*1 al., Petitioners, H. G. HICKS et
CONTINENTAL CARBON PAPER MANU FACTURING COMPANY OF DALLAS, Rеspondent.
No. A-10329.
Supreme Texas.
Oct. 1964.
Rehearing Denied Nov. 1964. Worth, McDonald, for
Crocker & Fort
petitioners. Dallas, respondent. James,
Tom
PER CURIAM. Ap- judgment of the Court of
peals (380 737) correct S.W.2d 12.14, 122A, Anno- Title
Article Vernon’s Texas Civil is unneces-
tated Statutes.
sary question of for us to consider the in- corporation
whether the charter of the case, right together with its
volved business, subject do to revival
reinstatement. application re- writ of error
fused, no reversible error. Petitioners, al., L. et
Herman SANDERS WORTHINGTON, Respondent.
M. H.
No. A-8659.
Supreme Court of Texas.
July Opinion
Rehearing Dissenting Denied and Oct. Filed *2 Cook, Corman, Shapiro W. & Hous- Joel
ton, petitioners. for Cash, Pardue, Joseph A. W. Wil- Jesse Houston, liams, Lee, Forbes, Lee & Lee & respondent. WALKER, Justice. opinion in
Our former this cause is with- following drawn and the is substituted therefor: respondent, Worthington, brought M. H. trespass try against Mrs. this suit title tenant, Nancy Anderson and her Her- W. trespass man L. Sanders. A action in cross try title was filed Mrs. Anderson Realty Corporation, Gelta the latter as pur- option intervenor and holder of an On chase the land from Mrs. Anderson. jury findings of the favorable to Worth- issues, boundary ington the trial on the disregarded findings court in fаvor of defendants on the issues of limitation respondent. The judgment rendered plaintiffs appealed, and cross defendants and Appeals affirmed. 349 of Civil Anderson, Mrs. her tenant S.W.2d 115. peti- Realty Corporation are Gelta opinion that the trial here. It is our tioners finding disregarding jury court erred petitioners had matured title statute of limitation. following sketch will be assistance boundary dispute, understanding bearing one of the which has some appeal: questions presented by the limitation *3 strip Subsequently, controversy surveyor about is a C. E. land in calling of Davis laid enclosure within the 260 varas wide begin petition as at a stake 330 north of the petitioners, varas described Survey Survey; Gentry southwest corner of the Rice H. 43.90 acres of the W. Rice, go Fry Survey. Its with the west lines north 50.62 acres of the Francis map by large Fry Gentry Surveys 3193 varas to indicated on the corners are hub the southeast corner of Section thence 12. The figures Francis; controversy loca- west to the and then counter- is the east-west boundary Rice, Gentry with the Francis and Bowman clockwise of the west lines of tion point Surveys. Respondent beginning. is the also sur- large Fry Davis *4 13, Fry, veyed Gentry large on the same and Sections 14 and 56 of the record owner day, surveys T. adjacent and to H. & but his field notes these which are east of Ry. Survey jury. re- No. hereinafter were excluded from the C. Co. He ferred contends to as Section boundary controversy in the The stems Gentry dispute strip the in is located analysis is last from the fact that there part it is Fry. insist that and Petitioners uncertainty considerable as to the true east- they by title hold record Section which Survey, west of the Clarkson which location and through and under I. Williamson W. is and one-half miles east about two wife, ac- Rebecca. I. his W. Williamson dispute as Section 55. Whilе there is no conveyance by quired in the the and south location of north controversy. He land in which included the surveys, mentioned lines of of the above in and and each and his wife died many years two there are and have been for respective devising all of their left a will placing conflicting basic and theories son, H. T. The estates to their Williamson. on west lines of the Clarkson the east and latter, and be- who died devised and monu- ground. The stakes other queathed his and estate to all of Trott, in the field *5 Ann.Tex.Civ.Stat., 5509, to Vernon’s land veys Respondent’s in the area. contention which, аctually jury findings, is supported by recognized generally is the part Fry. Gentry As we view of the and occupational ground and the location on case, unnecessary it is for us to the con- Clarkson, Surveys.
