Rocha v. Campos

• Citation: 574 S.W.2d 233
• Decision Date: 09 November 1978
• Docket Number: No. 1345,1345
• Parties: Tereso ROCHA, Appellant, v. Policarpio CAMPOS, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 233

574 S.W.2d 233

Tereso ROCHA, Appellant, v. Policarpio CAMPOS, Appellee.

No. 1345.

Court of Civil Appeals of Texas, Corpus Christi.

Nov. 9, 1978.

David Hashmall, Hereford, for appellant.

A. C. Garcia, Pharr, for appellee.

OPINION

NYE, Chief Justice.

This case involves a dispute over a strip of land between adjacent landowners. It was pled and tried in the court below as an action in the nature of a trespass to try title suit. Defendant answered with a not guilty plea and specifically pled the 10-year statute of limitations. Trial was to the court without the intervention of a jury. Judgment was entered in favor of the plaintiff granting title to and possession of the strip of land in question. The defendant appeals from this adverse judgment.

Plaintiff Policarpio Campos sued Tereso Rocha seeking to recover a strip of land located on the west side of his property which was in the possession of the defendant. Plaintiff's original petition alleged, in essence, that: 1) plaintiff is the owner in fee simple of Lots 25, 26, 27 and 28 of Block 6, Colonial Plaza Subdivision in Donna, Hidalgo County, Texas; 2) that defendant is the sole owner of the tract of land (Lots 23 and 24) west of and adjacent to plaintiff's land; 3) that a dispute concerning the true location of the boundary line existed between plaintiff and defendant; 4) that plaintiff believed the correct boundary line to be as specified by a survey attached to the petition; and 5) that the land in dispute is out of plaintiff's possession and had been in the possession of the defendant since February 3, 1944. In accordance with these allegations, plaintiff prayed for the delivery of possession of the strip of land and for determination by the trial court of the true location of the boundary line.

The evidence shows that Lot 24 (defendant's lot) and Lot 25 (claimed by plaintiff) share a common previously recognized boundary marked by a hurricane fence. The evidence showed that the plaintiff's father erected the fence sometime prior to 1943. The disputed property concerns a diagonal strip of land west of the fence ranging from six feet in width on the south to 7.4 feet in width between on the north. The defendant is in possession of this particular strip of land. Plaintiff testified that his father gave him a deed to Lots 25 through 28 in 1969. In 1973, plaintiff asked one Tom Stovall to survey the property. The survey indicated that the fence did not form the true boundary line between plaintiff and defendant's lots.

Findings of fact and conclusions of law were neither requested nor filed. The defendant did bring forward a statement of facts. Therefore, it must be presumed, if possible, that the trial judge found facts necessary to sustain the judgment, provided such facts were raised by the pleadings and have support in the evidence. Bishop v. Bishop, 359 S.W.2d 869 (Tex.Sup.1962); Texas Const. Associates, Inc. v. Balli, 558 S.W.2d 513 (Tex.Civ.App. Corpus Christi 1977, no writ); Oxford Development Co. v. Eppes, 422 S.W.2d 583 (Tex.Civ.App. Corpus Christi 1967, no writ). In considering the sufficiency of the evidence in support of the presumed findings, we must construe the evidence in the light most favorable to the judgment and disregard all evidence and inferences to the contrary. Texas Const. Associates, Inc. v. Balli, 558 S.W.2d 513 (Tex.Civ.App. Corpus Christi 1977, no writ).

The plaintiff did not file a brief nor did he appear for oral argument. Rule 419, Texas Rules of Civil Procedure, vests this Court with considerable discretion in accepting unchallenged statements made by the appellant as to the facts and the record. See Pyronauts, Inc. v. Associated Fire Extinguisher Co., 549 S.W.2d 460 (Tex.Civ.App. Fort Worth 1977, no writ); In Re Salinas, 530 S.W.2d 633 (Tex.Civ.App. Corpus Christi 1975, no writ); Greene v. Anders, 473 S.W.2d 622 (Tex.Civ.App. Waco 1971, writ ref'd n. r. e.); Whatley v. Whatley, 493 S.W.2d 299 (Tex.Civ.App. Dallas 1973, no writ). Here, the defendant brings forward points of error concerning the legal and factual sufficiency of the evidence as well as questions of law.

