Halsey v. Humble Oil & Refining Co.

• Decision Date: 14 December 1933
• Docket Number: No. 2123.,2123.
• Citation: 66 S.W.2d 1082
• Parties: HALSEY et al. v. HUMBLE OIL & REFINING CO. et al.
• Court: Texas Court of Appeals

66 S.W.2d 1082

HALSEY et al. v. HUMBLE OIL & REFINING CO. et al.

No. 2123.

Court of Civil Appeals of Texas. Beaumont.

December 14, 1933.

Rehearing Denied December 20, 1933.

Appeal from District Court, Liberty County; Thos. B. Coe, Judge.

Suit by John B. Halsey and others against the Humble Oil & Refining Company and others. From a judgment in favor of the defendants, the plaintiffs appeal.

Affirmed.

J. A. Wisong, of Beaumont, Llewellyn & Dougherty, of Liberty, and Chas. T. Butler, of Beaumont, for appellants.

E. B. Pickett, Jr., of Liberty, and B. H. Powell, of Austin, for appellees.

O'QUINN, Justice.

This is a suit in trespass to try title brought by John B. Halsey and others on December 5, 1927, against Mrs. L. E. Applegate, Clay Breeden, Sanford T. Breeden, Olive Brown, appellees, and others, to recover a tract of land alleged to contain 640 acres, more or less, a portion of the B. M. Spinks league in Liberty county, Tex., and alleged to be situated in the northwest corner of the south half of said Spinks league.

On January 5, 1928, and February 17, 1930, plaintiffs filed their first and second amended original petitions. These for the purpose of making additional parties defendant.

All defendants, except Mrs. L. E. Applegate, Clay Breeden, Sanford T. Breeden, and Olive Brown, were disposed of by dismissal of some of them from the suit, and by settlements made with others.

Defendants Mrs. L. E. Applegate, Clay Breeden, Sanford T. Breeden and Olive Brown answered by general demurrer, general denial, plea of not guilty, and specially pleaded in defense the three, five, ten and twenty-five year statutes of limitation (Rev. St. 1925, arts. 5507, 5509, 5510, 5519).

A portion of the land sued for by appellants was decreed to them, the appellees not claiming that portion, but that portion of the land sued for which this appeal affects was adjudged to appellees under their plea of ten-year limitation title. Both parties filed motions for instructed verdict which were refused.

The case was submitted to a jury upon the one special issue of ten-year limitation, which was answered in favor of the appellees, and judgment was entered in their favor. Motion for a new trial was overruled and the case is before us on appeal.

Appellants' first nine assignments of error, in different ways, assert that the verdict of the jury in answer to special issue No. 1 finding in favor of appellees on their plea of ten-year limitation was without sufficient support in the evidence, and so against the weight and preponderance of the evidence as to be manifestly wrong, by reason of which the judgment should be reversed and here rendered for appellants, or, if not, then, that the judgment should be reversed and remanded for another trial. These nine assignments are submitted together.

Appellees, in their first counterproposition to appellants' above assignments, say that appellants presented to the court a special charge relating to special issue No. 1, explaining and enlarging the definition of "peaceable and adverse possession" as contained in said special issue, which special charge requested by appellants was given by the court to the jury, and that in requesting the special charge appellants conceded that the evidence raised the issue of ten-year limitation, and therefore cannot now be heard to question the sufficiency of the evidence to raise the issue. This contention must be overruled. Whatever may have been the rule as to situations such as here shown, the amendment to article 2190, R. S., by the 42d Legislature (Gen. Laws 42d Leg. Reg. Sess., c. 78, p. 120 [Vernon's Ann. Civ. St. art. 2190]) permits "a claim that the evidence was insufficient to warrant the submission of any issue may be complained of for the first time after verdict, regardless of whether the submission of such issue was requested by the complaining party." Stark v. R. B. George Machinery Co. (Tex. Civ. App.) 41 S.W.(2d) 1023. The authorities cited by appellants to sustain their insistence applied to the rule of practice before the amendment to article 2190 above noted.

Appellees' second counterproposition to appellants' first nine assignments insists that the evidence not only authorized but required the court to submit to the jury the question of whether or not appellees had title under the ten-year statute of limitation to that part of the land to which the charge applied, and that the finding of the jury in favor of appellees is abundantly sustained by the evidence.