the Wood and two Jones any questions. sider of these adopted theory apparently Petitioners’ was occupation present those who laid out the year the ten Petitioners’ claim under 14, lines of 55 and the Rice. Section Section statute, 5510, Article Ann.Tex. Vernon’s accepted Mabry, the State was also possession based on and Civ.Stat., is use of Surveyor in did who extensive wоrk property by The first of three tenants. Mabry’s during area but most of Beeler, these tenants was ran cattle on who jury. At reports were excluded from the land time in from 1918 until some 1935. suit, respondent his the time instituted possession There is a break in the between therefore, following was the situation tenant, and the Holt. Beeler next Beeler surveys respect as used with to the various in left the land and Holt went into ground: Section on the Spring Paddock of 1938. Rice, Jones, Sur- Clarkson and two Wood part all of during used the veys approximately full east-west had their intervening ap- years, it does not three but ex- (2) there an east-west distance' was pear holding through that he was then and and Egbert; in 300 varas cess of about under H. T. Williamson. The Court of shortage of some (3) was an there east-west Appeals that there is a concluded large Fry, Gentry, 300 varas in small petitioners’ “floating” break in of one Fry 13. and Section Beeler, possession through adverse and that boundary in to dispute was resolved Holt’s cannot be tacked that findings jury’s in Both and Holt used respondent’s favor of Beeler. Beeler livestock, respondent grazing and 2 Special 1 response Nos. land for Issues (1) corner of the contends that the enclosure within which the northwest that: merely Survey point “A” on was incidental at Clarkson lines of the map; (2) that the west and therefore that their Surveys meaning large Fry are the line not Gentry and adverse within map. attempt not through 5 on limitation statutes. “6 to 9” as shown We do begin questions there but with deciding that decide of these without assume We findings. again support Paddock when moved these he .cattle evidence..to
915 232; Rep. Green, pasture after vacated the Doe v. into the Holt Gow Nicoll, premises. Eng.Rep. Bing. Carne v. Eng.Rep. ap- N.C. 1183. This leased Section SS H. T. Wil- Holt from proach has been criticized at least one period through liamson for the from 1938 authority, pointed eminent out that the who January 1942. He left on ordinary man not would know his oc- began using premises April Paddock cupancy presumption raised he was Subject urged 1942. to two contentions premises simple. the owner of the in fee by respondent support trial court’s Morgan, Against See Declarations Interest finding in disregarding jury’s action Texas, Tex.Law Rev. 399. Be that response Special Issue No. there may, Paddock’s statement is not admis- support is evidence to conclusion against sible aas declaration interest even Anderson, H. T. and Mrs. cited, just under the cases because he was tenants, through their peaceable held of the land at the time. question adverse of the land period years for a aof little over Other courts hold that the declarations of beginning entry with Paddock’s occupant an of land that he was the tenant of another are admissible as Paddock obtained his lease from first gestae, pos res accompanying act of January 14, 1943, peti- Williamson on but it, explanatory prove session un tioners offered Paddock’s der whom he held. See v. Price’s West foreman, Atkins, to show Paddock Heirs, 380, 381; Marsh. Cle (Ky.) J. J. holding during under Williamson Wheeler, 53; Brolaskey ments Ga. employer Atkins testified that his instructed McClain, 61 Pa. Richmond Cedar begin him using pasture. the Williamson *6 Co., v. Works Foreman Blades Lumber 4th According witness, to the Paddock also Cir., early F. 267 363. The Texas cases fall pasture, stated that it was his that he had category, into this and we have no found subleased it from Holt for the remainder of dealing recent decisions here or elsewhere 1942, and that after 1942 he it would lease problem. Berry, with Harnage See directly from Williamson. The Court of Hall, 43 Hooper Tex. Tex. 30 Appeals testimony concluded that this Wilcox, Wallace v. Tex. In 60. Dunn v. hearsay is probative and without force to Taylor, Tex. S.W. it was show that holding through Paddock was occupant said that the declaration of an of and under Williamson during 1942. Pad- land is admissible “to show relation of prior trial, dock died petitioners tenant,” attempt but landlord no was contend that his statements are admissible explain why made that is so. as against declarations interest also as person verbal acts of a of Legal generally agree writers