Lund v. Doyno, 1934-6518.

• Decision Date: 26 February 1936
• Docket Number: No. 1934-6518.,1934-6518.
• Citation: 91 S.W.2d 315
• Parties: LUND et al. v. DOYNO.
• Court: Texas Supreme Court

91 S.W.2d 315

LUND et al. v. DOYNO.

No. 1934-6518.

Commission of Appeals of Texas, Section A.

February 26, 1936.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Trespass to try title by Frank Doyno against Catarina Lund and others, who filed a cross-action against the plaintiffs. Judgment adverse to Catarina Lund and others was affirmed by Court of Civil Appeals [57 S.W.(2d) 868], and Catarina Lund and others bring error.

Affirmed.

Hill & Greer, of Mission, for plaintiffs in error.

John A. Pope, of Rio Grande City, for defendant in error.

GERMAN, Commissioner.

This was a suit of trespass to try title in which the plaintiffs in error, Catarina Lund and others, as widow and heirs of George Lund, were plaintiffs in cross-action and will be here referred to as plaintiffs. They sought recovery of four small tracts of land from defendant in error, Frank Doyno, who will be referred to as defendant. The case was tried in the district court of Starr county before the court without a jury, and resulted in a judgment in favor of plaintiffs for the land referred to and described as tracts Nos. 1 and 3. They were denied a recovery of tracts Nos. 2 and 4. Tract No. 2 appears to be a small strip of land, about 550 feet in length 105 feet wide at the south end and 134 feet wide at the north end. It is claimed that tract No. 4 is an accretion to tract No. 2. It is a strip 105 feet in width and approximately a mile in length. From the judgment denying plaintiffs a recovery of tracts Nos. 2 and 4, plaintiffs appealed, and the judgment of the district court was affirmed by the Court of Civil Appeals. 57 S.W.(2d) 868.

In the Court of Civil Appeals, plaintiffs presented but one proposition. It was to the effect that, since the evidence showed that they had had long continuous prior possession of said tracts Nos. 2 and 4 and as defendant failed to show title or possession, they were entitled to recover same. In application for writ of error, this assignment is stated in the following language: "The Court of Civil Appeals erred in holding that appellants' proof of long, continued possession was not sufficient proof to entitle them to judgment against appellee, who showed no title or possession of the land in controversy."

The plaintiffs failed to offer in evidence any chain of title from the sovereignty, and it is not urged that they prove title to the land in controversy by limitation. The sole contention is that they are entitled to recover because they showed prior possession of the land and defendant failed to prove any title in himself. It is, of course, settled that a plaintiff showing possession of land prior to an entry by defendant, in the absence of other evidence, is entitled to recovery. The foundation of the rule is stated in the case of Watkins v. Smith, 91 Tex. 589, 45 S.W. 560, 561, as follows: "It is not a rule of property. It is a mere rule of evidence, and is founded upon the principle that, since ownership is a usual concomitant of possession, it is a reasonable prima facie inference that the possessor of property is the owner of such property."

It is further well settled that this presumption of ownership may be rebutted. In the case of Richardson v. Houston Oil Company of Texas (Tex.Civ.App.) 176 S.W. 628, 630, in which writ of error was refused by the Supreme Court, it was said: "The rule which permits a plaintiff in an action of trespass to try title to recover against a mere trespasser upon proof of prior possession, without further evidence of title, is a rule of evidence only, and not a rule of estoppel, and, when the defendant shows affirmatively that the plaintiff has no title, and thus rebuts the presumption arising from his prior possession, it seems to be the law that the possession of the defendant, though he is a mere trespasser without any title, will not be disturbed."

To like effect are the cases of Robertson v. Kirby, 25 Tex.Civ.App. 472, 61 S.W. 967; Lynn v. Burnett, 34 Tex.Civ.App. 335, 79 S.W. 64; Payton v. Loustalott (Tex.Com. App.) 53 S.W.(2d) 1012; and Butler v. Borroum (Tex.Civ.App.) 218 S.W. 1115.

This case having been tried before the court and there being no...