Tarver v. Naman
| Decision Date | 21 January 1954 |
| Docket Number | No. 3141,3141 |
| Citation | 265 S.W.2d 852 |
| Parties | TARVER v. NAMAN. |
| Court | Texas Court of Appeals |
Bryan, Maxwell, Bryan & Wilson, Waco, for appellant.
Naman, Howell & Boswell, Waco, for appellee.
This is a boundary suit in the form of trespass to try title filed by appellee against appellant, involving the line between lots owned respectively by appellee and appellant in Block 11 of the Ginocchio Addition to the City of Waco. Appellees is record title owner of Lots 13 and 14 and appellant is record title owner of Lot 12.
Appellant disclaimed any interest in Lots 13 and 14 except such portion thereof, if any, as might be included in property described as follows:
A review of the undisputed evidence in the case reflects that the entire Ginocchio Addition will not fit exactly into the tract out of which it was dedicated and for which reason it is impossible to say with certainty where the true lines on any lot in the Addition are located; that the appellant bought Lot 12, which the deed recited contained a width of 50 feet; that there is 50 feet only claimed by appellant.
The witness Browning, who owned Lot 13 (now the property of appellee) from 1923 until 1944, testified that in 1923 the Davis Lumber Co. built the fence that divides the Lots 12 and 13, and that he believed the fence to be the true line and that he never used or claimed any property beyond the fence or the fence line extended.
The evidence further reflects that A. H. Bell and A. H. Bell, Jr., owned Lot 12 (now the property of appellant) from February 1933 to July 1945. A. H. Bell, Jr., testified that the fence between the property of appellant and appellee was on the property when it was deeded to him, and that he claimed the property between the fences on the east and west sides during all the time that he was owner, thereof, and that no one disputed his claim to the property during all of the time that he or his father owned same.
The witness Clarence C. Jenkins purchased Lot 12 from A. H. Bell, Jr., in 1945, and sold the property to appellant in June 1950. He testified that when he purchased the property A. H. Bell's agent pointed out to him the boundaries of the property, and that it was pointed out to be all the land extending between the two fences.
The appellant testified that he took possession of the property pointed out between the fences and the fence lines extended; that he used all of the same in the normal manner of residence and occupancy; and that no one ever questioned his right to use and occupy the property between the two fences or the fence lines extended until this suit was filed in March 1953.
The witness L. F. Johnson testified that he lived on the adjoining lot to the west of appellant's lot since 1927, and that the fence between appellant's and appellee's property was at the same place as it had been since that time. He further testified that all during the time he lived there to the president time that those who occupied appellant's property and who owned appellant's property cultivated and used all of the property for residential purposes, such as the growing of gress and flowers, and that they took care of it. He further testified that no one ever questioned the possession of appellant or the other owners of that property during all of the time that he knew the property.
The witness Gilbert Urbantke testified that he lived on appellant's property from 1937 to 1942; that he took possession of all the property between the fences and no one questioned his possession; and that he took possession of the front yard where there was no fence and maintained and kept the yard to the fence line extended out to the street.
The witness R. G. Golding testified that he occupied, used and took possession of appellant's property from 1943 to 1945; that he used all of the property between the fences and the fence line extended to the street, and that no one ever questioned his possession during all the time he lived on the property.
The witness F. L. Pittillo testified that he had lived in the same block as appellant's property since 1926; that the fences were up when he moved on his property and that in the 27 years he had known appellant's property no one ever questioned appellant's or appellant's predecessors in title in their use of the property. He testified that all the persons in possession mowed the lawn and kept the line up to the fences and to the fence line extended to the street.
The witness Uran testified that he had surveyed and made fieldnotes of the tract of land claimed by appellant in this case, and that these fieldnotes placed the line between appellant's and appellee's property along the fence line and the fence line extended to the street; and that the fence line extended from the fence to the street runs in a straight line. (These fieldnotes are quoted supra.)
All of the foregoing evidence is undisputed and uncontradicted.
