Angelina County Lumber Co. v. Reinhardt

• Court: Texas Civil Court of Appeals
• Writing for the Court: ANDERSON
• Citation: Angelina County Lumber Co. v. Reinhardt, 285 S.W.2d 446 (Tex. Ct. App. 1955)
• Decision Date: 15 December 1955
• Docket Number: No. 5078,5078
• Parties: ANGELINA COUNTY LUMBER COMPANY, Appellant, v. Julius REINHARDT, et ux., Appellees.

Page 446

285 S.W.2d 446

ANGELINA COUNTY LUMBER COMPANY, Appellant, v. Julius REINHARDT, et ux., Appellees.

No. 5078.

Court of Civil Appeals of Texas, Beaumont.

Dec. 15, 1955.

Rehearing Denied Jan. 11, 1956.

Collins, Garrison, Renfrow & Zeleskey, Lufkin, for appellant.

Ross Hightower, V. A. Collins, Livingston, for appellee.

ANDERSON, Justice.

Julius Reinhardt and wife, as plaintiffs, sued Angelina County Lumber Company to recover 29.29 acres of land in Polk County, and specially pleaded the ten-year statute of limitation as to the basis of their claim to title. The defendant answered by plea of not guilty and cross-acted in form of trespass to try title. Trial was to a jury. The trial court overruled the defendant's motion for judgment on the jury's verdict, partially disregarded the verdict and rendered judgment in favor of the plaintiffs. The defendant, without having filed a motion for a new trial, has duly perfected its appeal from the judgment so rendered.

At the outset of the trial the parties stipulated: (1) That the defendant holds record title to the land. (2) That plaintiffs were in actual possession of the land, using it continuously, from November 11, 1918, to January 1, 1946. (3) That, because of a tenancy agreement that had been entered into by the owner of the land and one of plaintiffs' predecessors in possession, plaintiffs took possession of the land as constructive tenants of the owner. There was in dispute, therefore, only the matters of whether the plaintiffs ever repudiated their status as tenants and claimed the land adversely, and, if so, whether notice of such repudiation and adverse claim was visited on the owner of the land more than ten years before January 1, 1946.

The stipulation that plaintiffs entered into possession of the land as constructive tenants of the owner was made in deference to the holding of this court on a former appeal of the case, Tex.Civ.App., 270 S.W.2d 259 and is contrary to the position taken by plaintiffs during the previous trial. This court held that evidence which defendant tendered, but which was excluded on plaintiffs' objections, would have established as a matter of law that plaintiffs did in fact enter into possession of the land as tenants, and that the exclusion of the evidence was error. In stipulating as they did, therefore, plaintiffs merely accepted the law as it had been declared by this court. They did not concede that they consciously took possession of the land as tenants, but maintained the contrary. They also maintained that they claimed the land as their own from the commencement of their possession of it.

On June 29, 1918, plaintiffs purchased land that adjoined the land in controversy and with which the land in controversy was under a common fence; and in taking possession November 11, 1918, of the land they had purchased, they also took possession of the land here involved. Plaintiff Julius Reinhardt testified that he thought at the time that it was a part of the land he had purchased and that he did not learn the contrary until a survey was made in October of 1936. He also testified that during all the time he was in possession of it he claimed the land as his own.

Except for the fact that they took possession as tenants, the evidence, taken together with the stipulation, would unquestionably support a finding that plaintiffs acquired title to the land by limitation. However, since they did take possession as tenants of the owner, it was necessary, before limitation could begin to run in their favor, that they repudiate the tenancy relationship and give the owner notice thereof and of their adverse claim. Thompson v. richardson, Tex.Com.App., 221 S.W. 952, 953; Mhoon v. Cain, 77 Tex. 316, 318, 14 S.W. 24; Buford v. Wasson, 49 Tex.Civ.App., 454, 109 S.W. 275, error refused; 2 Tex.Jur. 144, Adverse Possession, Sec. 75; 27 Tex.Jur., 75, Landlord and Tenant, Sec. 22. Proof that they did this and thereafter held adverse possession of the land for ten consecutive years was essential to their right to recover, and the burden of this proof rested on them.