that land. gestae” vаgue is and im term “res so precise meaning holding There are in its been used a number cases has of indiscriminately that a statement it should one in of courts so that entirely. indicating land that he be There are various held as the tenant abandoned types is be another admissible utterances that are said to ad as declaration against example, gestae. as interest. The there reasoned missible res For courts spontaneous prima that since is facie evi declarations made title, physical dence fee or nervous excite declaration that stress shock possessor exception only rights ment admitted as a true to the of a tenant are against hearsay prove of the facts interest in it lessened rule to the truth that quantity type of utterance which the estate which the law stated. Another presume frequently would to as res otherwise he had. have referred See courts Watson, gestae Here the Eng. Peaceable v. is the verbal act. Taunt. so-called will, all, person law, hearsay because it to hold another be is not at declaration purported if prove of the latter the truth of facts not оffered to is claimed at the because the mere landlord to own asserted. It is received that significance time and there no evidence the oc legal utterance of words has was, cupant fact, holding through they true. un regard to are or whether without person. Apparently Evidence, der third that is Wigmore on 3rd ed. some See §§ Wigmore he what Professor meant when signify that said declarations “[s]uch occupant of land by an Declarations occupation the declarant’s were done acts of clearly acts when admissible verbal are as alleged behalf of his landlord and such n offered Pro solely purpose what for the acts will therefore acts of be occupa Wigmore “coloring calls fessor landlord, provided only that the latter im tion.” Statements one them, adopted claim of and his then title are thus porting of title in himself á claim adoption.” Wig suffice as an would oc parts his act received “as verbal West v. Price’s more See also § adverse cupation, serving give it an Heirs, supra. this conclusion Once disclaim, (cid:127)color; while his declarations reached, necessarily it follows Atkins’ equally re titlе, conceding are another’s testimony hearsay was admissible is not but contrary it color.” giving ceivable as proof act on the of a relevant verbal that the Wigmore fact 1778. The mere § of Paddock. uttered, regard to words were without above, first writ- As indicated Paddock’s true, show that whether are tends to lease from was dated H. T. Williamson occupancy was or not adverse. ending January a term 1943. It was for premises December and the leased Atkins’ that Paddock n saidhe had subleased from described in as follows: the instrument ad Holt is not however, was, missible, prove there parcel “All of the tract or certain fact, in which Holt a bilateral transaction lying being in Harris land situated considered leased to Paddock. If offered County, Texas, and de- and known hear clearly purpose, constitutes scribed as 609 out of Section acres say sound and does fall within *7 3, Survey, H. & R. R. Co. Block T. C. hearsay exception rule. The courts to 360, 106, No. Patent Vol. Certificate their rationalize have made little effort to 28/2069.” occupant an holding that the declarations of n ofland under might show written ex- be received to were leases or There written may devel This havе each Pad- whom he held. rule of leases for tensions thereafter, practical diffi and in each in- oped a concession as to dock’s any proof culty obtaining substan- the land described strument the.facts sug- may tially be an unintentional out None of them other manner. as set above. perversion dec intended to admits the lessor gest of the doctrine that on their face that purpose occupant any limits of Section beyond land larations lease possession. In event the coloring Anglo- firmly in our became embedded rule findings in re jury's ago, Under many years jurisрrudence American 2, Special 1 and Nos. every sponse to Issues accepted court by and almost has been Gentry and controversy strip in lies In defer question has arisen. in which the Surveys. it is not above, Fry Since cited Texas decisions ence to the description legal by therefore, covered substan hold as a matter of we Paddock’s leases, respondent insists this where in a as such tive law case benefit of to the issue, posses could not inure by prescription is title Wood, v. Niendorff cites Williamson. He processed by occupant who land an sion of
917
Tex.Civ.App.,
(writ ref.);
estopped
field, 227 Mich.
N.W. 918. See
Morse,
56 A.2d
also Abatiell
Vt.
SMITH,
(dissenting).
Justice
Shilling,
N.J.Super.
Coggins v.
Although
respectfully
I
dissent.
