Julien v. Baker, C14-87-630-CV

• Decision Date: 15 September 1988
• Docket Number: No. C14-87-630-CV,C14-87-630-CV
• Citation: 758 S.W.2d 873
• Parties: Archie JULIEN, Appellant, v. Agnes S. BAKER, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 873

758 S.W.2d 873

Archie JULIEN, Appellant, v. Agnes S. BAKER, Appellee.

No. C14-87-630-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Sept. 15, 1988.

M. Charles Gandy, Houston, for appellant.

Michael W. Middleton, D. Michael Holt, Bryan, for appellee.

Before JUNELL, SEARS and DRAUGHN, JJ.

OPINION

SEARS, Justice.

This is an appeal from a judgment in favor Appellee awarding her title to a .022 acre triangular shaped tract of land by virtue of adverse possession. We affirm.

On June 30, 1958, Appellee and her spouse purchased a home in the city of College Station, Texas. The legal description of the property purchased is Lot Thirteen, Block Two, College Hills Estates, First Installment. At the time they purchased the property Appellee had the land surveyed in order to locate the boundaries of the property. This survey was performed by Mr. J.S. Harrison, a registered public surveyor, and will be referred to as the "Harrison Survey." Mr. Harrison installed iron marker pins at the corners of the lot and Appellee used these markers as reference points for the boundaries of the lot when she landscaped her property. She planted a hedge and several trees on the boundary line between her lot and adjoining vacant Lot No. 14. Appellant and her family have continuously maintained, cultivated and used the land within these survey markers since 1958.

In December, 1984, Appellant began negotiations with a third party concerning the purchase of Lot 14, and a portion of Lot 15. Appellant purchased this property in August 1985. Prior to his purchase of this property, Appellant hired Mr. Donald D. Garrett, a registered public surveyor, to perform a survey. This survey will be referred to as the "Garrett Survey." This survey revealed a discrepancy in the common boundary line between Lot 14 and Appellee's property, Lot 13. Therefore, Appellant knew of the adverse claim prior to his purchase of Lot 14. Appellant brought the discrepancy to Appellee's attention and the ensuing dispute resulted in the present lawsuit when Appellant threatened to erect a privacy fence enclosing the disputed strip of land.

The parties stipulated at trial that Appellee is the owner of Lot 13 and Appellant is the owner of Lot 14 "subject to whatever rights of limitation or adverse possession that Mrs. Baker is able to establish in that the common boundary line between those two lots is the boundary line as determined by Bill Kling and Don Garrett, two separate surveys that have heretofore been made." The case was submitted to the court for determination and the court rendered judgment for Appellee and awarded her title in the disputed land. Appellant failed to make a timely request for findings of fact and conclusions of law and none were issued by the trial court.

Appellant asserts five points of error on appeal. In his first two points of error, Appellant alternatively contends there was no evidence or insufficient evidence that Appellee possessed the intent necessary to ripen limitation title to the disputed strip. In his third point of error, Appellant asserts that Appellee judicially admitted that she did not possess the intent necessary to ripen a limitation title.

In a non-jury trial, where no findings of fact or conclusions of law are filed or requested, it will be implied that the trial court made all the necessary findings to support its judgment. Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex.1980). These implied findings may be challenged on appeal by "insufficient evidence" or "no evidence" points the same as a jury's findings and a trial court's findings of fact. Burnett v. Motyka, 610 S.W.2d at 736. In resolving no evidence points of error, we consider only that evidence favorable to the judgment and disregard all that which is opposed to it. International Bank, N.A. v. Morales, 736 S.W.2d 622, 624 (Tex.1987). However, in reviewing insufficient evidence points, we must consider and weigh all the evidence, including any evidence contrary to the trial court's judgment. Burnett v. Motyka, 610 S.W.2d at 736; In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1952).

TEX.CIV.PRAC. & REM.CODE ANN. § 16.026 (Vernon 1986) states in pertinent part:

(a) A person must bring suit not later than 10 years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who cultivates, uses or enjoys the property.

Adverse possession is statutorily defined as "an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and hostile to the claim of another person. TEX.CIV.PRAC. & REM.CODE ANN. § 16.021(1) (Vernon 1986). No matter how exclusive and hostile to the true owner the possession of the land may be, the possessor must intend to appropriate it." Calfee v. Duke, 544 S.W.2d 640, 642 (Tex.1976).

Appellant asserts that Appellee's testimony that she believed the disputed tract was in the deed to Lot 13 and never intended to take anyone else's land constitutes a judicial admission that she did not possess the requisite intent. We disagree.

Often the statements of the adverse claimant are, or appear to be, inconsistent. In such instances it is generally held that a fact issue exists on the issue of his intent to claim the land. Calfee v. Duke, 544 S.W.2d at 642; Pearson v. Doherty, 143 Tex. 64, 183 S.W.2d 453, 456 (1944); Stewart v. Luhning, 134 Tex. 23, 131 S.W.2d 824 (1939); Payne v. Priddy, 371 S.W.2d 783, 784 (Tex.Civ.App.--Fort Worth 1963, no writ). The trial court has found all fact issues in favor of Appellee; therefore, it is irrelevant whether her testimony was inconsistent. Calfee v. Duke, 544 S.W.2d at 642. Appellee testified she believed the boundary line to her lot was delineated by the surveyor's iron pin markers, and that when she and her husband planted the trees and privet hedge, they located the iron pin markers and ran a string between them, "So we wouldn't plant our shrubbery and trees on the other property." She stated that the purpose of planting the hedge was, "[T]o let our children know that they were not to play on other people's properties, and that was a line--we couldn't afford a fence so we put up the shrubbery." She also stated that the water meter installed by the utility company to monitor the water usage for her property was located on the disputed strip of land. On cross-examination, she testified as follows:

Q: You strung that line where you did because you had no intent to claim any property other than what was described in your Deed; is that not correct?

A: That was surveyed that way and that's what we were told that's where the property line was. It's our original survey.

* * *

Q: Did you ever state to anyone that that property that you were mowing and where your hedges were located, that you were claiming that as your own no matter what?

A: Well, they were mine.

She further testified on rebuttal that it had been her intent all along to use that property and appropriate it for her own use.

It is clear from the record that Appellee did not consider that she was claiming the property adversely to anyone for the simple reason that for 28 years she thought she was the rightful owner of the land.

Further, Appellee manifested this claim of right by open and visible possession and use of the property. The evidence shows that immediately after moving into the house on Lot 13, Appellee and her family began landscaping the yard and planted a privet hedge and trees on the boundary line between Lot 13 and Lot 14 as delineated in the Harrison Survey. They also planted St. Augustine grass up to the boundary line and planted additional shrubbery and flowers on the disputed strip. Since 1958, Appellee has continuously and uninterruptedly cultivated, maintained and used the disputed property to...