Frazier v. Houston Oil Co.

• Decision Date: 31 October 1913
• Parties: FRAZIER et ux. v. HOUSTON OIL CO. et al.
• Court: Texas Court of Appeals

161 S.W. 20

FRAZIER et ux. v. HOUSTON OIL CO. et al.

Court of Civil Appeals of Texas. Galveston.

October 31, 1913.

Appeal from District Court, Hardin County; L. B. Hightower, Judge.

Trespass to try title by W. S. Frazier and wife against the Houston Oil Company and others. From the judgment, plaintiffs appeal. Affirmed.

Jno. L. Little, of Kountze, for appellants. Hightower, Orgain & Butler and J. D. Campbell, both of Beaumont, for appellees.

REESE, J.

This is an action in trespass to try title by W. S. Frazier and wife against the Houston Oil Company, to recover the title and possession of 160 acres of land, part of the G. W. Brooks survey in Hardin county. Plaintiffs sought to recover upon a limitation title under the statute of limitation of ten years. It was agreed "that the record title was, from 1882 until about the first of 1890, in E. A. Irvin, and from then until about 1898 was in J. P. Irvin, and from that time until July 31, 1901, the record title was in the Texas Pine Land Association, and since the last-named date the record title has been in the defendant. E. A. Irvin and J. P. Irvin and the Texas Pine Land Association are all vendors of the defendant through whom the title passed into the defendant, who now owns all of it, unless the title to the land in controversy has been perfected in the plaintiffs by limitation at any time between the dates of 1875 and the time of the filing of this suit, and is thus owned by them." It was further agreed that plaintiffs' possession began in 1875. The evidence showed that plaintiffs had had actual possession by inclosure and improvements of 12 acres of the land, included within his inclosure. As to the remainder of the 160 acres, the defense rested upon constructive possession of the league in the several owners in defendant's chain of title through tenants, under leases, from 1883 up to the date of filing of the suit, thus limiting appellants' right of recovery to the land actually inclosed. The case was tried by the court, resulting in a judgment for appellants for this 12 acres and for appellees for the remainder. Appellees were adjudged to pay the costs. From the judgment appellants prosecute this appeal. Incidentally, appellants claimed that J. W. Hilton had cut and removed timber from the land of the value of $50, which had been deposited with one Collier to await the event of the suit. For this sum appellees also had judgment.

The first, sixth, and eighteenth assignments of error are addressed solely to appellant's right to recover the 160 acres upon the evidence as to his actual possession under the ten-year statute, without reference to the evidence as to appellees' constructive possession of the entire league (except that actually inclosed) limiting appellant's right to recovery to the 12 acres; the questions arising upon this latter claim being presented by other assignments. As to these assignments, the undisputed evidence seems to bear out appellant's contention as to his adverse possession of the 160 acres sued for, and his right to recover the same, less the several tracts sold by him, except in so far as that right is limited by the constructive possession of appellee and its vendors as aforesaid.

This brings us to the assignments of error from 8 to 11, also the thirteenth and fourteenth assignments of error, which complain of the action of the court in admitting in evidence certain lease contracts entered into by certain persons with the several owners in appellees' chain of title. Under these assignments appellant states the following proposition of law: "Where a tenant in possession of land is holding under a lease which describes the property as the `premises' occupied by the lessee, or in any manner designates the property the tenant is to occupy, the possession of the tenant inures to the benefit of the landlord only to the extent designated in the lease, and the landlord has no constructive possession of the balance of the tract without the designated portion."

Each of the leases referred to was substantially to the following tenor and effect: "The State of Texas, County of Hardin. For and in consideration of the use, occupancy and enjoyment, rent free, of the house, field and improvements, now occupied by me and situated on the league of land in said county granted to G. W. Brooks on the 22d day of August, A. D. 1835, by the government of Coahuila and Texas, and in further consideration of the right granted me to make use of any timber necessary for firewood and to keep in repair the fence and house—part of the improvements, I...