Plumb v. Stuessy

• Decision Date: 30 July 1980
• Docket Number: No. 13120,13120
• Citation: 603 S.W.2d 351
• Parties: Ray E. PLUMB, Jr., et ux., Appellants, v. E. E. STUESSY, Appellees.
• Court: Texas Court of Appeals

Page 351

603 S.W.2d 351

Ray E. PLUMB, Jr., et ux., Appellants, v. E. E. STUESSY, Appellees.

No. 13120.

Court of Civil Appeals of Texas, Austin.

July 30, 1980.

Rehearing Denied Aug. 26, 1980.

William Pannill, Pannill, Hooper, Bennett & Athey, Houston, for appellants.

Samuel D. McDaniel, Don W. Kothmann, McDaniel & Travis, Austin, for appellee.

SMITH, Justice.

Appellants, Ray E. Plumb, Jr. and Jacquelyn Louise Plumb, brought this action in trespass to try title against appellee, E. E. Stuessy, in the district court of Burnet County. Appellee answered with the statutory pleading of "not guilty." Trial was had before the court without a jury. At the conclusion of appellants' evidence, the trial court granted appellee's motion for judgment vesting title and possession to the disputed land in appellee. It is from this judgment that appellants have perfected this appeal.

The land which was the subject of this suit was described in appellants' petition as:

"(1) Tract A situated in Burnet County, Texas, and being a part of the P. D. Alexander Survey . . . containing 1.69 acres of land.

(2) Tract B situated in Burnet County, Texas, and being a part of the E. Prewitt Survey . . . containing 31/5 acres of land.

(3) Tract C All land extending in an easterly and westerly direction from the property described in (Tract A) and (Tract B) above to the existing fence line on the easterly and westerly side of said tracts of property described above under (Tract A) and (Tract B)."

Tracts A and B were fully described in appellants' petition by metes and bounds. In December, 1975, appellants purchased a 2,887.2-acre tract of land in Burnet County. Included in this conveyance were Tracts A and B which connected the main body of land to U. S. Highway 183. A brief history of Tracts A and B makes more understandable the ensuing lawsuit.

Between 1899 and 1900, Tracts A and B were acquired by H. J. McGuire, as thirty-foot-wide strips of land that run roughly north and south for approximately a mile and one-half. The evidence shows that they were procured by McGuire to provide access to his ranch and that they are used today by appellants, as well as other persons, to provide access to U. S. Highway 183.

The controversy between the parties actually arose over the property described as Tract C. This tract is a "catch-all" tract that exists because a fence constructed to the east does not coincide with the eastern boundary of Tracts A and B, and a fence constructed to the west likewise does not coincide with the western boundary. At some points, the total distance between the fences is as much as ninety feet. The roadway in question extends beyond Tracts A and B and lies partly across Tract C. Parts of Tract C are claimed by appellee.

When appellants purchased their ranch, the roadway was only a rough, narrow caliche-based road with overhanging trees and brush. In 1976, appellants covered the existing roadway with a ten-foot-wide asphalt paving, installed culverts, and began to cut the overhanging trees and brush.

It was at this point that appellee, who owned the land on the west side of the fence, protested the destruction of trees which he asserted were on his property. Subsequently, appellee raised the question of moving the fences along the roadway to conform with the deeds to Tracts A and B. The parties attempted on several occasions to settle their dispute but, when negotiations broke down, this suit in trespass to try title was filed.

Appellants alleged in their petition that they had fee simple title to Tracts A, B and C. They claimed that Tracts A and B were held under a recorded deed and that all three tracts were held by virtue of the ten-year statute of limitations. It was further alleged that appellants' peaceful possession of their property was disturbed by appellee who dispossessed them by commencing the construction of a fence that would enclose a portion of all three tracts.

There is no contention made that appellants' petition did not adequately plead a statutory action in trespass to try title to all three tracts nor that appellee's plea of "not guilty" did not properly join the issues for trial.

Appellants, in their first point of error, complain that the trial court erroneously applied the standard of proof applicable to trespass to try title cases where title is in issue, rather than that applicable where only a boundary is in dispute. We disagree.

Boundary disputes may properly be tried by the statutory action of trespass to try title. Stanolind Oil & Gas Co. v. State, 136 Tex. 5, 133 S.W.2d 767 (1939). Where the pleadings and the evidence show a boundary dispute, it is unnecessary for the plaintiff to prove his superior title in the same manner as he would be required to do in an ordinary action in trespass to try title, i. e., a superior title, a title from the sovereignty of the soil or a title from a common source. Rocha v. Campos, 574 S.W.2d 233 (Tex.Civ.App. Corpus Christi 1978, no writ); Brown v. Eubank, 378 S.W.2d 707 (Tex.Civ.App. Tyler 1964, writ ref'd n. r. e.); Lee v. Grupe, 223 S.W.2d 548 (Tex.Civ.App. Texarkana 1949, no writ).

However, it is equally settled that, in an action in trespass to try title, if the defendant pleads "not guilty," the plaintiff must show title before he can raise the issue of boundaries. Greenlee v. Taylor, 79 Tex. 149, 14 S.W. 1056 (1890); Johnson v. Hill, 301 S.W.2d 239 (Tex.Civ.App. Texarkana 1957, no writ).

In Greenlee v. Taylor, supra, the Court stated the law very simply when it said, "The suit is trespass to try title, with plea of not guilty, and, before boundary questions can be important, plaintiff must show title, otherwise defendants will recover."

The cases that do not require the plaintiff to prove his title involve factual situations where the defendant, in his answer or by stipulation, admitted that the boundary was the only issue. In the present case, appellants chose to put their title to the three tracts of land in issue. Appellee made no admission of title in his answer but pleaded only the statutory "not guilty." Accordingly, the district court was correct in requiring appellants to prove their title before raising the issue of boundaries.

Appellants also allege error on the part of the trial court in granting appellee's motion for judgment, because, they contend, they established not only prior possession but title by adverse possession to the strip at issue.

In evaluating the evidence where trial is to the court and judgment for the defendant is granted at the conclusion of plaintiff's evidence, this Court must apply the same rule applicable in cases where the court instructs a verdict in a jury trial. Eikel v. Bristow Corporation, 529 S.W.2d 795 (Tex.Civ.App. Houston (1st Dist.) 1975, no writ). We must determine whether there is any evidence of probative force sufficient to raise fact issues on any material question. The evidence must be considered most favorably to the party against whom the verdict was rendered and all contrary evidence must be disregarded. Henderson v. Travelers Insurance Co., 544 S.W.2d 649 (Tex.1976); Schriewer v. Liedtke, 561 S.W.2d 584 (Tex.Civ.App. Beaumont 1978, writ dism'd).

With these rules in mind, we have carefully examined the record and have found no evidence sufficient to justify a trial court submitting any fact issue to a jury.

The record reflects that, although certain deeds were introduced which reflected the recorded title under which appellants were claiming Tracts A and B, there was no attempt made to connect appellants' title claim either to the sovereignty of the soil or to a common source.

To establish title by limitations under Tex.Rev.Civ.Stat.Ann. art. 5510 (1958), one who seeks to establish such title must affirmatively show: (1) possession of the land; (2) cultivation, use, or enjoyment thereof; (3) an adverse or hostile claim; and (4) an exclusive domination over the property and an appropriation of it for his own use and benefit for the statutory period. Ramirez v. Wood, 577 S.W.2d 278 (Tex.Civ.App. Corpus Christi 1978, no writ). The proof must...