Killough v. Hinds, A-7756

• Decision Date: 05 October 1960
• Docket Number: No. A-7756,A-7756
• Citation: 161 Tex. 178,338 S.W.2d 707
• Parties: J. A. KILLOUGH et al., Petitioners, v. Clem HINDS et ux., Respondents.
• Court: Texas Supreme Court

Page 707

338 S.W.2d 707

161 Tex. 178

J. A. KILLOUGH et al., Petitioners, v. Clem HINDS et ux., Respondents.

No. A-7756.

Supreme Court of Texas.

Oct. 5, 1960.

White & White, Borger, Lawing & Hazlett, Borger, for Clem hinds et ux.

Sanders, Scott, Saunders, Brian & Humphrey, Amarillo, for J. A. Killough et al.

Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for Lanhom Development Corp.

CULVER, Justice.

Petitioners, Killough et al., sued respondents, Clem Hinds and wife, in trespass to eject and oust them from possession of that part of the west half of Section 14, Block Y, M. & C. Surveys in Hutchinson County lying south of State Highway 152. Hinds and wife answered claiming that portion of the northwest quarter of the southwest quarter of Section 14 lying south of State Highway 152 and impleaded Lanhom Development Corporation, claiming also that portion of the northwest quarter of the southwest quarter of Section 14 lying north of State Highway 152. The claim asserted by Hinds and wife to both tracts was by way of adverse possession under the 10-year statute of limitations, Vernon's Ann.Civ.St. art. 5510. We are concerned here only with the title to the surface, the minerals having been severed.

It was judicially admitted that Killough and Lanhom held record title to the land subject only to the Hinds claim of adverse possession. The trial court entered summary judgment in favor of both Lanhom and the Killoughs. The Court of Civil Appeals affirmed as to Lanhom, but reversed and remanded the judgment in favor of Killough holding a question of fact to have been raised in the controversy between him and Hinds as to that portion of the 40 acres lying south of Highway 152. Tex.Civ.App., 332 S.W.2d 101. As we view the case the summary judgment was proper.

Both parties filed applications for writs of error. The Hinds application complaining of the affirmance of the summary judgment in favor of Lanhom was refused no reversible error, while that of Killough was granted.

The evidence discloses that Hinds acquired an oil and gas lease on the 40 acres and in 1930 constructed a house upon the property with the separate funds of his wife where they have continued to reside up to the time of the filing of this suit.

In another and prior suit brought by Mrs. Hinds and her husband against other parties involving title to the leasehold estate Mrs. Hinds in 1940 in her sworn petition alleged 'this plaintiff (Mrs. Hinds) would show that she has due and legal and proper authority from the owner of the surface rights, authorizing her to keep said house in its present location upon said land, and that her residence being located aforesaid, is not with the authority of sufferance of the owner of the leasehold estate, nor upon his authority but is upon a right granted by the owner of the surface rights, and is for a valuable consideration moving from this plaintiff to the said owner of the surface rights.'

The occupancy in the first place having been permissive, the question in this case narrows to whether or not any actual or constructive notice of repudiation of their permissive user of the surface of the land in question was ever brought home to the record owners of the surface estate or to their predecessors in title.

(1) It appears that production of oil and gas had been obtained and the lease is still valid and subsisting. Drilling operations were continued from time to time and there are now three producing wells on the premises. About 1949 Hinds failed to complete a well as a producer and thereafter sold the lease. Since that time he has been employed by his vendee as a pumper. The mere fact that his relationship to the property was changed from that of a leaseholder to an employee of the leaseholder is not material or particularly relevant. The law is well settled that even if a tenant remains in possession after the expiration of his term without an express repudiation of his tenancy that is not sufficient to show an adverse possession to his landlord even though he may secretly so intend. Overstreet v. Houston Oil Co., Tex.Civ.App., 64 S.W.2d 354, wr. ref.

Hinds and his wife testified by deposition. He admittedly never made any claim of ownership to the record owners. At one point in his deposition he admits that he went on the property at first in 1930 as the owner of the oil and gas lease and that some time later he claimed to own the surface rights but he was not real sure as to when he first made that claim. At another place it is indicated probably that he began to claim title to the surface shortly after the 1939 suit between him and the one from whom he purchased the oil and gas lease originally. The Court of Civil Appeals holds that an adverse claim could not have been made prior to 1943 by reason of the fact that the grazing of cattle by Killough and others on the land kept the claim from being exclusive.

The land was never fenced except for a small garden tract which was on that part of the 40 acres north of the highway. In his reply to the application for writ of error respondent, Hinds, summarized the evidence relied upon to show repudiation and adverse possession. We quote as follows:

'Respondent entered the land 1930 under an oil and gas lease which he repudiated some time prior to 1940 and about that time claimed the land as their own. That the oil lease was the same limits as their claim. That the part of the 40 in controversy here was used to build their home on, and they also had barn on it down from the house where they kept the livestock, and a chicken coop, a building about 10 by 12 with a fence around it which they had until 1958 a month or so before making the deposition in question. That Respondents also had a hog pen on the property in question from about 1942 or 1943 for a couple of years. That the Hinds also sold junk iron and junk off the said property for several years. That the cattle or cows of the Respondents were pastured up till 1942 or 1943 across the highway on the north part...