We
that the trial court
A.2d 171.
hold
*9
been,
opinion
thoroughly
has
considered
peti
judgment for
should have rendered
sustaining-
by this court
heretofore delivered
jury’s
to
tioners on
basis of the
answer
ques-
upon every
respondent
material
Special Issue No. 5.
tion,
mo-
itself on
this court now reverses
holding-
of
Respondent
rehearing
the extent
had a number of cross-
tion for
to
claim,
points
Appeals,
petitioners
in
on their
in the
and he
Court of
favor
the-
perfected title under
attention in his brief here.
that
had
calls them to our
statute,
ten-year
Texas
limitations
Article
Beeler and
The land
between
Holt.”
Civil Statutes.
fenced then. The
Vernon’s Annotated
fence would turn cattle.
testimony
This is the
Atkins’
extent of
about
present opinion recognizes that the
possession”
the “adverse
of
for
Williamson
respondent is the
the land in con-
owner of
years 1936,
early part
1937 and the
troversy and
to recover
would he entitled
left,
up
apparently gave
Holt
the same hut
its conclusion that
premises,
January,
in
be-
1942. Sometime
Atkins,
hearsay testimony
Paddock’s
Atkins,
13, 1942,
April
according
fore
foreman,
bridges
gap
in the
Atkins,
foreman,
Paddock instructed his
January,
January,
between
begin
pasture. Pad-
using the Williamson
the date
between
lease contract
witness, Atkins,
dock
that
also stated to
Williamson
This court’s
and Paddock.
pаsture
January
it
after
opinion,
former
in which I concurred
he, Paddock,
Holt
that
had subleased from
opinion,
written
held:
year,
for the remainder of that
after 1942
from
‘floating’
he would lease it
William-
“In view the
break of one
tenancy
son. This
evidence of a
re-
year
possession,
break of
is not
Beeler’s
lationship
years
between
and Paddock.
Beeler and
Williamson
about three
between
Holt,
testimony
This
slightly
fails to establish that
and the break of
more
Paddock,
discharged
Petitioners have
their
burden
than
between Holt and
showing affirmatively
properly
the facts with refer-
the triаl
held as a matter
court
year,
ence
petitioners
during
failed to
to their use of the land
of law that
Watson, Tex.Civ.App.,
years
ad-
1942. See
prove
Bowles v.
any
consecutive
hist.;
added.)
possession."
(Emphasis
S.W.
wr.
Mhoon v.
verse
no
Cain,
(1890);
77 Tex.
14 S.W.
original
its
still adheres to
Rock,
Deep
Orsborn v.
153 Tex.
upon
rely
view that Petitioners cannot
;
Wooten,
(1954)
Tex.
S.W.2d 781
Moore v.
Beeler,
begins
claim-
but
Id.,
Com.App.,
(1926);
Tex.
were of law on conclusions the cannot Petitioners recover under the ten- plaintiff-witness, year and con- though of statute of limitations even it possession. by stituted no evidence 2 was of established that evidence 74, p. Beeler, 38. of the tenants Plolt and § Tex.Jur. pe- ten-year Paddock a was for continuous gaps “Other riod. ten- This for reason that these appellee by sought he filled tes- ants went into under a written tifying occupation by that les- between agreement lease which does not describe or pasture ‘had a sees he man’ there controversy. include The tes- land up ‘keep the fences’ around the en- timony possession throughout that shows There evidence closure. was no that was no different in when character than appellee cultivating was or otherwise began. actually using land in the enclosure. It is well settled the mere main- that When under an owner of claims land tenance of or other im- fences around pos- statutes limitation virtue of provements land, unaccompanied by (the here) session tenant he of a situation use, open not occupancy actual does possession only is deemed have of that possession as constitute such adverse which, land of as between him and his ten- support a limita- will claim of title ant, latter has under lawful ; tion constructive alone In terms of the lease contract. this 82, 43; p. not sufficient. 