Louisiana & Texas Lumber Co. v. Alexander

• Decision Date: 21 January 1913
• Citation: 154 S.W. 233
• Parties: LOUISIANA & TEXAS LUMBER CO. v. ALEXANDER et al.
• Court: Texas Court of Appeals

154 S.W. 233

LOUISIANA & TEXAS LUMBER CO. v. ALEXANDER et al.

Court of Civil Appeals of Texas. Galveston.

January 21, 1913.

Appeal from District Court, Houston County; B. H. Gardner, Judge.

Trespass to try title by the Louisiana & Texas Lumber Company against T. J. Alexander and others. From the judgment, plaintiff appeals. Affirmed.

Nunn & Nunn, of Crockett, for appellant. Madden & Ellis and Adams & Young, all of Crockett, for appellees.

PLEASANTS, C. J.

This is an action of trespass to try title brought by appellant against the Southern Pine Lumber Company to recover the title and possession of a tract of 60 8/10 acres of land on the Pedro Miranda one-third league survey in Houston county. The defendant lumber company disclaimed as to an undivided one-half of said land, and, as to the remaining one-half, answered by plea of not guilty and pleas of limitation of three, five, and ten years. It also impleaded its vendor, the appellee T. J. Alexander, on his covenant of warranty. The defendant Alexander answered by plea of not guilty, and also adopted the answer and pleas of the lumber company. The trial of the cause in the court below with a jury resulted in a verdict and judgment in favor of the plaintiff for one-half of the land, and in favor of the defendants for the other half.

The evidence shows that plaintiff holds a regular chain of title to the land in controversy, and is entitled to recover, unless G. S. Rosser, under whom defendants claim, acquired title thereto under the ten years' statute of limitation. Upon the issue of limitation, the following facts are shown by the evidence: In September, 1895, J. E. Bean and wife conveyed the land by deed to G. S. Rosser. In the fall of that year, after his purchase of the land, Rosser opened a field thereon of about 14 acres. He began cultivating this field in 1895, and it was cultivated each and every year thereafter, either by Rosser or by tenants holding under him, until Rosser's death in 1907, except the years 1904 and 1905, during which it was used for a pasture by A. C. Compton, who held under Rosser. On July 17, 1907, M. A. Rosser, the surviving wife of G. S. Rosser, conveyed an undivided one-half of the land to appellee T. J. Alexander, and in August, 1907, Alexander conveyed this one-half interest to the appellee lumber company. G. S. Rosser rendered the land for taxes, and paid the taxes thereon for the years 1896 to 1900, inclusive, and it was rendered in his name, and the taxes thereon paid for him by his son, G. S. A. Rosser, for the years 1901 to 1907, inclusive.

G. S. Rosser never lived on the land, but had his home on an adjoining tract. It is not clear, from the evidence, that any one ever lived on this place; but, as before stated, the field thereon was cultivated by Rosser or a tenant under him each year from 1895 to 1903, inclusive. In 1904 and 1905 A. C. Compton, under an agreement with Rosser, held possession of the land and used it for a pasture for his horses. He testified that Rosser agreed that he could pasture his horses on the land if he would keep the fences up inclosing it, and that, under this agreement, he kept the fences up and used the land during said years as a pasture for his two or three head of horses. The field was cultivated in 1906 by a tenant under Rosser. After his purchase from Bean, in 1895, Rosser at all times claimed the land, and his claim was open and notorious.

Under appropriate assignments of error, appellant contends that the evidence was not sufficient to show that G. S. Rosser acquired title to the land under the ten years' statute of limitation: First, because the use of the land, during the years 1904 and 1905, by A. C. Compton for pasturage of two or three head of horses under his agreement with Rosser to so use the land, and in consideration of such use to keep the fences on the land in repair, was not sufficient use and enjoyment of the land to meet the requirements of the ten years' statute of limitation; second, because, during the occupancy of the land by Mat Coleman, a tenant of Rosser, he executed a contract of lease of the land for the year 1900 from Mr. Durst, the agent of appellant's vendors, and thereby the adverse possession of Rosser through his said tenant was broken; third, because the adverse possession and claim of Rosser was broken by a letter written by his son, G. S. A. Rosser, to appellant's agent in 1899, acknowledging that his father had no title, and offering to purchase the place for him. None of these contentions can be sustained. The statute does not prescribe the character of the use of the land necessary to constitute...