Hardy v. Bumpstead, 1248-5626.

• Decision Date: 22 July 1931
• Docket Number: No. 1248-5626.,1248-5626.
• Citation: 41 S.W.2d 226
• Parties: HARDY et al. v. BUMPSTEAD.
• Court: Texas Supreme Court

Page 226

41 S.W.2d 226

HARDY et al. v. BUMPSTEAD.

No. 1248-5626.

Commission of Appeals of Texas, Section B.

July 22, 1931.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Suit by C. J. Bumpstead against G. W. Hardy and others. To review a judgment of the Court of Civil Appeals [18 S.W.(2d) 821] affirming a judgment for plaintiff, defendant brings error.

Reversed, and judgment rendered for defendant.

Smith, Crawford & Combs, of Beaumont, for plaintiffs in error.

Coe & Briggs, of Kountze, and A. M. Huffman, of Beaumont, for defendant in error.

LEDDY, J.

Plaintiffs in error are the record owners of the land in controversy and entitled to recover the same unless defendant in error has title under the ten-year statute of limitation.

In order to justify the conclusion that title has been perfected by defendant in error under the provisions of the ten-year statute (Rev. St. 1925, art. 5510), it must appear his possession and use of the land has been continuous and uninterrupted for the required period of time. If there is a break in the continuity of his possession, it devolves upon him to show that it only existed for a reasonable period. Dunn v. Taylor, 102 Tex. 80, 113 S. W. 265.

A careful consideration of the facts shown by this record convinces us that the continuity of defendant in error's possession was broken in 1925 for a period of more than eight months, an unreasonable length of time under the existing circumstances; hence he has failed to show the required continuous and unbroken possession of the premises in controversy for the complete statutory period.

The evidence discloses that defendant in error, with his family, consisting of a daughter and two minor sons, went upon this 106-acre tract of land in 1917. At the time he moved on the place, there was a small shack or building located thereon which he floored and moved into. He cleared and inclosed a tract of about two acres near the house and built a small chicken house and smokehouse, these buildings being eight by ten feet in size, and constructed of pine slabs. The small tract of land inclosed was gradually enlarged by clearing from year to year up to 1922, when it embraced about five acres within the enclosure. There was no enlargement of the inclosed portion after that time. It appears defendant in error raised crops upon the five-acre tract each year, with the exception of 1925, which consisted of corn, potatoes, and vegetables. At different times he had some hogs and chickens upon the place. His daughter married and left the place in 1920, the two sons remaining with him until 1924, when one of them moved to the state of Arkansas. In 1922, the dwelling was destroyed by fire, and defendant in error moved into a little crib and smokehouse on the place, and remained there, making a crop within the small inclosure during that year. In 1924, he built a one-room house out of lumber cut from the premises, and lived in this house with his son. In 1925, no crop or garden was cultivated on the place. During that year, defendant in error and his son moved to other premises two and a half miles from the land in question and resided on what was known as the Daniels place, where they cut railroad ties on their own account. They cultivated no crop on the premises in question, and made no other use of the land during the year 1925, except the son occupied the house during the trapping season, which terminated about the first of March, 1925. From that date until 1926, the place was not used or cultivated in any manner, outside of occasional visits to the house by the father and son, who stayed all night there perhaps once or twice a week. It was in evidence that, when defendant in error and his son moved to the Daniels place in 1925, they took with them a part of the household goods and left a portion, as well as some plow tools. The record is silent as to what household goods remained in the house or the condition thereof, nor does it disclose the number or character of plow tools left on the place. It was not shown whether the house was locked so as to prevent its use by strangers during the time defendant in error resided at the Daniels place.

Does the evidence, when considered in the most favorable light to defendant in error, show that there was such a break in the continuity of his possession in 1925 as to prevent the perfection of title under the ten-year statute of limitation? We think it does.

To constitute adverse possession, the party occupying the land must in some way appropriate the same to some purpose to which it is adapted. While actual residence on the land is not essential to constitute adverse possession (Cantagrel v. Von Lupin, 58 Tex. 570), it has been determined that the possession referred to by the statute means an actual residence on the land, or such continuous and uninterrupted cultivation, use, and enjoyment of same as to be visible, notorious acts of ownership sufficient in character to give notice to the owner that his land is being adversely claimed by another. Kimbro v. Hamilton, 28 Tex. 560; Carlock v. Willard (Tex. Civ. App.) 149 S. W. 363, 365; Texas Jurisprudence, vol. 2, § 39.

Nor is the mere fencing of the land or erection of other improvements thereon sufficient to constitute adverse possession, unless accompanied by actual occupation or open use. Niday v. Cochran, 42 Tex. Civ. App. 292, 93 S. W. 1027.

"When yearly crops are raised [on the place]," says Justice Williams, in Dunn v. Taylor, 102 Tex. 80, 113 S. W. 265, 268, "it may be that actual occupancy of a tenant for...