2 § Tex.Jur. case, 1934, lease Beeler for the Niday Cochran, Tex.Civ.App. v. 42 55, specifically only described Section 292, S.W.1027, refused. writ description being: exact timony, and continuous ing conclusions of law and satisfactory proof fact, [*] “We are of the falls far consisting almost [*] peaceful, short of [*] ' opinion that this tes essential adverse, [*] generalities of entirely ato [*] clear and exclusive use show [*] 28/2069.” land Patent Block H. & T. C. R. R. Co. County, “All that certain tract or ed as 605.086 acres lying 3, 360, Texas, Volume being and known out of situated Certificate and describ- parcel in Harris Survey, No. 55, limitation title support land as will only introduced, Although one lease ; Art. R.S.1925 the statute. under it is Beeler’s that he clear from 43; p. 74, p. § § Tex.Jur. held I con under a written lease. land Tex.Com.App., Wooten, v. Moore occupancy clude the land each Id., Tex.Com.App., 742; 283 S.W. S.W. every year written virtue of the 235; Welder, 153; Murphy 58 Tex. v. lеase agreement. The tenants in this case Kahanek, 132 Production Co. v. West held restrictive Posses under leases. 328; v. Gibbs .2d Tex. S.W land in con sion these tenants of the Corbett, Tex.Civ.App., 292 S.W. beyond extending troversy, as it did Tex.Civ.App. Cochran, Niday leases, inure did not terms the written ”* * * 1027. 93 S.W. See 1 to the benefit of Williamsons. Pad- competent evidence There is no Supp., p. Adverse Ten Year Tex.Jur. prior dock held 41a; Possession, v. Fuersten Williams Sec. Tex.Com.App., Nien berg, 23 S.W.2d opinion Furthermore, I am Wood, Tex.Civ.App., S.W.2d dorff extending tenants, beyond possession of Landers, ref.; Tex. Brownlee v. wr. leases, does tеnant written the terms Civ.App., 166 S.W.2d the Williamsons. inure to benefit ments notes mentioned widow, Nancy W. who is now Mrs. Henderson, as mark- Bringhurst and Davis Anderson. surveyed ing the the tracts corners of Respondent would have not been found. surveys are involved sets of senior Two place Clarkson corner of the southeast Laid in to each other. which do not tie line pipe in the north at an and stone iron Dement, Egbert, from east west were of the west of the Dement 215 varas east Wood, Clarkson, Wood, Jones, large small Bayou, give prong and thus of White Oak Fry, Gentry, large Fry Rice and small Sur- of the calls controlling effect to one Dement, veys. Egbert The and Clarkson contend Trott’s field notes. Petitioners three-survey leagues are a sur- block 1/3 system Dement-Egbert-Clarkson veyed by Henry September 21 Trott and on by dis- 22,1838. Surveys course and must be reconstructed Next were the two Wood March, by fol- made Henderson corner of tance from the southeast Gentry Surveys lowed and Dement. Jones Bringhurst August Bringhurst on how Rice, Fry map above shows surveyed large and The mentioned also surveys in the area Fry May is the small on which the location adoption of each of these surveying group of are affected the lаst done on this occupied surveys. be It also shows the group will two theories. senior other surveys. different opposite map and and lines of the end of the east west found at the oc- enough between and the distance consists of the Francis There William Egbert and Surveys. cupied line of the These sets of senior east Bowman two Francis and occupied lines surveys adjoin east do not call and do not surveys intervening lay in all adjoin. Bowman jury petitioners accordance with against and with- found their field notes limitation, petitioners’ twenty-five year out overlaps confliсts or if statute theory locating accepted response Special Nos. but in Issues Clarkson three, as sound. If and 5 found their favor southeast corner of the placed year jury pipe Clarkson is at and five and ten statutes. Since the iron stone strip question respondent, (1) as contended there is: also determined that the Fry, the approximately Gentry excess be- is located in the an 300 varas occupied Appeals petitioners tween the and west of Civil held that east lines Egbert; ap- of title as re- (2) shortage failed to show title or color statute, proximately quired by year the three Article varas the true between Ann.Tex.Civ.Stat., Fry because Gentry, large west lines of the Vernon’s occupied Rice it concluded that under the record there on the one hand east overlapping 55 into lines of the Francis could be no of Section and Bowman on the Gentry held that Fry. other. also payment acreage taxes on rendered Neither of these theories has been fol- support a of Section 55 claim would consistently by lowed who located the those statute, of title under the Article five present occupation sur- lines of the various