Leon & H. Blum Land Co. v. Rogers

• Decision Date: 10 October 1895
• Citation: 32 S.W. 713
• Parties: LEON & H. BLUM LAND CO. v. ROGERS.
• Court: Texas Court of Appeals

32 S.W. 713

LEON & H. BLUM LAND CO. v. ROGERS.

Court of Civil Appeals of Texas.

October 10, 1895.

Appeal from district court, Nacogdoches county; James T. Polley, Judge.

Trespass to try title by the Leon & H. Blum Land Company against Joseph N. Rogers. Defendant had judgment, and plaintiff appeals. Affirmed.

Ingraham & Ratcliff, for appellant.

PLEASANTS, J.

The appellant brought action of trespass to try title to 288 acres of land, a part of the A. L. Martin survey of 640 acres. The plaintiff's claim of title is derived through conveyances from one J. M. Heaslet, who claimed to have purchased from John Rogers, who, it is alleged, acquired title to the land under the operation of the 10-years statute of limitation. At the time of trial, both Heaslet and John Rogers were dead. The defendant pleaded not guilty, but neither averred ownership in the land, nor offered proof of an outstanding title. Upon trial of the cause by the judge of the court without a jury, judgment was rendered for the defendant, and the plaintiff appealed to this court, and the appeal is submitted upon the brief of the appellant, there being no appearance here for the appellee. We shall not discuss the assignments of error in detail. The substance of appellant's objections to the judgment is that the court erred in holding that the occupancy of the land by John Rogers was not adverse to the owner, because the possession was taken and held by him under the belief that the land was vacant. That Rogers did enter upon the land under the belief that it was a part of the public domain, the evidence, we think, establishes beyond doubt; and we discover nothing in the evidence tending to show that during his occupancy he ascertained the land was not unappropriated public domain. The contention of the appellant is, if Heaslet and John Rogers held peaceable and exclusive possession of the land, using and enjoying the same, between 1853, the date of entry by Rogers, and the year 1875, the year when Heaslet made deed of conveyance to plaintiff's vendor, for the term of 10 years, exclusive of the period in which the statute of limitations was suspended, Heaslet thereby acquired title to the property, notwithstanding John Roger's possession, which terminated in 1867, was taken and held under the erroneous belief that the land was owned by the state, and had never been severed from the public domain; and in support of this contention appellant cites the case of Converse v. Ringer, 6 Tex. Civ. App. 51, 24 S. W. 705. With due deference to the respectable court which rendered that decision, and for the learned judge who delivered the opinion of the court, we cannot follow that decision. We have heretofore held in several decisions rendered in this court, following the views announced in Mhoon v. Cain, 77...