In point of error five, the defendant contends that the trial court erred in awarding judgment for plaintiff because the record is devoid of any evidence that plaintiff has title to the disputed property. Our threshold problem under this point of error is to determine the scope of plaintiff's burden of proof.

Although plaintiff's pleadings were general, the allegations of the petition follow the form and the manner required by the Texas Rules of Civil Procedure in stating a cause of action for trespass to try title. See Rule 783, Texas Rules of Civil Procedure. In general, the action of trespass to try title suit is in its nature a suit to recover the possession of land unlawfully withheld from the owner and to which he has the right of immediate possession. Hays v. Texas & Pac. Ry. Co., 62 Tex. 397 (1884); 2 Tex.Jur.2d, Trespass to Try Title, §§ 2, 6 (1964). In trespass to try title cases, the plaintiff must recover upon the strength of his own title and not the weakness of the defendant's title. Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226 (1961); Kauffman v. Shellworth, 64 Tex. 179 (1885).

The action of trespass to try title embraces all character of litigation that affects the title to real estate. Disputes as to boundaries may also be determined in trespass to try title suits. See: Stanolind Oil & Gas Co. v. State, 136 Tex. 5, 133 S.W.2d 767, 770 (1939) and authorities cited therein. There is a distinction between trespass to try title cases and suits in the nature of trespass to try title in which the only issue in dispute is that of a proper boundary. In the latter case, it is unnecessary for the plaintiff to prove his superior title in the same manner as he would be required to do in ordinary actions of trespass to try title, (i. e., a superior title or title from the sovereignty of the soil or from a common source). Brown v. Eubank, 378 S.W.2d 707, 711 (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); Harris v. Kiber, 178 S.W. 673 (Tex.Civ.App. Galveston 1915, dism'd w. o. j.); Wardlow v. Harmon, 45 S.W. 828 (Tex.Civ.App.1898, no writ).

The only evidence plaintiff offered to prove that he was the fee owner of the disputed land was his own testimony that the land had been given to him by his father. The plaintiff identified a deed which he testified his father had delivered to him. However, the deed was not entered or read into evidence. An interest in real property, as a general rule, can only be established by a valid written instrument and not by parol evidence. City of Mission v. Popplewell, 156 Tex. 269, 294 S.W.2d 712, 717 (1956); F L R Corp. v. Blodgett, 541 S.W.2d 209, 213 (Tex.Civ.App. El Paso 1976, writ ref'd n. r. e.); Southwest Bank & Trust Co. v. Executive Sportsman Assoc., 477 S.W.2d 920, 924 (Tex.Civ.App. Dallas 1972, writ ref'd n. r. e.); Southern Pine Lumber Co. v. Hart, 329 S.W.2d 511, 515 (Tex.Civ.App. Fort Worth 1959), reversed on other grounds, 161 Tex. 357, 340 S.W.2d 775 (1960). A person who does not have ownership rights cannot prevail in a boundary line dispute with the true owner of the adjoining property. Farrow v. Sims, 311 S.W.2d 473, 478 (Tex.Civ.App. Dallas 1957, writ ref'd n. r. e.); Rubiolo v. Lytle, 370 S.W.2d 202 (Tex.Civ.App. San Antonio 1963, writ ref'd n. r. e.); Cf. Kishi v. Humble Oil & Refining Co., 298 F. 218 (5th Cir. 1924), cert. dism'd, 268 U.S. 708, 45 S.Ct. 514, 69 L.Ed. 1169 (1925). In such a case, a trespass to try title action must be brought by one who claims a present legal right to possession of the disputed land together with such title in him as would render the possession by the defendant unlawful. See: City of Mission v. Popplewell, 156 Tex. 269, 294 S.W.2d 712 (1956); Hays v. Texas & Pac. Ry. Co., 62 Tex. 397 (1884); Hooper v. Hall, 30 Tex. 154 (1867); Birmingham v. Griffin, 42 Tex. 147 (1875). The plaintiff in this instance failed to introduce any competent evidence of his interest in the land he claimed to support the trial court's judgment awarding him title and possession to the land in question.

This brings us to defendant's contentions that the trial court erred in entering judgment in favor of the plaintiff because defendant established his title to the disputed strip of land in question through adverse possession and that there was no evidence to the contrary. We agree.

In response to plaintiff's suit, defendant Rocha specially pled title based on the ten...