Hinds v. Killough, 6897

Decision Date21 December 1959
Docket NumberNo. 6897,6897
Citation332 S.W.2d 101
PartiesClem HINDS et ux., Appellants, v. J. A. KILLOUGH et al., Appellees.
CourtTexas Court of Appeals

White & White, Lawing & Hazlett, Borger, for appellants.

Gibson, Ochsner, Harlan, Kinney & Morris, Sanders, Scott, Saunders, Brian & Humphrey, Amarillo, for appellees.

CHAPMAN, Justice.

This is an appeal from a summary judgment granted all appellees, J. A. Killough and others and Lanhom Development Corporation. The record properly before us is upon motions for summary judgment filed by appellees, sworn pleadings, stipulations, an affidavit, and depositions of Clem Hinds and wife, Margaret Hinds. The suit was instituted on July 16, 1958, by J. A. Killough and others against Clem Hinds and wife, Margaret Hinds, for simple trespass against the surface interest only of the West half of the West half of Section 14 Block Y, M. & C. Survey, Hutchinson County lying south of the south right-of-way of State Highway No. 152 between Borger and Pampa, subject to various outstanding rights-of-way, easements and deeds enumerated in the pleadings. By cross-claim appellants Hinds disclaimed as to all the property except the N.W.1/4 of the S.W.1/4 of the named section and asserted title to it by virtue of the ten and twenty five years statutes of limitation. By such action they also included Lanhom Development Corporation, asserting title by adverse possession against them as to that portion of the N.W.1/4 of the S.W.1/4 of said section 14 lying north of said State Highway 152. The Hinds will be referred to as claimants, appellants, or by their names, Killough and others as Killough and the Corporation as Lanhom.

It was stipulated and agreed by all parties that Lanhom owned record title to the surface estate of the area included in the 40 acres north of State Highway No. 152 and Killough owned record title to the surface estate of that area in the 40 acres south of said highway, both subject to the claims of title by adverse possession in appellants and subject to the rights-of-way, easements and deeds enumerated. The land in controversy is shown on the map included in this opinion.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The record indicates Clem Hinds acquired the working interest of an oil and gas lease on the 40 acres here involved in 1929 and in February of 1930 his wife Margaret Hinds, with her separate funds constructed a house upon the property for use by herself and family. Her sworn pleading in a suit filed in 1939 recites 'said construction and placing and locating of said building being with the consent and approval of the owner of the surface rights in and to said tract of land.' It is without question in the record that the claimed 40 acres was not enclosed for any 10 year limitation period. A small garden plot within the 40 acres was enclosed for a period prior to 1943, but as we shall later demonstrate it was not for a 10 year period in which there was an exclusive adverse possession.

The testimony fails completely to establish title in appellants under the 25 years Statute of Limitation. Appellants so admitted in their brief so we shall not further mention that statute.

As part of the summary judgment evidence appellees took the depositions of both appellants. Clem Hinds asserted in effect that he started claiming the land immediately after a law suit was filed against him about 1939, but we believe other testimony in his deposition clearly eliminates any beginning claim prior to 1943. He asserted that he grazed cattle on the land in controversy until '1942 and 1943.' He further testified in the deposition as follows:

'Q. And that all the time you had one to three head of milk cows roaming there, out there with other cattle roaming around on this land too? A. That is right.

'Q. Watkins sometimes, Killough sometimes, and just strays, dairy herds? A. Dairy herds and everything else on there.'

We assume the testimony of Clem Hinds concerning grazing his cattle on the land in controversy constituted part of the facts by which he attempted to establish his adverse possession. Limitation title cannot be acquired by grazing cattle on unenclosed land if that fact alone is the only adverse showing. Orsborn v. Deep Rock Oil Corporation, 153 Tex. 281, 267 S.W.2d 781; De Las Fuentes v. Macdonell, 85 Tex. 132, 20 S.W. 43. But even if grazing his cattle should be said to constitute some of the facts going toward a showing of adverse possession, under the record in this case it could not have had a beginning date prior to 1943. With the legal owner, Killough, and others not in subordination to the claimants grazing cattle on the same land until 1943 that requisite quality of exclusiveness necessary to claim title by limitation was not present.

