Howland v. Hough, 5030

• Decision Date: 19 May 1977
• Docket Number: No. 5030,5030
• Citation: 553 S.W.2d 162
• Parties: Oliver A. HOWLAND, Appellant, v. J. T. HOUGH, Jr. et al., Appellees.
• Court: Texas Court of Appeals

Page 162

553 S.W.2d 162

Oliver A. HOWLAND, Appellant, v.J. T. HOUGH, Jr. et al., Appellees.

No. 5030.

Court of Civil Appeals of Texas, Eastland.

May 19, 1977.

Rehearing Denied June 23, 1977.

Vernon M. Pfluger, Ferguson & Ferguson, Austin, for appellant.

Forrest N. Troutman, Troutman & Hill, Austin, for appellees.

WALTER, Justice.

Oliver A. Howland filed suit against J. T. Hough, Jr. and wife, Lucille, in Trespass to Try Title covering 8.36 acres in Travis County.He also pleaded the 3, 5, 10 and 25 year Statutes of Limitations and prior possession.Hough and wife pleaded "Not Guilty" and the 3, 5, 10 and 25 year Statutes of Limitations.Defendants also pleaded they had made valuable improvements on the property and that these improvements had a value in excess of $10,000.

The jury found (1) that plaintiff, Howland, did not have exclusive, peaceable, continuous and adverse possession of the land in controversy for a period of 10 years prior to the time of filing this lawsuit on October 15, 1974; (3) that plaintiff, Howland, was in possession of the land in controversy prior to February 25, 1974; (4) that Hough and wife did not have exclusive, peaceable, continuous and adverse possession of the land in controversy for a period of 10 years prior to the filing of this lawsuit on October 15, 1974; (5) that J. T. Hough and wife were possessors in good faith of the land in controversy for at least one year next before the commencement of this lawsuit on October 15, 1974; (6) that defendants, Hough and wife, made permanent and valuable improvements on said land during the time they had possession; (7) at the time of trial there was a house, a mobile home, a storage building and a utility building on said land; (8) the value of such improvements was $17,800; (9) the difference between the value of the land in controversy with the improvements and the value without the improvements is $17,800; (10) that Hough and wife made permanent and valuable improvements on said land without the intent to defraud; (11) the improvements enumerated above are presently on the land in controversy; and (12) the improvements can be removed without substantial and permanent damage to the land.

The court entered a judgment that plaintiff take nothing and he has appealed.

Howland purchased 100 acres out of the J. O. Irwin(Erwin) Survey in Travis County, Texas, from C. F. Williams and wife, Vera R. Williams, on April 30, 1946 which was recorded in the Deed Records of Travis County on May 1, 1946.The patent shows this as the James O. Irvine Survey.Howland contends the disputed tract of 8.36 acres formed the northeasterly portion of the 100 acre tract.

Howland introduced his deed from Williams as his exhibit number 9.He also introduced exhibit number 13 which is a map showing the disputed tract and some of the surrounding lands.The land in dispute had been marked with an "X" on plaintiff's exhibit number 13.

The statement of facts contains the following:

"THE COURT: Let me ask the witness to do something.For the benefit of the Court and Jury, take this blue wax pencil I don't have a ruler and draw onto that Exhibit No. what

THE WITNESS: 13.

THE COURT: 13 where the land would lie that has just been described to you by metes and bounds from in your reading from Plaintiff's ExhibitNo. 9.Will you do that for us so we'll know what we're talking about?

THE WITNESS: (Witness doing same).

Q Mr. Steager, would you also indicate with that blue marking pencil where the disputed tract is on this map?

A (Witness doing same).

THE COURT: Containing eight point what?

MR. TROUTMAN: To the point where we estimated where this line should be, it contains 8.36 acres okay approximately.

Q All right.Now, Mr. Steager, when you examined Plaintiff's ExhibitNo. 13, can you testify to this Jury that the little spot of land that you have marked with an 'X' is contained within the other blue lines that you have marked on that Plaintiff's ExhibitNo. 13?

A No, sir, it's not contained within the blue lines.

THE COURT: In other words, the acreage which you have designated with an 'X' containing approximately 8.36 acres is not contained within the field notes of Plaintiff's ExhibitNo. 9?Am I correct in the stated THE WITNESS: Yes, sir.

THE COURT: proposition?

THE WITNESS: It does not fall within the field notes as written."

Charles Steger, a registered professional engineer, testified substantially as follows:

Plaintiff's exhibit number eleven is a plat I prepared from an actual survey on the ground of the Howland land as we interpreted it to be fenced or occupied in 1973 when we made the survey.

Steger was asked:

"Q Now, if you were to invert the call we spoke of, would that area shown on Plaintiff's ExhibitNo. 11 be contained within the Howland deed?

And he answered:

"A The way I inverted it, this portion here would be."

Steger continued as follows:

By inverting the call a portion of the disputed tract would be in the Howland tract.

The Court asked the question:

"THE COURT: Well, how much of the 8.36 acres under the inversion would be included within the Howland tract?

Steger answered:

"THE WITNESS: The lower I'd say lower 60 percent."

Steger continued to testify as follows:

To a certain extent Mr. Howland assisted me in locating his corners and telling me what land was his, but was not with us while we were surveying his land.

In Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226(1961), the court said:

"It has long been the rule in this State that in a trespass to try title suit, the plaintiff must recover upon the strength of his own title.Kauffman v. Shellworth, 64 Tex. 179;Hovel v. Kaufman, Tex.Com.App., 1926, 280 S.W. 185;Davis v. Gale, 1960, 160 Tex. 309, 330 S.W.2d 610.If the plaintiff under the circumstances fails to establish his title, the effect of a judgment of take nothing against him is to vest title in the defendant.The rule is a harsh one, but it also has been well established as a rule of land law in this State.French v. Olive, 1887, 67 Tex. 400, 3 S.W. 568;Permian Oil Co. v. Smith, 1934, 129 Tex. 413, 73 S.W.2d 490, 111 A.L.R. 1152."

Prior to the instant suit, Judy Johnson filed a lawsuit against J. T. Hough and Oliver A. Howland in Travis County in which Howland filed an answer.In his prayer, he pleaded:

"WHEREFORE, premises considered, Defendant prays judgment of the Court, declaring that the land shown as Exhibit "D" of Plaintiff's Original Petition be all of the land owned by DefendantsJ. T. Hough and wife, Lucille Hough in the Irvine or Howlett surveys in Travis County, Texas; further that DefendantOliver A. Howland be declared to be the owner of that certain tract of land described in the deed from C. F. Williams and wife, Vera R. Williams to Oliver A. Howland, dated April 30, 1946, of record in Vol. 793, Page 101, of the Deed Records of Travis County, Texas, and that title to such land be quieted in him and that the cloud existing thereon by reason of the claim of J. T. Hough and wife, Lucille Hough, be in all things removed; that Defendant have all other relief, specific and general, to which he may be entitled, together with his costs in this behalf expended.

This case was dismissed for want of prosecution on June 15, 1972.

At the time of trial, the Houghs lived on the disputed tract which is described as 11702 Four Iron Drive and received water from...