Orsborn v. Deep Rock Oil Corp.

Decision Date31 March 1954
Docket NumberNo. A-4335,A-4335
Citation267 S.W.2d 781,153 Tex. 281
CourtTexas Supreme Court

Watson & Watson, Stamford, Joe Reeder, Jr., Knox City, Adkins, Folley, Adkins, McConnell & Hankins, Amarillo, for petitioner.

Alexander & Martin, Fort Worth, Brookreson & Brookreson, Seymour, Turpin, Kerr & Smith and Irby L. Dyer, Midland, Andrews & Andrews, Stamford, for respondents.

SMEDLEY, Justice.

Petitioner Tom Orsborn sued C. B. Long and respondents Deep Rock Oil Corporation and others for the title and possession of a tract of land containing 56.85 acres in the J. G. Eustis Survey No. 2 in King County, alleging title by adverse possession under the ten years statute of limitations. C. B. Long, the record owner of the surface and an undivided 2/35 interest in the minerals, filed disclaimer. Respondents, being all of the defendants other than C. B. Long, and being the owners of the record title to the land in controversy except the interests in which Long owned the record title, answered by pleas of not guilty. After trial by the court without a jury, judgment for title and possession was rendered for petitioner against all of the defendants. The Court of Civil Appeals reversed the trial court's judgment and rendered judgment that petitioner take nothing by his suit against respondents. Tex.Civ.App., 259 S.W.2d 625.

The trial court made elaborate findings of fact, some of which seem rather to be conclusions of law, finding in petitioner's favor all of the elements essential to establish title by adverse possession under the ten year statute of limitations, Article 5510, Revised Civil Statutes of 1925, as the same are prescribed by that article and defined in Articles 5514 and 5515.

The Court of Civil Appeals reached the conclusion that according to the undisputed facts in evidence petitioner failed to prove essential elements for the acquisition of title by adverse possession. More particularly, the Court of Civil Appeals decided that the possession of the disputed tract of land by petitioner and his father, who had acquired title to near-by land under recorded deeds, was not possession of such character as of itself gave notice of an adverse, hostile possession that would mature into title at the expiration of the statutory period, in this, that the disputed tract was casually enclosed together with the land owned by petitioner and his father and a tract of land owned by the State, all enclosed by a fence not constructed by petitioner or by his father, and that their cattle only incidentally and occasionally grazed off of the land which they owned onto the disputed tract of land.

After a careful examination of the entire statement of facts we have reached the same ultimate conclusion as that reached by the Court of Civil Appeals. Looking to all of the evidence and accepting as true all of the evidence offered by petitioner, including petitioner's testimony, we find that there is wanting evidence of probative value tending to prove that petitioner and his father or either of them had adverse possession of the disputed tract as defined in Article 5515, that is, 'actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.' The case presents a question or questions of law. There are no conflicts in the evidence as to any material facts. The statement of facts indeed consists almost wholly of evidence offered by petitioner. Respondents offered no evidence except documentary evidence, testimony as to the topography and quality of the land and portions of petitioner's deposition. In order to make plain the basis of the conclusion expressed, it is necessary to make a statement of the substance of the material facts.

In October, 1919, J. T. Orsborn, petitioner's father, acquired by deed from E. C. Couch and W. A. Smith the David Davis Survey, or two tracts of land of that survey, a total of 160 acres, and also the E. M. Ellis Survey, containing 150.5 acres, and lying immediately southwest of the Davis Survey. In December, 1919, J. T. Orsborn acquired by deed from J. A. Wade four tracts of land, a total of 370 acres, of Section 80, H. & T. C. Ry. Co., which adjoins the Davis Survey on the northeast. In November, 1921, J. T. Orsborn acquired by deed from M. T. Holland a tract of land containing 120 acres out of Section, 80, H. & T. C. Ry. Co. Each of the deeds described the tracts conveyed by metes and bounds, with references to survey lines and corners, the Brazos River and artificial objects; but the deeds contained no reference to a fence or fences. Two of the deeds were filed for record on January 30, 1920, and the third deed on December 7, 1921.

