Wiggins v. Houston Oil Co. of Texas, 4397.

• Decision Date: 15 May 1947
• Docket Number: No. 4397.,4397.
• Parties: WIGGINS et al. v. HOUSTON OIL CO. OF TEXAS et al.
• Court: Texas Court of Appeals

203 S.W.2d 252

WIGGINS et al. v. HOUSTON OIL CO. OF TEXAS et al.

No. 4397.

Court of Civil Appeals of Texas. Beaumont.

May 15, 1947.

Rehearing Denied June 4, 1947.

Appeal from District Court, Tyler County; W. B. Browder, Judge.

Action in trespass to try title by Lee H. Wiggins and others against the Houston Oil Company of Texas and others, to recover 160 acres of land. From a judgment on an instructed verdict in defendants' behalf, the plaintiffs appeal.

Judgment reversed, and cause remanded for new trial.

Grover C. Lowe, of Woodville, and John Lindsey, of Pt. Arthur, for appellants.

Blades, Chiles, Moore & Kennerly, of Houston (B. F. Whitworth, of Houston, of counsel), for appellees.

WALKER, Justice.

Appellants brought this action against appellees in trespass to try title to recover 160 acres of land in the Augustus Wagner 320 acre survey in Tyler county. Appellants are the successors in interest of John Buck Wiggins and wife, Elizabeth Wiggins. Excepting certain formal parties, they are the surviving children of John Buck Wiggins and wife, together with the heirs of Monroe Wiggins, a son of the said Wiggins and wife. Appellees are Houston Oil Company of Texas, Southwestern Settlement & Development Corporation and Republic Production Company.

Under the formal allegations in trespass to try title appellants plead fee title in themselves to a specific 160 acres of land in the northeast corner of the Wagner survey. They also alleged title under the ten year statute of limitations to this specific 160 acres, and in the alternative, to an undefined 160 acres, to be located and set aside to them as the ten year statute provides. Appellees' pleadings include a plea of not guilty and pleas of title to the land under the three-year statute of limitations and under Article 5519a, Vernon's Ann.Civ.St.

Appellants will be referred to hereinafter as plaintiffs, and appellees as defendants, as they were in the trial court.

Pending suit, Lee H. Wiggins, one of the plaintiffs, conveyed his interest in the specific 160 acres to his brother and coplaintiff, Jimmie Wiggins, although not in the Wagner survey as a whole, and he also filed a disclaimer; and on this cause coming to trial, and certain objections being made to the competency of testimony which plaintiffs sought to adduce from him, he also took a nonsuit, we infer that Monroe Wiggins was one of the original plaintiffs and that his heirs were substituted in his stead, upon his death.

The cause was tried to a jury, but at the conclusion of the testimony the trial court instructed a verdict in defendants' behalf, upon their motion so to do, and rendered judgment that plaintiffs take nothing, either in the specific 160 acres or in the Wagner survey as a whole. Plaintiffs have appealed.

On trial, plaintiffs asserted only a limitation title based upon the 160 acres provision of Article 5510, R.S.1925. Their title depends upon the possession of John Buck Wiggins as a naked trespasser. They offered evidence to show that from 1893 until John Buck Wiggins' death in 1905, the said Wiggins had adverse possession of a small field containing some 8 or 10 acres, known as the Ladd field, which was located upon the Wagner survey, apparently in the northeast part of that survey, and that during this period Wiggins claimed 160 acres of land. John Buck Wiggins died on November 5, 1905, or perhaps on October 6, 1905. Plaintiffs also offered some evidence to show that during 1906 and 1907 this field was cultivated by two of John Buck Wiggins' sons, namely, Lee H. Wiggins and Monroe Wiggins, to whom we have referred above. All of the Wiggins children seem to have been minors at this time, residing with their mother, Elizabeth Wiggins. Mrs. Wiggins died on July 3, 1916. The evidence shows without dispute that about 1907 or 1908 Mrs. Wiggins and her children moved away from the community in which the Wagner survey is located and that afterwards, prior to the filing of this suit on March 1, 1940, none of them made any use of, or held possession of the Ladd field, or of any part of the Wagner survey, and that with the possible exception of Lee H. Wiggins, who testified to certain hunting and fishing trips, none of them have been upon the Wagner survey or done any act evidencing any claim whatsoever to land in that survey. None of these people paid taxes on the land after John Buck Wiggins' death and there is no proof that Wiggins himself ever paid taxes on this land.

