Cook v. Winter

• Decision Date: 27 October 1947
• Docket Number: No. 5819.,5819.
• Citation: 207 S.W.2d 145
• Parties: COOK v. WINTER.
• Court: Texas Court of Appeals

207 S.W.2d 145

COOK v. WINTER.

No. 5819.

Court of Civil Appeals of Texas. Amarillo.

October 27, 1947.

Rehearing Denied November 24, 1947.

Appeal from District Court, Hansford County; Jack Allen, Judge.

Suit in trespass to try title by W. U. Cook against T. K. Winter, who filed a cross-action for title to and possession of part of the land involved. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

Sanders, Scott, Saunders & Smith, of Amarillo, for appellant.

Clayton Heare, of Amarillo, and Frank M. Tatum, of Dalhart, for appellee.

PITTS, Chief Justice.

This is a trespass to try title suit involving a strip of land containing 53.8 acres extending across the southernmost part of Section 111, Block 2, G. H. & H. RR. Co. survey situated in Hansford County, Texas. Appellant, W. U. Cook, filed the suit on November 28, 1944, to recover the said entire section giving its metes and bounds. Appellee T. K. Winter answered with a general denial, a plea of not guilty, and interposed a cross action for title and possession to the said 53.8 acres only, which is within appellee's enclosure and is described by metes and bounds in his pleadings. Appellee further pleaded the ten year statute of limitations as a defense to appellant's alleged action and in support of his claim to the land.

The case was tried to a jury which found in favor of appellee on the question of limitation and judgment was rendered accordingly from which an appeal has been perfected to this Court. Appellant had moved for an instructed verdict and he later moved for judgment non obstante veredicto but was overruled in both instances.

The record reveals that in the year 1916 appellee bought Section 112 of the same block lying immediately south of and contiguous to Section 111 and that appellant bought the said Section 111 on August 3, 1929. The record further reveals that there had been two surveys made of the block in question both of which surveys affected the two sections. The first survey was made by T. O. James some years prior to 1916, the exact time not being shown by the record. Howard Trigg made the second survey in 1929 which resulted in the location of the recognized common boundary line between the two sections and which revealed that both sections had excess acreage. The locations of the common corners between the two sections by the two surveys made being different, resulted in a discrepancy of 53.8 acres of land, the same being the strip above referred to, which discrepancy, together with the claims of the parties to the land in question, caused the filing of this law suit. The record shows that for some time prior to 1916 the strip of land in question was completely under fence and enclosed together with Section 112, although the strip was later recognized as a part of Section 111. Prior to 1916 there was also a field in the northeast corner of Section 112 which field included a part of the strip in question. The field was about .6 of a mile square, contained about 265 acres, and included a little more than one-half of the strip of land in question. The fence along the north side of the field separated it from the remainder of Section 111. For some time prior to 1916 the north fence of the field extended due west to the northwest corner of Section 112 as the same had been located by the T. O. James survey helping to enclose Section 112 together with the strip in question, but that part of the fence between the northwest corner of the field and the northwest corner of Section 112 as established by T. O. James had been removed when appellee bought Section 112 from George V. Spivey, leaving an opening between it and Section 111. However the corners still had the markers that had been placed there by T. O. James. Appellee testified that Spivey took him on the grounds in 1916 and pointed out to him the four corners of Section 112 as they had been established by T. O. James before selling the land to him and that Section 112 then contained the strip of land in question but it was not then known that the said strip of land was actually a part of Section 111. He further testified that the said section had inprovements on it and he lived on it a large part of the time until he sold it to Jim Rowan in 1929; that he bought it back from Rowan and repossessed it in 1931, at which time the fence had been rebuilt between the northwest corner of the field heretofore mentioned and the northwest corner of said Section 112 as the same had been located by the T. O. James survey; that the said Section 112 together with the strip in dispute was all enclosed when he bought it back from Rowan and that it had remained enclosed and he had owned and held continuous possession of it since 1931. He testified that he had occupied it four years immediately after 1931 and kept a tenant on it the remainder of the time. The record also reveals that appellant and appellee by mutual agreement sometime after 1931 opened a road between them along the line established by T. O. James and built a lane 60 feet wide, each furnishing 30 feet of the lane and his own fence, leaving the remainder of the strip in question under fence with appellee's Section 112. At a later date the road was made wider by order of the County Commissioners Court and the lane was made 100 feet wide with each party furnishing 50 feet of the lane and his own fence, continuing to leave the remainder of the strip in question enclosed with appellee's Section 112.

