Land v. Turner

• Decision Date: 19 February 1964
• Docket Number: No. A-9799,A-9799
• Parties: E. M. LAND, Petitioner, v. W. R. TURNER, Respondent.
• Court: Texas Supreme Court

Page 181

377 S.W.2d 181

5 A.L.R.3d 364

E. M. LAND, Petitioner, v. W. R. TURNER, Respondent.

No. A-9799.

Supreme Court of Texas.

Feb. 19, 1964.

Adams & Granberry, Crockett, for petitioner.

J. B. Sallas, Crockett, for respondent.

GREENHILL, Justice.

W. R. Turner instituted this suit against E. M. Land in trespass to try title. Trial was to a jury which found that Land had not had 5 or 10 years' adverse possession of the property. No jury issue was given or requested as to prior possession, but judgment was entered for Turner on the basis of his prior possession. That judgment was affirmed by the Waco Court of Civil Appeals. 369 S.W.2d 716. The main questions here are whether Turner had prior possession; whether his possession was sufficient to entitle him to judgment; whether the possession, if had, was not abandoned; and whether, assuming issues of fact existed on these questions, the burden was upon Turner to obtain fact findings thereon.

Turner's petition described 340 acres of land, but Land in open court disclaimed as to all but 44 acres.

All of the land in question had belonged to R. C. Stokes. It was in the J. M. Love Survey, Houston County, some five to seven miles west of Crockett, Texas. In September of 1913, R. C. Stokes executed a deed to Dr. E. B. Stokes. The deed conveyed 140 acres of land and included the 44 acres here in question. Dr. Stokes thereafter died. His widow, in 1948, executed a deed to 93.6 acres to the defendant E. M. Land. The property conveyed to Land was in the same survey but was immediately to the south of the 44 acres here in question. The deed from Mrs. Stokes to Land did not include the 44 acres. Land also purchased from Mrs. Stokes other realty immediately to the west of the 44 acres.

In November of 1913, after the deed from R. C. Stokes to Dr. E. B. Stokes which conveyed the 44 acres to Dr. E. B. Stokes, R. C. Stokes executed a deed to 180 acres in the J. M. Love Survey to the plaintiff Turner. The 44 acres was included within the 180 acres which Stokes conveyed, or purported to convey, to Turner. The 44 acres involved is the southernmost part of the 180-acre conveyance from Stokes to Turner, and the 44 acres was adjacent to land owned by E. M. Land immediately to the south and west. The plaintiff Turner also owned land to the north of the 180-acre tract.

To recover in trespass to try title, the plaintiff must recover upon the strength of his own title. Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226 (1961). He may recover by (1) proving a regular chain of conveyances from the sovereign, (2) by proving a superior title out of a common source, (3) by proving title by limitations, or (4) by proving prior possession, and that the possession had not been abandoned. Prior possession has other ramifications, but we are here dealing with alleged possession by Turner under a deed (though the deed was ineffectual as a conveyance as to the 44 acres), and a trespasser, Land.

It is apparent, at the outset, that under the proof made in this case, the record title to the 44 acres in question is in the heirs of Dr. E. B. Stokes. R. C. Stokes had already conveyed the 44 acres to E. B. Stokes when he executed the conveyance to the plaintiff Turner. And the grant from the widow of E. B. Stokes to the defendant Land did not convey the 44 acres.

The plaintiff Turner did prove a common source of title in R. C. Stokes. And he made a prima facie case when he, as plaintiff, first introduced the deed from the common source to himself of land which included the 44 acres. But this prima facie case was refuted upon the introduction of the prior conveyance of the 44 acres to Dr. E. B. Stokes.

So Turner failed to prove a regular chain of conveyances from the sovereign, he failed to prove a superior title out of a common source, and he neither pleaded nor proved title by limitation. It therefore became his burden to prove prior possession.

Because the courts below have sustained Turner's claim on the basis of prior possession, the evidence is here set out rather fully. For purposes of this opinion, we shall treat Turner's evidence of possession of the 180-acre tract which was deeded to him and which included these south 44 acres as evience of possession of the land in question. The defendant Land had no knowledge of the occupancy, if any, of the land until late in 1948. The plaintiff W. R. Turner did not testify on account of the infirmities of his advanced age. His sons did testify as well as the County Surveyor and others.