Defendants hold the record title to the Wagner survey. In addition to their proof of record title, they attempted to establish title under the three year statute of limitations and under Article 5519a. They also offered evidence disputing plaintiffs' theory of the facts respecting John Buck Wiggins' occupancy of the land in suit.

Plaintiffs' points of error attack, and defendants' counter points affirm the instruction of a verdict and thereby raise three questions, on which our disposition of this appeal depends, namely: (1) whether there is any substantial evidence in this record tending to support the limitation title claimed by plaintiffs, either to a specific or to an undefined 160 acres, (2) whether defendants proved title in themselves under the three year statute of limitations, and (3) whether defendants proved a title in themselves, as a matter of law, under the provisions of Article 5519a.

I. Is there evidence of limitation title in favor of plaintiffs? Defendants say that plaintiffs' proof locates the residence, possession and claim of John Buck Wiggins and family upon land north of the Wagner, during the limitation period, to-wit, upon Section 14, East Texas Railway Company Survey, and that plaintiffs therefore failed to show title to land in the Wagner survey. We are inclined to agree that plaintiffs have put the Wiggins residence (that is, the residence they claimed for Wiggins during the limitation period) upon section 14. There are various circumstances in the record, but the most striking are Lee H. Wiggins' repeated statements locating this residence on section 14 and confirming the substance of B. C. Barclay's testimony that in 1940 the said Lee H. Wiggins pointed out to him the site of a former residence of John Buck Wiggins, which was located on section 14. However, this matter does not control our judgment, for the evidence referred to below tends to show that the Ladd field was a separate tract held under a separate possession, that it was situated upon the Wagner survey, and that John Buck Wiggins held it under adverse possession for 10 years or longer, cultivating it annually under a claim extending to 160 acres. We will state briefly the basis for our conclusions.

(A) The Wagner survey was patented to Augustus Wagner on April 16, 1852. It takes the form of a square containing 320 acres, of which each boundary is 1344 varas long. The north boundary runs due east and west, and the eastern boundary runs due north and south. Adjoining the Wagner on the north and east is section 14, East Texas Railway Company survey; the north and east lines of the Wagner also constitute boundaries of section 14. Apparently the western line of section 14 runs north from the Wagner northwest corner.

The specific 160 acres sued for by plaintiffs is in the form of a square, each side of which is 950 varas long. This tract is located in the northeast part of the Wagner survey; the northeast corner of the Wagner and of the 160 acres is a common point, and the northern and eastern boundaries of the 160 acres lie upon the northern and eastern boundaries of the Wagner.

Several streams flow through these various tracts which tend in some degree to fix the location of the Ladd field and of the John Buck Wiggins residence, but we need only refer to one, namely, Kimball creek. This stream crosses the Wagner survey from west to east and runs through the southern part ("on the south line") of the specific 160 acres in suit.

B. C. Barclay, a surveyor of 35 years experience, went upon the Wagner survey in February, 1940, in company with Lee H. Wiggins, and located and viewed the specific 160 acres sued for by plaintiffs. He said that he found the remains of an old field covering 6 or 8 acres in the northeast corner of the Wagner, about 300 varas south of the Wagner north line and about 300 varas west of the Wagner east line, and further, that this field was north of Kimball creek. The jury could infer that this was the only evidence of cultivation he saw upon the 160 acres. He saw no evidence of any dwelling upon this 160 acres, nor had he ever seen such evidence upon the Wagner survey, and he testified that he had been upon the Wagner survey many times.

He said that this field on the Wagner lay south of the residence site on section 14 which Lee H. Wiggins had designated as a former John Buck Wiggins residence.

There is other testimony, the details of which are referred to below, tending to prove that the John Buck Wiggins residence lay apart from the Ladd field, and that this field lay south of the residence, although we note that Dowden said: "The little old field was back, I would call it, kind of a southwest course from the house."

Lee H. Wiggins made several statements which tend to show that the Ladd field was on the Wagner survey.

During his first examination, he testified that Ladd showed him the northeast corner of the Wagner survey. "Q. Who is Mr. Ladd? A. A farmer on that place." (Obviously a farmer on the Wagner survey.) "Q. Is that the man your father succeeded him there? (That is, succeeded Ladd in occupancy of the farm on the Wagner.) A. Yes, sir."

During his third examination, Lee H. Wiggins testified at length about the cultivation and extension of the Ladd field and the removal of timber therefrom, and about the cutting of timber and making of ties upon a 160 acre tract which we take to be the specific 160 acres in suit, and upon a 160 acre tract which the witness said John Buck Wiggins ...