Petitioner testified that when his father bought the land in the Ellis and Davis Surveys and in Section 80 there was an existing fence forming an enclosure which is now shown to embrace an area of about 747.58 acres, and that the enclosing fence or fences were then about where they are now; that sometimes parts of the fence were washed out, but that they would be replaced 'as soon as we could get to them.' The fence forming the enclosure was not built by petitioner's father nor by petitioner, but petitioner testified that it has been maintained in fair repair.

The area of 747.58 acres enclosed by the fence extends northeast and southwest along or near the Brazos River. Its length northeast and southwest is about 4560 varas, or 2.4 miles. In its northeast part the enclosed area is about 1350 varas wide and in its southwest part at about the middle of the disputed tract the width of the enclosed area is about 585 varas. The land that petitioner's father acquired by deeds is the northeast part, 630.73 acres, of the enclosed 747.58 acres. Immediately southwest of that land is a 60-acre tract owned by the State, and immediately southwest of the State tract and at the southwest end of the enclosed area is the 56.85 acre tract in controversy.

The disputed 56.85 acre tract has not been fenced separately from the other land within the enclosure of 747.58 acres. There is no fence along the northeast line of the disputed tract and the fence on its northwest line is whooly, or almost wholly, on Survey 89, H. & T. C. Ry. Co., to its northwest. The record does not show when, by whom, or for what purpose the fences forming the 747.58 acre enclosure were built.

A witness for petitioner testified that he knew the land within the enclosure as early as 1912 or 1913, and that at that time it was fenced in several tracts and owned by different persons.

There are some differences in the testimony as to the quality of the land in the disputed tract, but there seems to be agreement that the north part of the tract is hilly, with but little grass on it, that much of the land within the tract and near the river is grown up with salt cedars, and that toward the east and northeast part of the tract there is grass of average quality. It is further shown by the record that the best land for grazing is in the north and northeast parts of the 747.58 acre enclosure. Petitioner testified that there is and was little grass on the west part of the tract in controversy.

Soon after petitioner's father acquired the land in the Davis and Ellis Surveys and in Section 80, H. & T. C. Ry. Co., he began to use the land within the enclosure for grazing cattle, and so used it continuously until he died in 1933. Thereafter petitioner used the land continuously in the same way until about the time this suit was filed. Some small tracts in Section 80 have been farmed but there has never been any cultivation of the disputed tract of land, and no improvements have ever been placed on it except 'fix the fence.' There are and have been windmills and watering places on the part of Section 80, H. & T. C. Ry. Co., and on the Davis Survey that petitioner's father acquired by deeds, but there have been no windmills or watering places on the disputed tract. The nearest watering place is about a mile from the disputed tract.

Asked about the number of cattle that he and his father grazed on the 747.58 acres enclosed, petitioner testified that they usually tried to keep 'around thirty cattle or something like that'. He testified that cattle were scattered all over the enclosure, and when questioned particularly whether he could say definitely 'at any given year there were cows on that disputed tract at any certain time', he answered: 'I couldn't give any certain months, but I could say that I have seen them there every year; almost every time you went over there you could see them.'

Petitioner testified that his father regularly paid his taxes on his land, but that neither he nor his father ever rendered any part of the J. G. Eustis Survey No. 2 (the survey in which the disputed tract lies) for taxes and that they paid no taxes on it. Respondent offered in evidence the rendition made by petitioner for taxes fro the year 1952, in which are included the Davis Survey and the Ellis Survey but no part of the J. G. Eustis Survey No. 2, and in which is the affidavit of petitioner that the rendition is a full and complete list of all taxable property owned or held by him in the county. Petitioner's explanation of the failure on his part and on the part of his father to render for taxation or to pay taxes on the disputed tract is that they did not know 'this Eustis Survey was in there until I hired this surveyor * * * in the spring of 1951.' Respondents introduced in evidence tax receipts showing payment of the taxes on the J. G. Eustis Survey No. 2 by the record owners for several years, including the years from 1931 to 1937 inclusive.

Petitioner testified that when his father bought the land he got a deed to it. And he testified that his father bought 'that land over there that was under fence, he was claiming that.' Interrogated closely about his statement that his f...

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    ...until finally this lawsuit, that this particular land was not covered by your deed? A No. * * *' As stated in Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W .2d 781: '* * * Looking to all of the evidence and accepting as true all of the evidence offered by petitioner, including petit......
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