Butler v. Hanson

455 S.W.2d 942, 13 Tex. Sup. Ct. J. 380, 1970 Tex. LEXIS 230
CourtTexas Supreme Court
DecidedJune 10, 1970
DocketB-1233
StatusPublished
Cited by126 cases

This text of 455 S.W.2d 942 (Butler v. Hanson) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Butler v. