Link v. Bland

• Decision Date: 22 June 1906
• Citation: 95 S.W. 1110
• Parties: LINK v. BLAND.
• Court: Texas Court of Appeals

Page 1110

95 S.W. 1110

LINK v. BLAND.

Court of Civil Appeals of Texas.

June 22, 1906.

Appeal from District Court, Orange County; W. P. Nicks, Judge.

Action by J. W. Link against Richard Bland. From a judgment for defendant, plaintiff appeals. Affirmed.

Holland & Holland, for appellant. Hort & Sholars, for appellee.

REESE, J.

This is a suit by J. W. Link against Richard Bland in trespass to try title for 640 acres of land, described as survey No. 19, Texas & New Orleans Railway Company, in Orange county. Defendant, among other defenses, pleaded the statute of limitation of 10 years as to 160 acres of the land sued for, including his residence and improvements, which 160 acres are specifically described in his answer, and disclaimed as to the remainder of the survey. There was a verdict for defendant as to the 160 acres, and judgment for him therefor, and for plaintiff for the remainder upon defendant's disclaimer. From the judgment, plaintiff appeals.

By his first assignment of error appellant assails the verdict and judgment on the ground that the undisputed evidence showed that defendant's possession was not commenced or continued under a claim by right, as required by the statute. From the evidence in the record as to appellee's possession we deduce the following facts: The suit was begun September 8, 1904. In February, 1894, appellee, who was a married man, moved upon the section of land in controversy with his wife. He built a dwelling house with other usual improvements of a home, on the southeast quarter of the section, before moving on it, cleared land, put about 4 acres in cultivation the first year, which was afterwards increased to 10 acres in cultivation and 15 acres in pasture. He has continuously lived with his family on the land since first moving there in February, 1894, and has always claimed the land adversely to the owner and all other persons. When he first began to clear the land for his home, he thought the land was on section 22, a school section, but found out before his house was built and before he took up his residence that it was on section 19, and that the section belonged to the Texas & New Orleans Railway Company. Appellee's intention was to hold the land in hostility to the owner and every one else, but he testified that he had no title to the land, that he had never bought it, nor inherited it, nor had anybody ever given it to him. Knowing he had no title he took possession claiming, and intending to claim, the land by virtue of his possession and continued to occupy it as his home under such claim based upon his possession alone, from and after February, 1894. His possession was, during all this time, open and notorious, and was exclusive and hostile to the owner and all others. Appellee testified that he knew that the land was not his and that he did not claim to own it when he first went on it; that he never asserted a better title than the T. & N. O. Ry. Company, but his testimony shows clearly that what he meant by these expressions was that he had no title to the land, and never claimed to have any except what his naked possession gave him, and never asserted any hostile claim except such as could be predicated upon his possession. The undisputed evidence shows clearly that appellee's possession was an actual and visible appropriation of the land, adverse to all the world and that he at all times claimed whatever right such possession gave him, without at any time claiming to be the owner of the land in the sense of having title or right except such as inhered in, and was attached to, such possession.

Appellant's contention as to the law upon this state of facts can best be stated by the following quotations from his brief: "The language of the statute applying to the contention of appellant in this case is plain: `Adverse possession is an actual and visible appropriation of the land, commenced and continued under a claim of right, inconsistent with, and hostile to the claim of another.' Under this statute a man, to start the statute of limitations running, must be an honest claimant of the land he is in possession of. The statute was made to protect persons honestly claiming their property and in the possession thereof. The statute was not made, nor intended to...