Carter v. Town of La Grange

• Decision Date: 25 January 1884
• Docket Number: Case No. 1660.
• Citation: 60 Tex. 636
• Parties: MRS. E. J. CARTER v. THE TOWN OF LA GRANGE.
• Court: Texas Supreme Court

60 Tex. 636

MRS. E. J. CARTER

v.THE TOWN OF LA GRANGE.

Case No. 1660.

Supreme Court of Texas.

Jan. 25, 1884.

APPEAL from Fayette. Tried below before the Hon. L. W. Moore.

The opinion states the case.

Phelps & Haidusek, for appellant, cited: Scoby v. Sweatt, 28 Tex., 730;Page v. Arnim, 29 Tex., 72; Rev. Code, art. 3194; City of Galveston v. Menard, 23 Tex., 350, and City of Wheeling v. Campbell et al., 12 W. Va., 36.

Timmons & Brown, for appellee.

STAYTON, ASSOCIATE JUSTICE.

This action was brought by the town of La Grange against Mrs. E. J. Carter, to establish the right of the town to, and to have obstructions removed from, a street in the town which Mrs. Carter had inclosed, and to which she made claim.

The appellant pleaded “not guilty” and the statute of limitation of ten years.

The cause was tried without a jury, and a judgment rendered for the appellee.

It appears that as early as 1859 the street in controversy was fenced across, and perhaps inclosed, so far as it ran between certain lots which belonged to the husband of the appellee, either in his separate right or in community between himself and his wife, the appellant. It was thus inclosed by the husband of the appellant, who kept it in that condition until his death in 1867, since which time the appellant had kept up the inclosure and used and cultivated the street continuously.

Mrs. Carter stated, as a witness, that she had claimed the street in her own right, and that she had never recognized the right of any one to open it or take possession of it since her husband's death. She further stated that the possession she held was the possession received by her as survivor in estate of her husband.

During the trial two witnesses stated that in the spring of 1867 the authorities of the town of La Grange thought of taking steps to have such streets of the town as were fenced up opened, or to have from such persons as had fenced streets a recognition of the right of the town in the streets, and to have them opened, and that while this matter was talked of the husband of the appellant told them that he fenced the street in controversy by permission of the town council, and that he agreed to open it whenever the council demanded or desired it to be done. This evidence was objected to, the objection overruled, and this is assigned as error.

We are of the opinion that there was no error in the ruling of the court in this respect; for the declaration of the husband gave character to his holding, and evidenced the fact that his possession was not of such adverse character as to put in motion the statute of limitation. Flanagan v. Boggess, 46 Tex., 337;Word v. Drouthett, 44 Tex., 365;Bradshaw v. Mayfield, 18 Tex., 21;Downer v. Ford, 16 Cal., 346; Wood on Landlord and Tenant, 5, 372; Wood on Limitation, 538, 556.

This action was not brought until May 9, 1882, and it is claimed that the court erred in not sustaining the appellant's plea of ten years' limitation.

The record does not make it clear whether the appellant's ownership of the lots on each side of the street (which is admitted) comes through inheritance as the sole heir of the separate property of her husband, or whether she takes as the survivor of the community; the latter, however, is rendered probable by the testimony of the appellant, who says, “The possession held by me was the possession received by me as the survivor in estate of my husband.” Such is the presumption. It is perhaps not material in which of these ways she held.

If the husband held by permission of the town council his holding was not adverse, and the relation between him and the town was practically that of landlord and tenant. 44 Tex., 365;46 Tex., 337; Wood on Landlord and Tenant, 5, 372; Wood on Limitation, 538, 556.

This being true, his holding could not have become adverse to the town without some open, hostile act indicating clearly an intention to claim adversely to the town. 44 Tex., 365;46 Tex., 337; Wood on Limitation, 538, 539; Bigelow on Estoppel, 407.

No such act is shown, and therefore the court was authorized to hold that the holding of the husband was not adverse to the town.

The appellant took the possession which her husband held “as the survivor in the estate of her husband,” i. e., the husband held permissively, was practically a tenant at will, and as he held so the appellant took; and it would...