As above stated, the case was submitted to the jury upon one special issue. It reads: "Have the defendants, Mrs. L. E. Applegate, Clay Breeden, S. T. Breeden and Olive Brown, and those under whom they hold, either themselves or through a tenant, had peaceable and adverse possession of a substantial part of that portion of the tract of land sued for by plaintiffs herein, which lies south of the south line of the upper 229 acre tract as conveyed by Sadie L. McManus to W. D. Wilcox on March 21st., 1907, using and enjoying the same continuously for as long as ten years prior to the filing of this suit? Answer Yes or No."

Relative to this issue, the court further charged the jury:

"And to guide and govern you in answering Question No. 1 hereinafter propounded to you, I give you the following instructions: I charge you that the term `peaceable possession,' as used in said question, is such possession as is continuous and uninterrupted by adverse suit to recover the land referred to in said question. The term `adverse possession,' as used in said question, means an actual and visible appropriation of the said land, commenced and continued under a claim of right inconsistent with and hostile to the plaintiffs herein and those under whom they hold. But further I charge you that the term `continuous and uninterrupted,' does not in law mean that the possession cannot cease for any period of time, and I charge you that if you find from the evidence that during certain periods there was gaps or breaks in the fence, if any, which may have inclosed a substantial portion of said land, then if you further find that such gaps or breaks were only temporary and were repaired in a reasonable length of time under all the surrounding facts and circumstances, then, if you so find, I charge you that such temporary gaps or breaks in the fence would not prevent the use and enjoyment which said defendants and those under whom they hold made of the land either themselves or through a tenant, from being regarded as continuous and uninterrupted, or from being regarded as an actual and physical appropriation of the land. And still further I charge you in connection with the question hereinafter propounded to you, that if you find from the evidence that there were periods of time during which said defendants, and those under whom they hold or their tenant, were prevented from pasturing cattle upon the land they had inclosed, if any, by overflows from the Trinity River, which also, at times, hid from view the fences on said land, and if you further find that such periods of time were not unreasonable under all the surrounding facts and circumstances, then I charge you that the fact that such overflows at times prevented the pasturing of cattle upon said land, and also hid from view the fences thereon, would not prevent the use and enjoyment which said defendants and those under whom they hold, and their tenant, made of the land, from being regarded as continuous and uninterrupted, or from being regarded as an actual and visible appropriation of the land.

"And also I charge you that the burden of proof is upon the said defendants to establish an affirmative answer to the question hereinafter propounded to you, and by the expression `burden of proof,' is meant the greater weight of credible testimony."

At the request of appellants, the court gave to the jury two special charges bearing upon and in explanation of said issue, to wit:

"(a) Gentlemen of the Jury: In this case the testimony shows that the defendants, in order to show an inclosure of a substantial portion of the land in controversy, are relying upon a fence for a portion of said inclosure, and upon a bayou as a natural barrier for the remainder of such inclosure, along the east line of such inclosure claimed by them. You are instructed, that a natural object, such as a stream or bayou, may be used as a barrier instead of a fence, if the character of such bayou or stream is reasonably sufficient to prevent the cattle of defendants from escaping from the claimed inclosure, and the cattle of other persons from entering such inclosure, through or across such stream or bayou; but, where a stream or bayou is used as a natural barrier in connection with a fence, which is an artificial barrier, for the purpose of constituting an inclosure, such natural and artificial barriers must be so used as to distinctly show that, jointly, they are relied upon to constitute an inclosure, and that the character of such joint use must be sufficient to notify the true owner and the public that the land is adversely appropriated. And in determining whether said barriers so jointly used are sufficient to notify the true owner and the public that the land is adversely appropriated, the quantity, character and location of the land must be taken into consideration to determine whether such appropriation constitutes a notorious indication of ownership.

"You are further instructed that in order for a bayou or stream to constitute a natural barrier, its character must be such that, under ordinary conditions, cattle would not cross at such places where it is relied on as a barrier; but it cannot be considered as a sufficient barrier taking the place of a substantial fence, if cattle may cross same at will under ordinary conditions."

"(b) Gentlemen of the Jury: For your guidance in answering Question No. 1 in the court's charge, you are instructed that by the term ...