The statutory definition of adverse possession expressly requires that such possession be exclusive. Article 5515, Vernon's Annotated Civil Statutes. 'Any sort of joint or common possession by the claimant and the owner or tenant of the owner prevents the possession of the claimant from having the requisite quality of exclusiveness. In such circumstances the law refers the possession to the person having legal title.' 2 T.J.2d pp. 141-142; Riddle v. Vandiver, Tex.Civ.App., 225 S.W.2d 460; Rick v. Grubbs, 147 Tex. 267, 214 S.W.2d 925. Therefore, in order for appellants to ripen their ten years limitation period they would have to do so after 1942 before they could establish title thereby.

In 1934 S. D. McIlroy, R. S. Killough and others owning an undivided interest in the property in controversy conveyed a strip of land to the State Highway Commission for the Borger to Pampa Highway, State Highway 152, constructed about that time. The construction of said highway separated the property shown on the map as Lanhom from the improvements where appellants actually resided and where they still reside on the part of the 40 acres south of the highway. Such sale and the construction of said highway severed the property north of the highway from the improvements.

The record shows that in 1951 Killough, Landhom's predecessor in title, deeded to the State of Texas a 120-foot strip off the west side of the property running from the north side of State Highway 152 entirely across that part of the 40 acres lying north of said highway. The deed was filed for record on April 24, 1951. The Hinds never made any demand for payment for said 120-foot strip. Such action of the record owner certainly interfered with the possession of the adverse claimants to that part north of the highway because same was taken away from them and put into a street. We believe the exercise of such ownership by the record owner was sufficient to put an ordinarily prudent person claiming by adverse possession upon notice that he had been ousted and constituted such entry as to interrupt any adverse possession of appellants against Lanhom. Coleman v. Waddell, 151 Tex. 337, 249 S.W.2d 912; Lockin v. Johnson, Tex.Civ.App., 202 S.W. 168; Houston Oil Co. of Texas v. Moss, 155 Tex. 157, 284 S.W.2d 131. We realize that the question of whether the claimant's possession was continuous is frequently one of fact for the jury's determination but if we are correct in holding that sale of part of the Lanhom property and filing the deed for record constituted such entry of the property north of the highway as to interrupt the adverse possession of appellants concerning that property the ten year period of limitation was not completed as a matter of law, thus making the summary judgment in favor of Lanhom proper.

Had this appeal concerning the Killough property come to us from a favorable judgment for the record owner by a fact finding body, with all the rules favoring a trial court judgment under such...

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4 cases
  • England v. Ally Ong Hing
    • United States
    • Arizona Supreme Court
    • September 29, 1969
    ...limitations run against him, while he has no ground to believe that his seizure has been interrupted." 20 S.W. at 44. Hinds v. Killough, 332 S.W.2d 101 (Tex.Civ.App.1959), rev'd. on other grounds 161 Tex.178, 338 S.W.2d 707 (1960); and Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2......
  • Overson v. Cowley, 1
    • United States
    • Arizona Court of Appeals
    • October 19, 1982
    ...purpose pursuant to the easement was sufficient to interrupt any exclusive adverse possession by Overson. They rely on Hinds v. Killough, 332 S.W.2d 101 (Tex.Civ.App.1959), as authority for this proposition. However, Overson claims to have likewise given the city permission to build the sam......
  • Collins v. Ivey
    • United States
    • Texas Court of Appeals
    • November 5, 1975
    ...Luhning v. Stewart, 103 S.W.2d 184 (Tex.Civ.App.--El Paso 1937), aff'd 134 Tex. 23, 131 S.W.2d 824 (1939); Hinds v. Killough, 332 S.W.2d 101 (Tex.Civ.App.--Amarillo 1959), rev'd on other grounds, 161 Tex. 178, 338 S.W.2d 707 The evidence will not support the contention that this case comes ......
  • Killough v. Hinds, A-7756
    • United States
    • Texas Supreme Court
    • October 5, 1960

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