Texas & N. O. Ry. Co. v. A. G. & J. C. Broom

• Decision Date: 18 November 1908
• Citation: 114 S.W. 655
• Parties: TEXAS & N. O. RY. CO. v. A. G. & J. C. BROOM.
• Court: Texas Court of Appeals

114 S.W. 655

TEXAS & N. O. RY. CO. v. A. G. & J. C. BROOM.

Court of Civil Appeals of Texas.

November 18, 1908.

On Rehearing, December 23, 1908.

Appeal from District Court, Sabine County; W. B. Powell, Judge.

Action by A. G. & J. C. Broom against the Texas & New Orleans Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Goodrich & Synnott, for appellant. C. W. Nugent and H. B. Short, for appellees.

FLY, J.

This is an action of trespass to try title to 160 acres of land instituted by appellant. The cause was tried by jury, and resulted in a verdict and judgment for appellees. The title to the land in controversy was held by appellant, unless appellees showed title under the statute of 10 years' limitation. The evidence satisfactorily shows that appellees and those under whom they claim had peaceable and adverse possession of the land in controversy for a period of more than 10 years, cultivating, using, and enjoying the same, and that a title by limitations is vested in them.

It appears from the evidence that G. W. Whitehead, through whom appellees claim, owned in 1888 a tract of land, known as the "Jacks tract," which lies directly east of the 160 acres of land sued for, and that he, with full knowledge of his boundaries, went upon the 160 acres of land, which at that time belonged to appellant, and fenced and improved a part of it, with the avowed intention of perfecting a title by limitations to the specific 160 acres of land which are involved in this suit. His possession and that of those holding under him among the number being appellees was not interrupted until the institution of this suit on May 4, 1903, a period of 15 years. The land fenced by G. W. Whitehead was entirely on the land in controversy, and was not the projection of a farm lying partly on the Jacks tract of land. The south line of the land in controversy is a continuation of the south line of the Jacks survey out to the west line of the former, thence with that line to the north line to a point that is reached by a prolongation of the west line of the Jacks survey, thence south to the said line, and with it to the place of beginning, which is the southwest corner of the Jacks survey. G. W. Whitehead had the lines mentioned designated and marked on the ground before he went into possession in 1887 or 1888. The land was measured with a rope and trees were marked along it. The old marks along the lines were found by a surveyor in 1903. This is not a case of the extension by an adjoining owner of his farm or other improvements across his line onto the land of another, as claimed by appellant, but the case is one where the person owning a tract of land deliberately enters into possession of the land of another adjoining his, with the avowed intention of holding 160 acres of land which he has designated by metes and bounds. The cases of Bracken v. Jones, 63 Tex. 184, and Tucker v. Smith, 68 Tex. 473, 3 S. W. 671, have no applicability to the case presented to this court by the statement of facts. In the case of Bracken v. Jones the contest was over four acres of land which adjoined the tract of Mack Bracken, and which he had included in his inclosure which he had ignorantly projected across his boundary line. He did not claim any of the adjoining land, but thought the four acres were a part of his tract. Under that state of facts the court very properly held: "Whilst the true owner is chargeable with a knowledge of the boundaries of his land, he can hardly be affected with notice that a neighbor who has encroached a few feet upon his tract is doing so for the purpose of acquiring title to 640 acres of it. * * * The party encroaching would be entitled to no more than the land actually occupied by him." To the same effect is the decision in Tucker v. Smith and the line of cases similar thereto. The fact that the owner of adjoining land was the party endeavoring to obtain title by limitation to the land, if the facts show a distinct open hostile claim to the land, should cut no figure. He can perfect title by proof of the same facts that would give title to any other claimant to the land. The distinction between the cases mentioned and one like that now under consideration is pointed out in an opinion rendered by the Court of Civil Appeals of the First District, in the case of Davis v. Oil Company, 111 S. W. 219. Under the facts in this case, the possession of appellees and those under whom they claim would not have given them title to 160 acres of land out of the tract owned by appellant without the exact limits being prescribed, had there not been a designation of the lines and corners of a specific 160 acres. But the lines were marked, the corners fixed, and open claim made to the identical tract of land sued for by appellant. The facts bring the case within the purview of the decision in Giddings v. Fischer, 97 Tex. 184, 77 S. W. 209, as to the description of the land claimed under limitation. It does not matter that the corners were not fixed as a surveyor might have done it, nor that the lines were not run out in a very artistic manner. The land was designated, and, when the surveyor surveyed the land in the most approved style, he found the corners correctly fixed and the lines properly marked.

There is no cogency in the contention that a naked trespasser cannot by entering into actual possession of a part of a large tract, and by surveying a less tract than the whole, and thereafter using, occupying, and claiming it to such designated lines and corners, acquire title to the specific land designated by limitation. Appellant fails to give a reason for its proposition, and the cases of Whitehead v. Foley, 28 Tex. 268, Mooring v. Campbell, 47 Tex. 41, and Bracken v. Jones, 63 Tex. 187, cited by it, do not sustain it. This case in its facts is stronger than the case of Davis v. Oil Co., hereinbefore cited. In that case all that Davis did to designate the 160 acres and segregate it from the section of which it was a portion was to "step it off," without marking the lines. The court held: "He settled on the land with the intention, from the beginning, of claiming the entire 160 acres, and of maturing his occupancy into a title under the statute of limitations of 10 years. His possession was peaceable and uninterrupted by suit until the institution of the present action. His claim to the land was known to his neighbors, but it does not appear that he gave notice to any one, or that they knew, that he claimed the identical 160 acres to which he now sets up title." The lower court rendered judgment against Davis, which was reversed by the Court of Civil Appeals, and judgment rendered in his favor for the identical 160 acres of land that he had "stepped off." The Supreme Court has approved the latter judgment by refusal of a writ of error. In the case at bar G. W. Whitehead fenced and cultivated a part of the...