Chittim v. Auld

• Decision Date: 05 January 1949
• Docket Number: No. 11903.,11903.
• Citation: Chittim v. Auld, 219 S.W.2d 702 (Tex. App. 1949)
• Parties: CHITTIM et ux. v. AULD.
• Court: Texas Court of Appeals

219 S.W.2d 702

CHITTIM et ux. v. AULD.

No. 11903.

Court of Civil Appeals of Texas. San Antonio.

January 5, 1949.

Rehearing Denied February 9, 1949.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Thirty-Eighth District, Real County; K. K. Woodley, Judge.

Suit in trespass to try title by William Auld against J. M. Chittim and wife. Judgment for plaintiff, and defendants appeal.

Reversed and rendered.

Morriss, Morriss & Boatwright and Swearingen & Miller, all of San Antonio, for appellants.

Ross Powers, of Leakey, C. H. Gilmer, of Rocksprings, and Weatherby & Pollard, of Kerrville, for appellee.

MURRAY, Justice.

This suit in trespass to try title to 52.7 acres of land located in Real County, Texas, was instituted by William Auld against J. M. Chittim and wife, Thelma Chittim. The trial was before the court without the intervention of a jury and resulted in judgment for William Auld and against the Chittims, for the title and possession of the 52.7 acres of land. The Chittims were allowed the sum of $1,766.25, being the value of improvements placed in good faith upon the land, less the rental value of the land. The Chittims have appealed.

The Chittims and William Auld own adjoining ranches, the Chittim Ranch lying to the west of the Auld Ranch. This suit, in effect, has to do with the location of the boundary between these two ranches.

What is now known as the Chittim or Holmes Ranch was, prior to 1893, owned by Captain Charles Schreiner, and what is now the Wm. Auld Ranch was, prior to 1893, owned by Mary Wilson, a feme sole. In that year Mary Wilson executed what is here referred to as a "fence deed" to Capt. Schreiner, whereby she conveyed to him a one-half interest in a fence described as, "Half interest in and to my wire fence which fence is built around my pasture on the Frio Water Hole in Kerr County, Texas, said fence is situated and runs along or near the line of Survey No. 23, * * * Survey No. 1817, * * * Survey No. 1, L.I.A.A., State Survey No. 172, * * * State Survey No. 170, * * * giving and granting the said Charles Schreiner a full half interest in and to the above described fences." The deed further provides that Schreiner is to keep the fence up for the year 1893, Mary Wilson for the year 1894, and thereafter they shall alternate each year in keeping the fence in repair. The deed was signed and acknowledged by Mary Wilson.

In 1895 Capt. Schreiner, by the execution of two deeds, conveyed to Wm. P. W. Holmes seven surveys, including the south half of Survey No. 519. Under these deeds Holmes went into possession of what was afterwards known as the Holmes Ranch, and used, occupied and enjoyed the same, running sheep, goats and saddle horses thereon until the time of his death, which occurred in 1934. Wm. P. W. Holmes always claimed and occupied the land to this partnership fence, under a belief that his deeds called for the land to the partnership fence, including the 52.7 acre strip herein involved. The 52.7 acre strip was finally located by a survey made shortly before this suit was filed as being in Survey No. 1, referred to in the fence deed, and also as lying west of the partnership fence, or, in other words, as lying in the Holmes pasture. Wm. P. W. Holmes was in the peaceful, actual, open, notorious and pedal possession of this 52.7 acre strip from the time he went into possession of his ranch under the deeds from Capt. Schreiner in 1895, until the time of his death in 1934, under a belief that the strip had been conveyed to him by the Schreiner deeds.

The trial court's findings of fact No. 16 and No. 18, are as follows:

"16. It was not the intention of Wm. P. W. Holmes nor his heirs to claim the land in suit or any land that might be in the Holmes pasture, if it was not called for or covered by the deeds under which they held. It was the sentiment of Wm. P. W. Holmes never to claim or intend to claim anybody's land by limitation, and the claim made to all the land to the east fence was under belief that it was included in his deed from Capt. Schreiner."

"18. The possession of the land in suit by Wm. P. W. Holmes and his heirs, was not adverse, there being no intention to claim the land if it was not included in their deeds."

