Wingfield v. Smith

• Decision Date: 06 April 1922
• Docket Number: (No. 8125.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 241 S.W. 531
• Parties: WINGFIELD v. SMITH.
• Court: Texas Court of Appeals

241 S.W. 531

WINGFIELD v. SMITH.

(No. 8125.)^*

Court of Civil Appeals of Texas. Galveston.

April 6, 1922.

Rehearing Denied May 4, 1922.

Appeal from District Court, Anderson County; W. R. Bishop, Judge.

Action by J. W. Wingfield against W. R. Smith. Judgment in favor of defendant, and plaintiff appeals. Affirmed.

J. W. Stitt, of Fort Worth, for appellant.

Campbell & Sewell and Swift & Cotten, all of Palestine, for appellee.

PLEASANTS, C. J.

This is an action of trespass to try title and for damages brought by the appellant against the appellee.

The land sued for is described in the petition as the John Reeves survey, which appellant claims under an award by the Commissioner of the General Land Office of the State of Texas made to him in the year 1905, and contains 90 acres.

The answer of the defendant disclaims as to all of the land sued for, except as to 48.17 acres thereof, which is within defendant's inclosure and is described in the answer by metes and bounds.

As to this 48.17 acres, the answer pleads title in defendant by limitation of 10 years, and asks for judgment for title and possession.

The trial in the court below without a jury resulted in a judgment in favor of appellee for the land claimed by him, and in favor of the appellant for the remainder of the tract.

The evidence shows that the 48.17 acres in controversy was fenced by appellee in 1897 and has been used and enjoyed by him continuously, under a claim of ownership, ever since it was fenced.

Appellee owns considerable land on the Veatch survey, an adjoining survey north of the Reeves. The fence built by appellee inclosing this land connects with the fence of his son-in-law, Dave Reagan, which incloses appellee's land on the Veatch. From this connection with the Reagan fence, the fence built by appellee in 1897 extends in a southerly direction across the Reeves survey to the Trinity river, which is the eastern boundary of the Reeves and Veatch surveys. This fence, together with the fence of Reagan, the fences of appellee on the Veatch survey and the Trinity river, completely incloses the land in controversy with land owned by appellee on the Veatch, and a few acres owned by Reagan. Since the construction of this fence, appellee has had exclusive possession and control of all the land within the inclosure and has used it for pasturage purposes.

There is a small field which is partly on the Veatch and partly on the Reeves surveys, and which has been in cultivation by appellee for many years.

Mr. W. R. Smith, appellee, testified in part as follows:

"I am 79 years old. I have lived in Anderson county 30 years. * * * The larger part of that land was fenced when I first came here, and cultivated by the man I bought it from, but I fenced all of it with a five-wire fence in 1897, and have been using it every year, every month, since then, and have been claiming it under my own name, and up until a year or two ago when this suit was filed, when these two suits were filed my claim and possession had not been disturbed by any one. * * *

"I have always claimed it as my own. I have used the land every year since it was fenced in 1897. The first few years I used the whole tract as a pasture until about 1907, when I fenced off about 50 acres with hog-proof fence. At that time the hogs were running at large. Some year or two after that the hogs were kept up, and I used a great deal of the old part of it, and the 50 acres. * * *

"The 50 acres was inside the pasture. * * * I held the whole tract down to this wire fence. In 1897 I put this fence here, this lower pasture fence. Prior to that time I used the whole tract as a pasture, all of this here. * * * I fenced it all at the same time, put a five-wire fence around the whole tract, and went to using this as a pasture."

The testimony of W. R. Smith was undisputed. The appellant did not introduce a single witness to disprove the limitations as testified to by the appellee and his witnesses. Mr. Dave Reagan testified, in part:

"That fence has got five wires, sufficient to turn cattle. It is inclosed on three sides. The Trinity river is on the west side and forms a barrier. Since that land was inclosed, it has been used by Mr. Smith, or under his directions. We kept stock in there, me and Mr. Smith, and we had partnership cattle out there, that we kept in the pasture. It has been continuously used, up to the present time since 1897, and the fence has been kept up around it all the time in good shape. * * * Mr. Smith has been claiming it, and using it all the time. I have always known it as the Smith land. * * *

"I have always heard Mr. Smith refer to it as his land. I have never heard any one claiming that land from the time of the fencing of that land, in 1897, up until the institution of this suit, adverse to Mr. Smith. His possession was peaceable; nobody interfering with him. Yes, sir; there is some of the land in cultivation. * * *"

Mr. Joe Smith testified, in part:

"I have been knowing the land for about 30 years. The land involved in this suit has been under fence about 20 years. During that length of time that land has been used by my father and Mr. Dave Reagan. It has been used by my father and by people under his direction. It has been used as a pasture most of the time. There is a cultivated field on it. It has not laid idle at all during that 23 years; it has been continuously and consecutively used each and every year. It has been cultivated for 30 years or more."

Mr. C. L. Smith, another witness, testified in part to practically the same testimony as the other witnesses for appellee, but stated in part as follows:

"I have lived on that river for 30 years. I know this particular land that is involved in this suit. It has been under fence for 23 years. The fence was built there by hired...