It is conceded that the land was rural and uncleared. Turner never claimed to have lived upon it. Nor did he claim to have used it for farming or as a pasture for cattle. His contention is that he used it primarily for the purpose of growing timber. He proved that he had paid the taxes upon the land, including the 44 acres, from 1919 though 1961.

Rufus Turner, plaintiff's son, testified that the family moved to the Wesley Chapel community, in which the land is situated in 1913, the year of the conveyance from r. C. Stokes to the plaintiff W. R. Turner. The Turner family resided on nearby land in the E. Gossett Survey, but not on this tract. The family moved away from the Wesley Chapel community in 1919 to the nearby town of Crockett, Texas. The family planted a small garden on the 44 acres in question. But when the garden was planted, and how long it was maintained, was not shown. Since the family moved away in 1919, it is presumed, in the light of the testimony, that it was not continued after that time. This son, Rufus, left Crockett and lived at Lufkin and Bryan, Texas. He moved to Pasadena, Texas, in August of 1941, and continued to reside there. He could not remember being on the land between 1941 and 1960.

He testified that his father built a sawmill on the 180 acres and that he, the son, worked at it. On cross examination, however, he located the site of the mill on a map or plat at a point near but not upon the 180-acre tract. Later the mill was relocated 'right in this area here' (referring to a place on a plat), 'due south of the point C.' Point C is, on the map used upon the trial, in the west boundary line of the 180-acre tract. At another place he said, 'The sawmill was over here. The sawmill had been removed from the 180-acre tract.' As to the time of the operation of the sawmill, he said it was operated 'about 1922 or 1923'; that it was erected about 1920 and removed in 1922 or 1923. Mr. Reynolds bought the mill about 1932 or '33: 'He didn't move it on our tract, he moved it on the adjoining tract.' The plaintiff Turner sold the timber from the 180-acre tract to Reynolds, and Reynolds cut it in 1932 or 1933. Turner also sold timber to A. E. Hurley, who formerly operated a sawmill 'in this area,' and Hurley cut the timber in 1940.

The younger son, W. A. Turner, went off to college and graduated in 1937. He was also away from the Crockett area from 1937 to 1951 when he returned to Crockett. Between 1951 and 1960, he was on the 180 acres only three or four times. On those occasions, he had taken his father out to look at the land; and they walked over it except for the extreme south portion (where the 44 acres are located). He particularly remembered going out once after a hard freeze to inspect for any timber damage. He testified about some fences. That testimony will be noted below.

Mr. Stanley Minns, a local surveyor, testified that he surveyed the land in 1960 for the plaintiff Turner. He prepared the map or plat which was used during the trial. He described the land as being 'very brushy throughout on all courses.' The southern part (where the 44 acres were) was in particularly bad shape. Asked if the land was suitable for grazing, he said there were parts where cattle could get through; that generally 'they could graze on it all right.' There was a gravel pit on the 44 acres with small trees around it. There were pines, hickory and oaks.

Asked about the condition of the land and any improvements thereon, he said he mainly went around its boundaries while making the survey. He found one or two 'clearings.' Asked if there were any structures, he said he found an old syrup mill in the northwest corner. He did not go into the interior of the 44-acre tract, but said there could not have been many large fields. In making his survey he saw no houses or barns.

There was a fence on the west side of the 180 acres, and a fence along a part of the eastern boundary. There was no fence on the northern boundary. He found evidence of an old fence on the northern boundary, but it was down. Except for some 30 to 60 feet at the southwest corner, there was no fence on the southern boundary, and he found no evidence of there having been one. There was an old fence, running generally east and west across the 180 acres. This was on, approximately, the northern boundary of the south 44 acres. This fence had been replaced by a new fence in the same area but on a different location. The new fence had been built by defendant Land.

W. A. Turner, the younger son, remembered the old fence on the north of the 44 acres, but testified that there was no fence on the south of it where it joined the defendant Land's property.

Raymond Cornelius, son-in-law of the E. B. Stokeses, testified that he helped negotiate the sale from Mrs. Stokes to Land in late 1948, and that he walked with Land to the western edge of the property and showed Land where Land's property was to the south and where the 180 acres were. He did not go into the land because it was pretty rough. He said he had helped the Stokeses manage their land, but he never remembered going into the 180-acre tract. He did not remember any garden on it. He remembered the timber sales. He had heard of the gravel pit, but had never gone to it. He thought an old dim lane led to it.

The plaintiff introduced evidence to support his claim to the 180 acres including the 44 acres in question. In addition to paying the taxes, he...