Galindo v. Alexander

• Decision Date: 09 April 1952
• Docket Number: No. 12375,12375
• Citation: 248 S.W.2d 171
• Parties: GALINDO v. ALEXANDER et al.
• Court: Texas Court of Appeals

Page 171

248 S.W.2d 171

GALINDO v. ALEXANDER et al.

No. 12375.

Court of Civil Appeals of Texas, San Antonio.

April 9, 1952.

Rehearing Denied May 7, 1952.

Lloyd & Lloyd, Alice, for appellant.

Perkins, Floyd & Davis, Alice, for appellees.

POPE, Justice.

Appellees commenced this trespass to try title suit against appellant, Galindo, who defended on the grounds that he and his predecessors had matured title by adverse possession under the ten-year statute of limitations. A jury made favorable findings in support of the limitation plea, but the court rendered judgment notwithstanding the verdict. That judgment should be affirmed if the evidence shows that Galindo and his predecessors were permissive tenants, since they never gave sufficient notice of an adverse claim. The judgment should be affirmed even though they were not permissive tenants, if their claim was not shown to be hostile. The nature and quality of the claim depends upon whether certain words in a deed from Galindo's grantors were conclusive against the grantors' assertion of the necessary hostile claim.

Galindo claims through and under Rafael Saenz and wife, who put him in possession of the land in June of 1943. The jury found that Galindo and his predecessors, Rafael Saenz and wife, had matured limitation title for a ten-year period prior to July 25, 1949. It found also that Rafael Saenz and wife had matured another ten-year limitation period of adverse possession prior to February, 1944. These are the findings that the court set aside. It is apparent that Galindo, if he can prove adverse possession, must rely upon a claim that was hostile on the part of Mr. and Mrs. Saenz, his grantors.

The dispute concerns 111 acres of land out of what is known as the 'surplus tract.' That tract is bounded on the east by a large ranch owned by appellees. Immediately to the east of the surplus tract, a part of appellees' ranch, is a long strip of land running from north to south, known as Share 1 out of the Palo Blanco Grant. The surplus tract is bounded on the west by another long strip of land also running from north to south, known as Share 6 out of the Palo Blanco Grant. All these tracts are out of the same grant and derive their names from designations assigned them in a partition proceeding in 1905. The partition decree set Share 1, east of the surplus tract, over to appellees' predecessors, and set Share 6, west of the surplus tract, over to Francisco Sanez Pena. In the partition proceedings, the surplus tract between those two shares was found to be sandy and valueless, and for that reason the court ordered it sold. The surplus tract was sold by the sheriff to the then owners of Share 1, so that appellees' predecessors then owned both the surplus tract and Share 1.

The evidence showed that before the partition proceedings were completed, and several years before the sale of the surplus tract as a part of those proceedings, some of the co-tenants owning the Palo Blanco Grant, met at a water-hole known as San Pedro Charco Redondo, located on the property. They butchered a sheep, spent the day, and walked over the sand dunes located on the surplus tract. They concluded that a fence could not be constructed across the sand dunes, and the jury in this case found that the owners of the several tracts then agreed that a fence would be built so as to skirt the dunes on the east and that the fence would later be moved to the true boundary when the dunes disappeared. A fence was built to the east of the dunes with the result that the disputed tract was included within the pasture of Share 6, which several years later by the partition decree was awarded to Francisco Saenz Pena. Neither Pena, in whose pasture the disputed tract was located, nor his heirs, were present at the meeting at San Pedro Charco Redondo. Other owners were not present. A permissive tenancy does not arise from an agreement to which neither the claimant nor any of his predecessors are parties. A single witness told of the agreement and he stated that during all the intervening years he had kept it a secret from the record owners as well as the claimants to the disputed tract.

Francisco Saenz Pena died in 1906 after the partition proceedings, including the sale of the surplus tract, were fully closed. He was survived by six children, one of whom was Rafael Saenz, under whom Galindo claims the disputed acreage either by deed or privity of possession. After their father's death, Rafael, his brothers and sisters took possession of and jointly used Share 6, which they inherited, as undivided owners. They grazed stock upon it, and since there was no fence dividing their Share 6 from the disputed portion of the surplus tract, they used it also. In 1910 Rafael married and he and his wife then began living in an old house that formerly belonged to his father. About a year later he built a small house on the disputed surplus tract. He dug a well and equipped it with a pump. He erected corrals and kept cattle, horses, mules and chickens on the land. He and his wife tilled a small field where they raised cotton, corn and cane for about five years. These operations continued unmolested until about 1919 when they determined that they could no longer fight the onsloughts of the sand, and they moved their home to a place about two miles from the disputed tract. They had already given up their farming operations on the land, but they never ceased to use the land for grazing, which under the evidence was the use for which it was suited. During all of thirty-eight years the tract was used for grazing, and for almost fifty years it was fenced on the east and south, so that it was excluded from the pasture of the record owner, and included with Share 6. The fences were maintained in good repair, capable of turning livestock, but in 1947 appellees commenced a fence along the west line of the surplus tract and that precipitated this suit.

It is urged that the possession was in subordination to the partition decree and was a permissive tenancy. The evidence fails to show sufficient notice to the record owners that an adverse claim was asserted, and such notice is necessary to change an inceptively permissive use into a hostile use. Robinson v. Smith, 133 Tex. 378, 128 S.W.2d 27; Brown v. Bickford, Tex.Civ.App., 237 S.W.2d 763; West Lumber Co. v. Sanders, Tex.Civ.App., 225 S.W. 828; 2 C.J.S., Adverse Possession, § 87b(3)(a). But the possession in this case was not permissive in its inception. The record fails to show that Francisco Saenz Pena ever occupied the surplus tract at any time after the 1905 partition decree. The record fails to show that h...