Richards v. Smith
| Citation | 4 S.W. 571 |
| Parties | RICHARDS v. SMITH and another. |
| Decision Date | 12 April 1887 |
| Court | Supreme Court of Texas |
Walton, Hill & Walton, for appellant. Carleton & Morris, for appellees.
This action was brought by Joel P. Smith, as we learn from the conclusions of fact found by the judge who tried the case, on February 11, 1885, against R. H. Kirby and Samuel Richards, to partition one-third of a league of land, in which the plaintiff asserted the title to three-fourths, and alleged title to the residue to be in the defendant Kirby. It was alleged that Richards claimed some interest in the land which was alleged to be unknown to the plaintiff. The land was alleged to be and was in Llano county, and the defendant Richards was alleged to be a resident of Blanco county, and the defendant Kirby a resident of Travis county. The prayer was for adjudication of the rights of the respective parties and for partition. The defendant Richards interposed a plea to the jurisdiction of the district court for Travis county, which, however, never was acted upon. On June 4, 1885, the plaintiff dismissed as to the defendant Kirby, who at the same time became a party plaintiff. On the same day the plaintiff and Kirby filed an amended petition having all the essentials of a petition in an action of trespass to try title. The defendant Richards pleaded not guilty, and set up title in himself to 735 acres of the tract, including its west end. He also pleaded limitation barred on five years' possession, under a tax deed dated June 6, 1879, which it is not claimed was sufficient to pass title, but was a deed sufficient to furnish the basis for limitation pleaded. This deed was properly recorded on June 22, 1879; and taxes on the land claimed under it for the year 1879, and the five succeeding years, were paid by appellant. The defendant Richards, in the fall of 1879, began preparations for inclosing a pasture which was to include about 25 acres of the land covered by the tax deed, and other land not on the same survey. With a view to this, in that year some rails were put on the land in controversy, but no fence was erected during that year, nor does it appear that any act was done indicating clearly an intention to inclose any specific part of the land in controversy so as to exercise an exclusive control of it. The evidence for the defendant tends to show that he inclosed about 25 acres of the land in controversy as early as May, 1880, and that, from the time of such inclosure, he had exclusive possession. The evidence for the plaintiff tends to show that no part of the land in controversy was inclosed until the latter part of the summer of 1880; but one witness stated that the inclosure was completed in June or July of that year. The court found that limitation ran until the filing of the amended petition on June 4, 1880, but that the evidence was not sufficient to show an actual possession for five years prior to that date.
We see no reason to doubt the sufficiency of the original petition to stop the running of the statutes of limitation from the date it was filed. It asserted title in the plaintiff and the defendant Kirby to the entire tract, and sought an adjudication of the right. It was not shown that, five years before the petition was filed, the defendant had any exclusive possession whatever. The placing of rails on land, no further act being shown, is not sufficient evidence of such possession. It may indicate an intention at some future time to take an exclusive possession, and it may afford some evidence of an intention to claim adversely; but an intention to assert an adverse claim, or its actual assertion, gives no right, however long such intention to assert or actual assertion of adverse claim may continue, unless it be accompanied with exclusive possession. We do not think an actual inclosure, by fence or otherwise, necessary in all cases to give an exclusive possession.
The character and situation of the land, and the uses to which it is adapted, and may be and is actually put, must be considered in determining whether an occupation is exclusive or not. To give title by limitation there must be an adverse claim and exclusive...
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