Valadez v. Barrera, 16767

• Decision Date: 12 January 1983
• Docket Number: No. 16767,16767
• Citation: 647 S.W.2d 377
• Parties: Mrs. Adan VALADEZ, et al., Appellants, v. Mrs. Pedro BARRERA, et al., Appellees.
• Court: Texas Court of Appeals

Page 377

647 S.W.2d 377

Mrs. Adan VALADEZ, et al., Appellants, v. Mrs. Pedro BARRERA, et al., Appellees.

No. 16767.

Court of Appeals of Texas,

San Antonio.

Jan. 12, 1983.

Rehearing Denied Feb. 15, 1983.

John B. Peacock, Jr., Falfurrias, Terry A. Canales, Canales & Barrera, Alice, for appellants.

B.J. Shepherd, Alice, David Garcia, Falfurrias, Homer E. Dean, Jr., Alice, John E. Dorris, Victoria, Herschel Martin, San Antonio, Ellis Morris, Houston, for appellees.

Before CADENA, C.J., and ESQUIVEL and BUTTS, JJ.

OPINION

BUTTS, Justice.

This is a trespass to try title action brought by the heirs of Benito Garcia, Sr. and wife, Lorenza, to recover possession and title to two tracts of land of approximately 14 acres located in Brooks County. They claim by adverse possession only, relying upon the ten year statute of limitation. Tex.Rev.Civ.Stat.Ann. art. 5510 (Vernon 1958). Among several defendants were Benito Garcia, Jr. and his wife, Virginia, the Miller brothers, Laurence, Jr., Gardner, and John, and Mrs. Pedro Valadez as well as other Garcia heirs. Cross-actions by the Millers and Salinas against Crown Central Petroleum Corporation have been severed. (No. 16699; No. 16700)

Intervenor Frank Salinas pressed his claim for title to a part of the acreage based on his lumber company's foreclosure proceedings against the Garcias, Jr. The trial court ruled that Salinas' claim for debt (deficiency owed after purchase) was barred by the four year statute of limitation. Tex.Rev.Civ.Stat.Ann. art. 5527 (Vernon 1958). In addition, the trial court, after ruling that no fact issues existed as to the Millers, Valadez, and Salinas, instructed the jury to return a verdict for plaintiffs. The instructed verdict forms the foundation for twenty-two assertions of error by the Millers, Valadez, and Salinas. We agree that the trial court erred in directing the verdict and reverse the case.

FLOWELLA TOWNSITE

A background study of the subject fourteen acres proves instructive. Evidence shows that around 1910 certain land companies sold lots and acreage in the south Texas area, one of those companies being Burton and Danforth Land Company. Two men, Burton and Danforth, obtained land from the King Ranch, that land once being part of an 18,000 acre pasture known as La Parrita Ranch. They caused the land to be surveyed and platted; calling one of the Burton and Danforth subdivisions Flowella Townsite. The town was laid out in a circle around a flowing well. This was the center of Flowella, surrounded by streets, parks and lots which comprised four additions: Marlborough Court, Rosemere Court, Vandeventer Court, and Belleview Court. It is Belleview Court which contains the subject land of this appeal, the land being certain numbered lots in section 14.

A witness, Neil Rupp, testified that as a boy he worked with the surveyors who platted the Flowella townsite. He testified he saw the resulting work and that the "blueprint" of the town was burned in a courthouse fire later. The town of Flowella did not prosper, although for a time there was a school in the vicinity. The land reverted to its natural state of brush and grass except for those acres used for farming and grazing. It was poor land, not providing much for families who worked just a few acres. Rupp stated he owned about 2,000 acres and knew most of the inhabitants of the area, including the Garcia, Sr. family, some of them having worked for him.

THE GARCIA CLAIM

There was evidence that Garcia, Sr., with his wife, moved onto the north part of the 9.52 acres, tract one, around 1919. They lived in a small house with their ten children. Garcia, Sr. purchased that lot and other lots in the Belleview Court section from Robert Miller, predecessor in title to the Millers, and others. He farmed about five acres, thus feeding his family and selling some produce. He had livestock, but there was conflicting testimony about the fencing and where the cows and mules were kept. After Garcia's death in 1936, his widow remained in the house. A son, Garcia, Jr. (sued here as a defendant but joining with the plaintiffs in the claim of adverse title) went to war about 1942 and returned after 1945. The widow died in 1976. Another son has recently returned to reside on the 9.52 acreage (tract one). The other heirs live away from the disputed land.