Trial was to a jury. Both appellee and appellant moved for an instructed verdict. The Trial Court, in effect, overruled in part and sustained in part the motion of each party by instructing the jury to return a verdict awarding appellant the land west of his fence, but awarding the 8 foot strip of land west of the fence line extended to the street, to the appellee. The Trial Court found that appellant had adverse possession of the strip under fence, but apparently reached the conclusion that it was necessary that appellant have all of the property that he was claiming under fence, in order to acquire title thereto by limitation. The strip of land in controversy on this appeal is approximately 8 feet wide and 50 feet long.
The issue therefore for determination by this court is, whether under the undisputed and uncontradicted evidence, the appellant cultivated, used and enjoyed the strip of land along the line of his fence, from the end of his fence to the street, in a manner and for a sufficient length of time to acquire title thereto under the 10 year statute of limitations, Vernon's Ann.Civ.St. art. 5510.
According to the official plat of the Ginocchio Addition each lot in Block 11 is 50 feet in width by 165 feet in length, the opposite sides of each lot being parallel to each other. It will be noted that the fieldnotes quoted above describe a parallelogram 50 feet in width and 165.01 feet in length. The course and distance of the south and north lines of the lot as thus described coincide with the course and distance of the south and north lines of Lot 12, Block 11 of the Ginocchio Addition as shown by the recorded plat of the Addition. Although the east and west lines of the lot described in the fieldnotes do not coincide with the east and west lines of Lot 12 as shown by the recorded plat of the Addition, the undisputed evidence shows that the six inch concrete curb and the old fence along the west line as referred to in the fieldnotes, as well as the old fence along the east line as referred to in the fieldnotes, have remained unchanged on the ground for 25 years.
It will also be noted that the property which the trial court in effect awarded to appellant is bounded, not by four straight lines, but by six straight lines, and that the west line of the strip 8 feet wide by 50 feet long is not parallel to the west line of the fieldnotes which definitely fix the west boundary line of appellant's property. Not only so, but the west line of the strip 8 feet wide by 50 feet long which the Trial Court awarded to appellee runs below the eaves of the roof along the east side of appellant's residence which has been used and occupied by appellant and his predecessors in title for more than 25 years.
We think the fact that there was no fence between appellee's and appellant's property for the 50 feet nearest to the street is unimportant. This court will take judicial knowledge of the fact that in most modern cities front yard fences are exceptions rather than the rule. While an inclosure of land is decisive proof of possession, it is not the only evidence of the fact, and many cases hold that an inclusore is not essential to adverse possession. Young v. City of Lubbock, Tex.Civ.App., 130 S.W.2d 418; Liles v. Sawyer, Tex.Civ.App., 257 S.W.2d 512; Gleckler v. Denton, Tex.Civ.App., 149 S.W.2d 213; Major v. Meyers, Tex.Civ.App., 111 S.W.2d 1184.
Our Supreme Court has stated that a fence does not preclude the assertion of limitation title if the limitation claimants' possession and use of the land to defined and marked boundaries, whether fenced or obtained for a sufficient length of time. and adverse to give fair notice of the extent and hostility of their claim and obained for a sufficient length of time. McCall v. Grogan-Cochran Lumber Co., 143 Tex. 490, 186 S.W.2d 677.
Further, a plea of title by the 10 year statute of...
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Morse v. Southerland
...fieldnotes actually include the disputed tract, the tract is acquired by the adverse possessor under such circumstances. Tarver v. Naman, Tex.Civ.App., 265 S.W.2d 852, W/E Ref. NRE; McCabe v. Moore, Tex.Civ.App., 38 S.W.2d 641, W/E Dis., 2 Tex.Jur. 125; Major v. Meyers, Tex.Civ.App., 111 S.......
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Short v. Lyness, 5925
... ... An inclosure of land is not essential to adverse possession. Tarver v. Naman, ... 265 S.W.2d 852, 856 (Tex.Civ.App. Waco 1954, writ ref'd n. r. e.). "If the limitation claimants' possession and use of the land to ... ...