Gulf, C. & S. F. Ry. Co. v. Cusenberry

• Decision Date: 02 April 1894
• Citation: Gulf, C. & S. F. Ry. Co. v. Cusenberry, 26 S.W. 43 (Tex. 1894)
• Parties: GULF, C. & S. F. RY. CO. v. CUSENBERRY.
• Court: Texas Supreme Court

26 S.W. 43

GULF, C. & S. F. RY. CO. v. CUSENBERRY.

Supreme Court of Texas.

April 2, 1894.

Error from court of civil appeals of third supreme judicial district.

Action by W. P. Cusenberry against the Gulf, Colorado & Santa Fe Railway Company for damages caused by fires. From a judgment of the court of civil appeals (23 S. W. 851) affirming a judgment for plaintiff, defendant brings error. Reversed.

J. W. Terry, for plaintiff in error. Sims & Snodgrass, for defendant in error.

GAINES, J.

The appellee brought this suit in right of his wife to recover of appellant damages for the negligent burning of grass upon lands alleged to belong to his wife, and for the negligent killing of a cow, also alleged to be the property of the wife. The lands described in the petition were covered by several patents from the state of Texas, all of which the plaintiff introduced in evidence. He also showed title in his wife, derived through regular chains of conveyances, to all the lands, except to the T. S. Goodman survey of 853½ acres, the southeast quarter of survey No. 67 in the name of the B. B. B. & C. R. R. Co. and to the north half of survey No. 65, patented upon a certificate granted to the same company. The plaintiff only claimed title in his wife to an undivided half of the Goodman survey, and as to that survey claimed a recovery for one-half of the damages only which had accrued upon it. He exhibited in evidence a deed from one Branch to W. P. Cusenberry, E. T. Cusenberry, and D. B. Cusenberry to an undivided one-half interest in that survey, which was recorded February 19, 1883. A deed was also introduced in evidence from one Ricker to W. P. Cusenberry to the southeast quarter of B. B. B. & C. R. R. Co. survey No. 67. No conveyance to either of the Goodman or of survey No. 67 from the respective patentees was shown to either Branch or Ricker. The plaintiff also introduced in evidence a deed dated February 8, 1886, from W. P., E. T., and D. B. Cusenberry to the wife of plaintiff for all of the lands described in his petition, including the undivided one-half interest in the Goodman survey, the southeast quarter of B. B. B. & C. R. R. Co. survey No. 67, and the north half of B. B. B. & C. R. R. Co. survey No. 65. To the north half of No. 65 there was no conveyance exhibited to the grantors in the lastmentioned deed, or to either of them. The plaintiff testified that the lands were inclosed as a pasture in the summer of 1883 by W. P., E. T., and D. B. Cusenberry, and have ever since been adversely held by them, and by his wife, to whom they conveyed them in 1886. He also testified that since the time the lands had been inclosed all taxes on them had been paid by the occupants.

In logical order, the first question in the case is as to the sufficiency of the evidence to show title in the wife of plaintiff to the lands upon which the grass was burned. The court, in its charge, assumed that such title had been proved, and instructed the jury, in effect, to find for the plaintiff, provided they believed from the evidence that the grass had been negligently burned, as alleged in the petition. Counsel for the defendant in error insist that the charge was not erroneous, for two reasons: First, because proof of possession is sufficient evidence of title against a mere wrongdoer; and, secondly, because, as they claim, as to all the land to which the plaintiff failed to show a right in the wife of the plaintiff by a consecutive chain of title from the sovereignty of the soil, he showed title in her by the statute of limitations. Possession of land under a claim of title is sufficient evidence of title in a plaintiff to enable him to sustain an action for an injury to the premises. Express Co. v. Dunn, 81 Tex. 85, 16 S. W. 792; Railway Co. v. Timmermann, 61 Tex. 660; Kolb v. Bankhead, 18 Tex. 228; Parker v. Railway Co., 71 Tex. 132, 8 S. W. 541. But possession is only prima facie evidence of title, and we are of opinion that it is always competent for the defendant in such a case to rebut the presumption arising from possession by showing that the title, notwithstanding such possession, is in another. The patents and deeds introduced in evidence by the plaintiff were in evidence for all purposes, and were as available to the defendant as if offered in its own behalf. The patent to Goodman showed the title to that survey in him, and there was no conveyance to show that he had ever parted with it. So, also, the patent to Willard to the B. B. B. & C. R. R. Co. survey No. 67, and the deed from Willard to Thomas, showed title to that survey in Thomas, and there was nothing to prove that he had ever conveyed the southwest quarter of the section. The patent and the deeds to No. 85, B. B. B. & C. R. R. Co., also brought the title of that survey down to W. H. Thomas, but no further. As to these tracts, therefore, the plaintiff's case must stand, if at all, upon his proof of title in his wife by the statute of limitations. He showed continuous adverse possession, with payment of taxes, of the Goodman survey and of the southeast quarter of the B. B. B. & C. R. R. Co. survey No. 67, under duly-recorded deeds, for the full period of five years before the first fire, which occurred December 3, 1888. This established title in the wife to these tracts by the statute of limitations. In order to defeat the title so established, the burden was upon the defendant to show the disability of minority or coverture, if any such existed. This it did not do. No evidence of title to the north half of survey No. 65, B. B. B. & C. R. R. Co., was exhibited in the wife, save the deed from W. P., E. T., and D. B. Cusenberry to her, which was not executed until the 8th day of February, 1886, and not recorded until the 10th day of that month. The only fire upon this survey that was proved occurred in March, 1890, within five years from the record of the wife's deed, and it was not shown that it occurred on the south half of the survey, the part to which she had shown title by a consecutive chain of conveyance from the state. The burden was upon the plaintiff to prove that the injury was done to land to which title was shown in the wife, and, the evidence leaving it indeterminate whether the burning occurred upon the north half or the south half of the survey, it became important whether she showed title to the former by the statute of limitations.

It is contended on behalf of appellee that, since possession with payment of taxes under a recorded deed was shown to have continued for the full period of five years at the date of the trial, this was sufficient to justify a recovery for an injury to the land in question, which occurred before that time. In this proposition we do not concur. It is quite clear to us that, in order to maintain his action for an injury to the north half of the survey, it was incumbent upon the plaintiff to show that his wife had title to that half at the time the injury occurred. It follows that, in our opinion, the court erred in charging the jury that they should find for the plaintiff if they believed the grass upon the lands was burned by reason of the negligence of defendant's servants. It should have charged that, under the evidence as to title, they could give no damages for the injury done to survey No. 65. The amount of damages claimed in the petition for the injury to this tract was only $30, and the defendant in error offers in this court to remit this sum in the event the court determines that there was error in the charge in the particular in question. Since we have determined that the judgment must be reversed upon another ground, it is not necessary for us to decide whether such remittitur would cure the error or not.

It is insisted by the plaintiff in error that the evidence as to the payment of taxes was not sufficient to have justified the court in assuming in its charge to the jury such payment as an uncontroverted fact. In view of another trial, we deem it sufficient to say that, should the evidence as to possession or as to the payment of taxes be controverted, or be not clear and explicit, the court should submit the question for the determination of the jury.

Under the assignment as to error in the charge under consideration, it also seems to be claimed that there was error in permitting a...