Hooper v. Acuff

• Decision Date: 21 June 1913
• Citation: 159 S.W. 934
• Parties: HOOPER et al. v. ACUFF.
• Court: Texas Court of Appeals

Page 934

159 S.W. 934

HOOPER et al. v. ACUFF.

Court of Civil Appeals of Texas. Amarillo.

June 21, 1913.

Rehearing Denied October 11, 1913.

Appeal from District Court, Lubbock County; W. R. Spencer, Judge.

Trespass to try title by M. S. Acuff against Ed. Hooper and others. Judgment for plaintiff, and defendants appeal. Affirmed in part, and reversed in part.

W. D. Benson, of Lubbock, for appellants. W. H. Bledsoe and H. C. Ferguson, both of Lubbock, for appellee.

HUFF, C. J.

The appellee, M. S. Acuff, brought this suit against appellants, Ed. Hooper, J. F. Collett, and H. T. Randell, in the nature of trespass to try title. The real question at issue in the case should have been the true location of the boundary line between section 44, block 1, claimed by appellee, and section 43, claimed by appellants, and the location of the north boundary line of section 43 and the south boundary line of pre-emption surveys, one in the name of T. A. Acuff, and the other in the name of M. S. Acuff. However, there is no agreement of title in the respective claimants, and hence it devolved upon the appellee to establish the right of possession of the strip of land claimed by him. He also claims the land by three, five, and ten years statute of limitation in his petition. As to section 44, all the evidence offered by appellee is the proof of occupancy filed in the land office July 14, 1898. The application to purchase the obligation, award, payment of interest, or the standing of the sections in the land office was not shown, so that the only right shown to section 44 in appellee is one of possession, which he claims to have had since 1892. Appellee testified he went into possession of section 44 at the time he claims to have filed on the land, and that he fenced the section according to the survey made for him by the then county surveyor. The testimony shows that the title to section 43 is in appellants, and that some time in 1910—the evidence is not clear just when—appellants had their section run out by a surveyor, and established the west line of section 43 some distance west of where appellee claimed it to be. Appellants, after such survey, erected a fence on what they claimed as the west line of section 43. The strip between the two lines is part of the land in controversy. Appellee testified after he erected his fence in 1892, on what he claims to be the east line of section 44, that he in 1898 leased from the then owner of section 43, and that he then took down the fence on the east line of section 44, and moved it on the east line of section 43, and since said time there had been nothing between the two sections to mark the division line. For some time, just how long is not shown, appellee used section 43 under his lease, together with his other lands. It is contended, because he had possession of section 44 for more than 10 years, that he could go to the line as he claimed it to be without having actual, visible possession of the disputed strip. The two sections were, as we gather from the evidence, under one inclosure, without anything, since 1898, to mark the line between the two, as the land claimed by appellee. It should be stated that appellee first filed on section 44, according to his oral testimony, in 1892, and afterwards permitted it to forfeit, and again filed on it some time in 1898, but during the time of its forfeiture he continued to live on section 44.

We do not think that mere possession of school land, without showing some right thereto, will give appellee the right to maintain an action of trespass to try title. Snyder v. Nunn, 66 Tex. 255, 18 S. W. 340; Gracey v. Hendrix, 93 Tex. 26, 51 S. W. 846, 847; Thompson v. Autry, 52 S. W. 581. We do not think the mere fact that appellee was claiming section 44 gave him the right to maintain trespass to try title to a disputed strip of land when he was not in actual possession of the land in question. When the appellants erected their fence they did not trespass upon the land or break the inclosure of appellee, but admittedly both sections 43 and 44 were under one inclosure, with no visible mark designating appellee's claim of possession.

We do not believe the case of Watkins v. Smith, 91 Tex. 591, 45 S. W. 560, applicable to the facts in regard to this section. In cases falling under the rule there announced, there was either a deed to the particular land designating the boundaries, or actual possession of the land in dispute. If appellee had shown a contract to purchase all of section 44 from the state, then his line would go where the court should find the field notes placed it. The fact that he was occupying some portion of section 44 does not give him the right to all of it when he has no deed to it or possession of the disputed land. Even though the court may have found section 44 situated on the ground as claimed by appellee, he could not recover under the title introduced in evidence by him. He must recover on the strength of his own title, and not the weakness of that of his adversary.

The statute of limitation we do not believe will aid appellee as to this section. He did not have three years' possession under color of title. The last filing, according to his oral testimony, was in 1898, at which time he leased section 43 and took down his fence and placed it on the east line of section 43. He was holding section 43 as a tenant for the owner, which would constructively go to the true boundaries. These two surveys were made at the same time, calling for each other, and were part of the same block. The boundary line between the sections depended upon the true location of the block. There is testimony which will sustain the court's judgment placing the lines as claimed by appellee. If the lines were so located, when appellants placed their fence on what they claimed as their west lines to section 43, they were intruders. But as appellee showed no title in himself to section 44 and no actual possession of that strip of land inclosed by the fence, he, too, was an intruder (Morris v. Jacks, 96 S. W. 637), and would be confined to his actual possession and could not recover against appellee.

The possession required under the statute of limitation must be such as to charge the real owner with notice of a hostile holding against him. Bracken v. Jones, 63 Tex. 184; Forsod v. Golson, 77 Tex. 666, 14 S. W. 232. Appellee removed his fence and placed it on the east line of section 43, which he then had leased. There was nothing to mark the line as he claimed it to be. He grazed this disputed strip as he did the land he leased. There is no testimony indicating a hostile holding under a claim of title—nothing which would give to the holder of section 43 notice that appellee was claiming the disputed strip as part of section 44. We, therefore, think the trial court in error in rendering judgment for the appellee for the disputed strip, for the reason...