Delany v. Padgett

¶4HUTCHESON, Chief Judge.

¶5Filed July 2, 1949, the suit was for the title and possession of 78.32 acres of land in the John Sellers League in Galveston County, Texas.

¶6The claim was that plaintiffs and those under whom they claimed had record title to the land sued for under the muniments their abstract of title disclosed.

¶7The defenses were: (1) a denial that plaintiffs had record title, in that, as shown in one of their muniments,1 the land it described as set apart to plaintiffs’ predecessor in title is not the land sued for; and (2) a claim of title by adverse possession under the ten year statute of limitations of the State of Texas for ten years from and after April, 1938.

¶8The case was tried to, and fully heard by, a jury, and, upon plaintiffs’ motion for verdict made at the conclusion of the evidence, there was a directed verdict for plaintiffs and judgment entered for them.

¶9Appealing from the judgment, defendant is here insisting that, for the reasons set out in his answer: (1) that the land awarded to plaintiffs’ predecessor in the partition decree is not the land sued for, and plaintiffs have not shown record title; (2) that the defendant showed a title by limitation to it; and (3) that, at the least, the evidence made out a case for a jury verdict on the two issues of record title and limitation; it was error to instruct a verdict for plaintiffs. We do not think so.

¶10Defendant makes no claim to having record title to the land. Indeed, unless he has acquired a title by adverse possession, he is admittedly a naked trespasser without shadow or right. At worst for plaintiffs, the evidence shows no more than a mistake made by the surveyor, who furnished the field notes for the partition decree, as to the location of the west line of the Sellers Survey.

¶11In these circumstances, defendant finds himself hard put to it in law to maintain his claim that plaintiffs, whose title is un*808assailed arid unassailable except for this surveyor’s error, have not made out a record title at least sufficient for recovery against him, a naked trespasser.

¶12The district judge was of the opinion that the mistake in the distance calls of the field notes furnished by the surveyor for the partition decree was rendered harmless by the overriding call for the west line of the Sellers Survey. He was of the opinion, too, that after fifty-eight years of recognition of the correctness of the decree and of the location of Parcel “E”, as claimed by plaintiff under the field notes in their deeds, it does not lie in defendant’s mouth to challenge either the efficacy of the decree or the location of the parcel in question.2

¶13We agree with this view for we are of the opinion that if, considering the partition as a whole, the mistake of the surveyor carried into the field notes is an error in the decree requiring rectification, this is a matter, not for defendant to raise against plaintiffs, but for one or more of the co-partitioners, and, since they have not raised it, defendant may not.

¶14Whether a re-partition is, or will be, necessary, plaintiffs stand sufficiently seized of an interest in the survey to maintain this suit on behalf of all against the defendant as a trespasser.3

¶15On the issue of record title, then, we are in no doubt that the district judge was right in directing a verdict for plaintiffs, and that, in doing so, he must be sustained.

¶16Upon the issue of limitation, also, the district judge was of the clear opinion that the defendant had not made out a case for a jury verdict, and for the reasons stated, and the authorities cited, in the memorandum4 he read to the jury, he in*809structed a verdict for plaintiff on this issue too. While we are not prepared to, and we do not, adopt as our own all of the reasons *810he gave for doing so, we are in full accord with the general principles announced, and a reading of the record convinces us that the verdict was rightly instructed.

¶17It is true that the statutes of limitation, compliance with which gives full title by adverse possession precluding all claims, declare that the entry must be made and continued under a claim of right.

¶18It is also clear that, as interpreted by the courts, they do not require any belief on the part of the possessor that he has any right to, or claim upon, the land except that evidenced and ripened by his open and notorious possession. Houston Oil Co. v. Brown, Tex.Civ.App., 202 S.W. 102. These same authorities do, though, make it perfectly clear that the claim of right referred to in the statutes means a bold and open, a downright and persistent claim asserted not furtively by stealth and artifice, but openly, notoriously, unequivocally, adversely and continuously. Because this is so, the decisions under these statutes take pains to leave in no doubt that if there is any break or chink in the armor of proof which a possessor must put and keep on when he undertakes to acquire a title by limitation, such as a single lisp of acknowledgment, the slightest uncertainty or equivocation in the openness and down-rightness of his claim, a failure to comply precisely and exactly with the statutory provision, it is, and will be, fatal to the claim. Thus, as the decisions cited by the district judge show, one cannot support a claim of adverse possession, that is, that, by enclosing it, he has taken the land into such possession as will support a limitation title, when all that he did within the ten year period was, for the purpose of running cattle inside the enclosure thus formed, merely to run connecting lines between two or more existing fences and across a public road which, after two days, was opened again, a cattle guard being furnished by the county authorities.