It was Garcia, Jr. who kept livestock on the 9.52 acres even after he moved to Falfurrias. It is clear that the 4.07 acres (tract four) in the southwest corner of Belleview Court in Flowella was never lived upon by the Garcias. Garcia, Jr. and a brother testified they ran a few head of cattle and used the 4.07 acres to "trap" the animals. Testimony revealed that fences on the outside of the smaller acreage had been placed there by the county many years before. Whether or not there had been recent upkeep was not clear. It was not disputed that the smaller tract was, for the most part, overrun with brush. Further, although Garcia, Jr. had never lived on that land, he stated, and others agreed, that he had a "party house" on its southern part, fronted by a county road. The claim by adverse possession of the Garcia plaintiffs to the 4.07 acres rests upon Benito, Jr.'s sketchy activities there, and his alone. Their adverse claim to the 9.52 acres rests also upon his continuing activities there after his mother's death. He and his wife had lived for several years in Falfurrias.

Two events precipitated this trespass to try title action originally filed in August, 1977, by the adverse claimants, the heirs of Garcia, Sr.: (1) In 1970 Garcia, Jr. executed a promissory note, secured by a deed of trust with vendor's lien on the 4.07 acres, to Frank Salinas; (2) later the adverse claimants leased to Crown Central Petroleum Corporation the 14 acres to be included in a pooled unit for production of gas and gas distillate. Crown obtained production in May, 1974.

Basing their claim for the land upon the ten year statute of limitation, Tex.Rev.Civ.Stat.Ann. art. 5510 (Vernon 1958), the Garcia heirs must have instituted their suit within the ten years next after the cause of action accrued. The suit was filed in August, 1977. However, plaintiffs' second amended original petition laid claim to the two tracts not only through the ten years' limitation title but also through the three, five, and twenty-five year statutes, and alleged title within themselves by deeds. On the day of trial the trial court permitted plaintiffs to abandon all pleadings as to title acquired by deed. They then relied solely upon the ten year statute. In addition, plaintiffs abandoned the instruments comprising their abstract of title at the same time.

THE MILLER CLAIM

The Millers sought to introduce their title to the two tracts of land by a will from their predecessor, Robert Miller, which devised many of the Belleview lots in question, and other lots in Marlborough Court and Vendeventer Court in Flowella to Laurence Miller, the father of the Miller brothers, defendants. They sought to introduce a deed from their father to Laurence, Jr. which granted the surface estate but which reserved the mineral estate in some lots which are the subject of this suit. Further they sought to introduce the deed from Laurence Miller, their father, to the three of them in which he later granted to them the mineral estate in many of those same lots. Thus they claim some lots in fee simple; in others they claim ownership of the mineral estate. These instruments were included in the Millers' abstract of title, which had been requested by plaintiffs. The trial court, upon objection by plaintiffs, refused to admit these deeds or the will.

Plaintiffs' request for an instructed verdict rested upon the argument that there was an insufficient description in the Millers' deeds and will of the property of this suit; that the property could not be located on the ground; that the townsite of Flowella could not be shown to exist for lack of an official plat. Thus, it is, they maintain, as if the land described in the will and deeds, in fact, never existed at all. In the will and deeds the land is described in this manner:

... the following parcels and lots of land [listing specific lot numbers] ... in Belleview Courts, Flowella Townsite, in the Burton and Danforth Subdivision of the Parrita Ranch, according to a plat thereof recorded in the Map and Plat Records of Brooks County, Texas....

Since there exists no official plat of the Flowella townsite, plaintiffs argue, the reference to the "official plat" means nothing. Therefore, the Millers received nothing by will or conveyance by deed, nor did they retain any mineral rights because the deeds granting the surface lands only were void for lack of a valid description. The trial court excluded all the instruments containing reference to Flowella and the numbered lots, ruling they could not be located on the ground and, therefore, were inadmissible.

Plaintiffs attached to their second amended original petition field notes describing by metes and bounds and objects on the ground the two tracts in dispute. The surveyor and maker of these field notes, Alfredo Barrera, testified on cross-examination that he could locate the lots in the Belleview Court of the Flowella townsite on the ground. Other witnesses, both plaintiffs' and defendants', located the property of this suit on the maps of both parties. However, all of the defendants' deeds, maps, and instruments identifying the land by lot numbers were excluded by the court. But we note that plaintiffs introduced into evidence a deed from Mrs. H.M. King to J.L. Burton, dated March 6, 1916, which would constitute a common source of title for the Garcias and the Millers (the same instrument was listed also in the Millers' excluded abstract of title). This deed contains the identical description of the disputed lots in the Flowella townsite as in the defendants' deeds. (See description, infra ).

THE PLAINTIFF' BURDEN

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