any- if Mr. what Humble, north who there- six acres to T. L. to- thing, did Mr. Humble do daugh- after such to his improve property, besides- ter, that because Mrs. Reiter. It is asserted you clearing he had do? “more or these deeds contained the words “A.; Later, I remember north don’t designation less” purchased. acres, just long title how after he 19.09 acres the north 6 many respects which is similar house a situation built a little property, presented here. “The to that [Wat- there for several on it lived S. Tomlin- claimed title under one G. years.” kins] son, from exhibited a chain title evidence was contradicted. None of this show himself. In order to Tomlinson to indefinite about nothing There was * * * Tomlinson, title in he introduced acreage Cramer of the tract which Mr. parties claiming to sundry deeds from conveyed to company considered his had original grantee of the certif- heirs of the paid purchased and Humble Mr. Humble. they icate, proof make but failed to acres six tract —the north for a six-acre perhaps be ar- could were such heirs.” It Dis- Irrigation The Donna block. record, gued this state of irri- functioning trict laterals had no original shown to vested gation property which facilities heirs, grantee or his unknown undeveloped. wholly was in the brush and Watkins, plaintiff, was not shown that the provide entry in order to Donna original gran- the title of the irrigation was made aft- water for the tract urged here. argument tee. A similar Cramer, manager, had Engelman er