Appellant predicates his appeal upon seven points of error which we shall discuss in the order that seems most logical to us.

Appellant's first point of error, complaining that the trial court erred in holding that the ten year adverse possession statute was available to defendant because the land was not patented by the State until August 11, 1944, is not well taken. We find that the State of Texas by original patent awarded to Fred P. James, assignee, Section 111, containing 640 acres on February 22, 1875. A resurvey of the said section in 1929 by Howard Trigg disclosed that Section 111 contained 686.1 acres or an excess of 46.1 acres and that the excess acreage was found to be on both the north-south and eastwest sides of the section. On August 11, 1944, a deed of acquittance was executed by the State of Texas to Fred P. James, assignee, his heirs and assigns, to all of Section 111 covering 686.1 acres, which obviously covered the excess acreage along with the 640 acres. Such was done upon the application of appellant, filed in the general land office on June 7, 1944, under the provisions of Section 4, House Bill 9, Regular Session of the Forty-Sixth Legislature, the same being Article 5421c — 1, Vernon's Annotated Civil Statutes. The said act authorizes any owner of a survey containing excess acreage, who desires to pay for such excess acreage, to apply for such and upon a proper showing a deed of acquittance shall be executed covering such land in the name of the original patentee or his heirs or assigns. This act did not repeal or modify the former law governing adverse possession.

Obviously all of the strip of land in question could not have been excess acreage in Section 111. But, be that as it may, Section 111 was awarded to Fred P. James, appellee's predecessor in title in 1875. The strip of land in question was some time a few years later annexed to Section 112 and remained so thereafter, however the Howard Trigg survey in 1929 showed it was actually a part of Section 111. Although the fence was removed for a distance of less than one-half mile between the two sections, leaving an opening prior to 1931 for a time between them, the said fence had been rebuilt some time prior to 1931 enclosing the said strip of land again together with Section 112 and it remained so thereafter. Appellant observed continuously the use of the land in question by appellee for a period of time much longer than ten years before he asserted a claim to the land in question by filing this law suit.

The rule is well established that a right or title to land such as will sustain an action of trespass to try title can be lost by a proper claim of adverse possession. We believe appellant and his predecessors in title each had such an interest in the land in question as would have entitled either of them to have maintained an action of trespass to try title and that such a title may therefore be lost by a proper claim of adverse possession. Dutton v. Thompson, 85 Tex. 115, 19 S.W. 1026; Wingfield v. Smith, Tex.Civ.App., 241 S.W. 531; Whitaker v. McCarty, Tex.Com.App., 221 S.W. 945; Young v. Williams, Tex.Civ.App., 80 S.W.2d 399, 2 Tex.Jur. 32, Section 13. Appellant's first point of error is therefore overruled.

Appellant complains in his fifth point of error that the trial court erred in permitting the jury to consider any ten year period of time prior to November 28, 1944, in determining the period of adverse possession instead of limiting the jury to the period between 1931 and November 28, 1944.

Rule 277, Texas Rules of Civil Procedure, provides that when a case is submitted to a jury upon special issues, the trial court shall submit it upon special issues raised by the pleadings and the evidence. In the instant case the sole issue to be determined was that of limitation by adverse possession, consequently only one special issue was submitted to the jury, and it was submitted in the following language: "Do you find from a preponderance of the evidence that the defendant, T. K. Winter, has held peaceable and adverse possession for ten consecutive years prior to November 28, 1944, of the 53.8 acres of land in Section No. 111, Block 2 G. H. & H. RR. Co. Survey in Hansford County, Texas, lying immediately south of the fence located on the south boundary line of the public highway running east and west across said section?" The jury answered the special issue in the affirmative.

Appellant objected at the proper time to submitting the...