Smith v. Jones

• Decision Date: 14 December 1910
• Citation: 132 S.W. 469
• Parties: SMITH v. JONES et al.
• Court: Texas Supreme Court

132 S.W. 469

SMITH v. JONES et al.

Supreme Court of Texas.

December 14, 1910.

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

Action by Jesse H. Jones and others against W. H. Smith and others. There was a judgment of the Court of Civil Appeals affirming a judgment for plaintiffs, and defendant W. H. Smith brings error. Affirmed.

W. W. Blake, for plaintiff in error. T. C. Ford and Baker, Botts, Parker & Garwood, for defendants in error.

WILLIAMS, J.

The plaintiff in error was one of the defendants in the district court, in this action brought by the defendants in error to recover a tract of 640 acres of land known as the "Stephen Williams survey." The questions arise out of facts on which W. H. Smith relied to sustain his claim to 160 acres under the 10 years' statute of limitations.

The history of the possession is as follows: Enoch Smith, the father of C. C. Smith and of plaintiff in error, in 1873 and 1874 lived on the Enoch Smith survey, which adjoins the Williams survey on the east, and his two sons, it seems, at that time lived with him. During that time, at any rate, C. C. Smith cultivated a field on his father's land in the northwestern part of the Smith survey, and, supposing the land just west of it to be vacant, he determined to acquire 160 acres from the state for a homestead, and in 1873, in pursuance of that purpose, caused a survey of that quantity to be made in the northeast corner of the Williams tract. That is the land in controversy. After the survey he made his residence in a house which he put across the line dividing the two surveys but mostly on the tract of 160 acres. Early in 1874 he sold his claim to his brother, W. H. Smith, making a deed, so the evidence at least tends to show, describing the tract in controversy. By one or the other a smokehouse and corn crib were built on the 160 acre tract near the dwelling, and about one acre of land was cleared and put in cultivation and inclosed with the land, 10 or 12 acres, already in cultivation in the field on the Smith survey. The evidence indicates that in locating the residence C. C. Smith intended thereby to occupy the land in controversy as his home, and that there was no purpose to put the house on the Smith survey. After he sold to plaintiff in error, the latter entered into possession and continued the use of the land, as indicated by the improvements, in connection with the field before mentioned on the Smith survey. Some time after taking possession, W. H. Smith bought 60 acres on his father's survey adjoining the land in suit, including the field before mentioned, and for about 15 years he maintained possession and use of the two tracts together as his home. Neither he nor C. C. Smith ever intended to take the property of any one else, or, as he expresses it, to steal the land or to make an appropriation of it fraudulently or dishonestly; but both believed it was vacant land, and intended to obtain it lawfully from the state as a homestead donation. He testified that he always claimed the land, but plainly this only meant that his claim was for the purpose and in the way stated; and when, after 15 years, he became satisfied that he could not so acquire the land, he left it, removing all the houses by means of which he had held the possession.

The Court of Civil Appeals, reversing the district court, applied the doctrine enforced in such cases as Bracken v. Jones, 63 Tex. 184, Holland v. Nance, 102 Tex. 177, 114 S. W. 346, and Bender v. Brooks, 127 S. W. 168, holding that the evidences of possession lying along and near the boundary line of the two tracts were not sufficiently open and unambiguous to charge the owner of the Williams survey with notice that his land was claimed. The court also applied the doctrine of Schleicher v. Gatlin, 85 Tex. 270, 20 S. W. 120, to the effect that a possession taken and held under such a mistake as to ownership and with such a purpose as that indicated by the evidence in this case was not hostile to the true owner. It was thought by this court, when the writ of error was granted, that the Court of Civil Appeals had probably extended the doctrine of the first-named cases too far, and that the other needed some elucidation from this court in view of the many cases in which its application has been discussed in the Courts of Civil Appeals and of the action of this court in refusing writs of error in several of those cases in which conflicting views have been expressed in opinions of those courts.

A careful scrutiny of the evidence has convinced us of the correctness of our impressions as to the first holding. The case differs from those relied on in some important particulars. In Bracken v. Jones and Holland v. Nance, owners of lands in using them mistook the exact locations of their boundaries and extended their fences across their lines so as to take in small parts of adjacent tracts belonging to others. In Bender v. Brooks the possessor held land under a contract of purchase and obtained permission to use, as tenant, a part of an adjacent tract from a claimant thereof, assumed for the purposes of the decision not to have been the true owner, and extended the fence inclosing his own land across the line and included thereby a part of the adjoining land. The case in its leading facts was like the two first mentioned, except that the possession was first taken intentionally and by tenant. These differences were held not to be decisive, substantially, because from its external manifestations the possession appeared and could properly be considered by the owner to be a part of that rightfully asserted by the possessor of his own land and did not therefore have that clear and unambiguous quality essential to an adverse possession hostile to the claim of the true owner. The facts were held to present a question of law and not one of fact for the jury. It must be kept constantly in mind that, in applying a proposition like that, the facts of particular cases must be carefully regarded, and that additional facts may easily take the question, whether or not the evidences of possession and adverse claim were sufficiently certain and unequivocal to give notice to reasonably diligent owners, out of the province of the court and into that of the jury.

Here the possession was taken, not by an adjoining proprietor, but by a mere tenant, or cropper, on the adjoining land. It was taken by the location upon the land in dispute of a dwelling house and other buildings incident to the home for which purpose the land was afterwards held and used. This was in pursuance of a survey, itself an act of notoriety done with the definite purpose of establishing the home. The home thus established became the nucleus about which the other concomitants of possession gathered. In the other cases the reverse was true.

It may be that there was enough uncertainty left by the circumstances to raise a question of fact as to the sufficiency of the possession in the respects before referred to; but we think it is not true that those circumstances were clearly such as to justify the holding as matter of law that the possession was too deceptive in its appearances to support the defense.

Were there nothing else to sustain the judgment of the Court of Civil Appeals, it would follow that, in reversing the judgment on the first ground, it should have remanded the cause for a new trial on the question of fact stated. But we think the other position taken by the court is correct. Stated as we hold it to be correct, the proposition is that evidence showing no more than that a possession, relied on to sustain the defense of limitation, was taken and held under the mistaken belief that...