We are of the opinion that the finding to the effect that Wm. P. W. Holmes did not intend to claim this land unless it was included in his deeds, and that he did not intend to claim it by limitation, is without support in the evidence. It is not shown that Wm. P. W. Holmes ever said or did anything that indicated that he was not claiming this 52.7 acre strip against the world. There is evidence that he thought it was his and that he thought that he had acquired it by his deeds and thought that the partnership fence along his east line was the true boundary line between his ranch and the Wilson or Wm. Auld Ranch. It is true that two of his sons testified, in effect, that in their opinion their father was the kind of a man who would not claim land by limitation and that he would not claim it unless it was covered by his deeds, but these opinions were expressed after the Holmeses had parted with all claim to this land, and long after the death of Wm. P. W. Holmes. The evidence is clear that Wm. P. W. Holmes during his lifetime did believe that this 52.7 acre strip was included within his deeds and that he did claim and enjoy it as his own until the time of his death, a period of some thirty-nine years. Whether he would have acted differently and have claimed differently if he had believed differently cannot be established by the opinion testimony of his two sons after his death and after the Holmeses had parted with the title and possession of this land. Panhandle & S. F. R. Co. v. Hoffman, Tex.Civ.App., 250 S.W. 246.

It is true, the evidence shows and the trial court found, by finding No. 17, that at other points of the outside boundaries Wm. P. W. Holmes made adjustments with adjoining owners, recovering lands outside of his enclosure and giving up land within his enclosure, but these adjustments were made by mutual consent between other parties and related to other fence lines. He always claimed that the east fence was on the true boundary line and he always claimed to this east fence line. He may have claimed to this east fence because he felt that the fence deed established this fence as being a true boundary line, or he may have claimed the land because he thought it was covered by his deeds from Capt. Schreiner, but it matters not why he claimed it, the fact remains that he did claim it for about thirty-nine years, and died without ever renouncing his claim, either by act or word.

It is also clear that Wm. Auld considered this east fence to be on the true boundary line and did not have any idea that he owned land west of this partnership fence. His first suspicion to that effect arose in 1929, when they were surveying the Love land. We refer to it as a suspicion because the following year he erected a deer proof fence at great expense along the old line, thus fencing out the 52.7 acre strip. It was not until 1938, when the State Highway No. 483 was being surveyed that he definitely concluded that some of his land was in the Holmes pasture and that he wanted it. By that time Wm. P. W. Holmes had been dead for some four years. Thus it seems that for many years both owners were of the opinion that this fence was the true boundary between their respective ranches and that each owned only the land on his respective side of this partnership fence.

Appellee, William Auld, had set aside to him the western portion of Survey No. 1, L.I. & A.A., in a partition deed in 1920, and at that time he went into possession of that part of Survey No. 1, set aside to him, which is situated east of the partnership fence, but he had no idea that he owned any land west of that fence and he made no claim to any there located. It was not until 1929 that he began to suspicion that he might own land west of the partnership fence, and he was not convinced that a part of Survey No. 1, extended beyond the partition fence until in 1938. Appellee did not prove title to the sovereignty of the soil or to a common source, therefore, his only claim to the land is by prescription under the statutes of limitation. Art. 5507 et seq., Vernon's Ann.Civ.Stats.

We are of the opinion that Wm. P. W. Holmes under the undisputed evidence was in the actual, peaceful, adverse, open and notorious possession of the 52.7 acre strip in controversy, using, claiming and enjoying the same for some thirty-nine years, and that he thereby established limitation title to the same, and at his death this title passed to his heirs.

The facts are undisputed as to all material matters and while the trial court held that the possession by Wm. P. W. Holmes of this land was not adverse, this was a question of law under the undisputed evidence and not one of fact, and such legal conclusion is not binding upon this Court. In McLendon v. Comer, Tex. Civ.App., 200 S.W.2d 427, 430, it is stated: "where the facts are undisputed, it becomes a question of law for the court to determine as to whether limitation title has been ripened in the defendants, and is not an issue for the jury's determination."

The record shows that Wm. P. W. Holmes went into possession of the 52.7 acre strip in the year 1895, under the belief he had purchased it from Capt. Schreiner and that it was included in his deeds. He held actual, visible, pedal, open, notorious and peaceful possession of this land, occupying and claiming it as his own and using it for the only practical purpose for which it was adapted, that of grazing sheep, goats and horses, continuously, up until the time of his death in 1934. During all of that time no one questioned his title, and he never did or said anything to indicate that he was not claiming this land against the world. He did say at one time that he knew that his fence was not on the true line, but...