¶19Neither can one who, as here, runs cattle on a pasture thus enclosed, claim title by adverse possession to a particular tract when the pasture contains many tracts of land held under separate ownerships and distinct chains of title, as to some of which he recognizes the title of the owner, merely because this tract is included in this general enclosure. Especially is this so when, as here, the defendant’s possession was qualified by a most general agreement with Mr. Maco Stewart, that he was not claiming adversely any of the lands in his pasture that belonged to Mr. Stewart or to any of Mr. Stewart’s clients.5

¶20*811Under testimony of this kind, in order to start limitation running as to tracts situated with reference to the enclosure, as plaintiffs’ land is, it would he essential that it be possessed, used, and cultivated in such a way as to unequivocally give notice of defendant’s adverse claim to it, as distinguished from other lands in the same pasture as to which he admits he was making no claim.

¶21We agree with the defendant: that the policy of this state, as set out in the statute of limitations of ten years, and in the decisions construing them, is to give effect to an adverse holding by a naked possessor when it measures up to the statutory requirements; and that where there is any credible evidence giving support to the required legal elements of the claim, the question is for the jury. There can be no doubt, though, that the burden to maintain it rests heavily on a person making the kind of naked claim made here under circumstances of the kind this record discloses, and that, if his claim is wanting in any of the legal aspects of such a claim, a verdict may and should be directed.

¶22The defendant is an officer of the law, a justice of the peace, a respected member of his community. His office and his standing in the community for integrity and upright dealing with his neighbors, as shown by his testimony as to his dealings with the Stewarts, presents a picture which is legally incompatible with the claim he makes here. This is: that the casual kind of fencing of the large tract and the use that was made of the land for running cattle was not with the neighborly intent of using the land by the sufferance of his neighbors, but with the unneighborly one of taking it away from them, and that this unneighborly intent was made unmistakably manifest to those neighbors.

¶23Situated thus, he could not, by the casual joining of fences and the mere pasturing of cattle within the enclosure thus conveniently formed, acquire a title to plaintiffs’ land without bringing clearly home to plaintiffs by open, hostile, and unequivocal acts that he had included plaintiffs’ land in the pasture with the intent to misappropriate it.

¶24The shelves are groaning with books containing decisions of the 'Texas courts dealing with claims trader this statute. The general principles they lay down are not in dispute. The difference in the cases arises entirely out of the application of these principles to the differing facts. It would serve no useful purpose for us to gather and catalogue some of the many thousands of the opinions which have been written. It will be sufficient for a statement of the general principles to refer, as typical of them all, to the recent case of Rick v. Grubbs, 147 Tex. 267, 214 S.W.2d 925, 926. There the court, after quoting from Art. 5515, its definition of adverse possession, quoted from Satterwhite v. Rosser, 61 Tex. 166, at page 171: “It is well settled, that, where a party relies upon naked possession alone as the foundation for his adverse claim, it must be such an actual occupancy as the law recognizes as sufficient, if persisted in for a long enough period of time, to cut off the true owner’s right of recovery. It has been said that such possession must not only be actual, but also visible, continuous, notorious, distinct, hostile, and of such a character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant. … The possession must be continuously and consistently adverse to the true owner. … ” (Emphasis supplied.)

¶25It then went on to say: “This statement of the law was quoted with approval as the rule consistently followed by this Court in the recent decision of Heard v. State, [146] Tex. [139], 204 S.W.2d 344, 347.”

¶26The cases cited and relied on by appellant, of which Peveto v. Herring, Tex.Civ. *812App., 198 S.W.2d 921, seems to be the most depended upon, are not to the contrary of the views announced hereinabove. In Peveto’s case and in the other cases the facts were greatly different.

¶27The district judge was right in holding upon the record in this case, that the claim of defendant to a title by limitation had no basis in law or in fact, that the case was not one for a jury verdict on that issue, and that a verdict for plaintiffs should be instructed. The judgment was right. It is affirmed.