The plaintiffs recognized this, and to show repudiation of the tenancy relationship and notice thereof to the owner they undertook to prove that in October of 1932 they cut and removed from the land a considerable quantity of timber and that just after they had done so Barron Thompson, while in the course of this employment as an agent of the owner of the land, discovered that the timber had been cut and removed, and was informed by plaintiff Julius Reinhardt that he (Reinhardt) claimed it. They make no claim to having otherwise given the owner of the land notice that they were repudiating, or had repudiated, the tenancy relationship and were claiming the land adversely. They do not contend that aside from cutting and removing timber from it they made any use of the land that was inconsistent with the tenancy relationship. Neither do they contend that notice of their act of cutting and removing the timber should be imputed to the owner irrespective of whether either the owner or its agent had actual notice thereof. Instead, they rely upon actual notice to Thompson and upon the legal principle that notice to an agent in the course and scope of his employment is notice to the agent's principal.

To establish when the timber was cut and removed and that at about the same time Barron Thompson knew it had been cut and removed by plaintiffs and was apprised of their claim of right to it, plaintiffs relied upon the testimony of plaintiff Julius Reinhardt and of Barron Thompson himself, whom they called as a witness.

Reinhardt testified that during October of 1932 he cut and removed from the land an estimated forty thousand feet of timber, and that right afterwards Barron Thompson, who it is claimed was then an agent of the owner of the land, questioned him about it. His version of the conversation he claimed to have had with Thompson was as follows: 'Q. What was the substance of the conversation you had with him (Thompson)? A. He said, 'Didn't you cut some of Lynch Davidson's timber,' and I said 'I claim it."

Thompson gave almost identically the same account of the alleged conversation: 'Q. Did you ask him (Reinhardt) any questions about it (the timber cutting)? A. Well, the timber was logged out there to Binford, and I asked Mr. Reinhardt, 'Aren't you putting out some of Lynch Davidson's timber? Q. What was his reply? A. He said, 'I claim it. " He furthermore corroborated Reinhardt's testimony that the timber was cut in October of 1932, and testified that he himself saw at the time where it had been cut. He also testified that while in his company Lynch Davidson, president of the defendant company, saw some of the logs alongside the railroad awaiting loading, asked by whom they were being put out, and was told-by Thompson-that they were being put out by Julius Reinhardt. However, he did not claim to have told Davidson that the logs had been cut on defendant's land, and testified that he never reported to the company or to any of its officials that Reinhardt had cut and removed timber from the land in question.

The defendant concedes that plaintiffs cut and removed timber from the land, but not that this occurred as early as October of 1932. Evidence, in form of the opinion of one who qualified as an expert witness, was introduced to prove that the timber was cut not more than a year or a year and a half prior to October of 1936. It follows, of course, that defendant does not concede that in October of 1932 Barron Thompson learned that the timber had been cut and removed by plaintiffs, and conversed with Julius Reinhardt and Lynch Davidson regarding it. It does concede, however, that in October of 1936 it or its predecessor in title was apprised of the fact that plaintiffs had cut and removed the timber. The land was surveyed at that time, along with other land that defendant or its predecessor in title owned in the same vicinity. The survey was made under the direction of Sid Sherman, who, during March of that year, had succeeded to the position theretofore held by Barron Thompson; and on October 14th Sherman advised his principal by letter that plaintiffs had cut and removed the timber and had sold it to Edens-Birch Lumber Company. On the following day the principal acknowledged receipt of Sherman's letter and directed Sherman to ascertain the quantity of timber that had been taken. An estimate of the quantity was then made, and on March 2, 1937, demand was made on Edens-Birch Lumber Company that it pay for 64,362 feet of timber. No representation was made, however, that all of the timber for which payment was demanded had been taken from the land in controversy, but only that it had been cut by Julius Reinhardt from the A. Johnson survey, of which the land in controversy is a part.

Both the conversation Thompson and Reinhardt testified they had and the one Thompson claimed to have had with Lynch Davidson were represented as having been unattended by any third person, and Davidson had been dead a number of years when the case was tried. There was available to the defendant, therefore, no witness who could contradict the testimony of Thompson and Reinhardt regarding the alleged conversations. Furthermore, if the timber was in fact cut in October of 1932, there was, in the very nature of things, no means by which the defendant could disprove Thompson's claim to having seen evidence of the fact at the time. Evidence was adduced, however, which tended to discredit the testimony of both Thompson and Reinhardt, if not actually to controvert it. For example, not only was there the evidence, already mentioned, which tended to prove that the timber was cut considerably later than October of 1932, but proof was made that when his deposition was taken before the first trial of the case Reinhardt made no mention of having had a conversation with Thompson regarding either the land or...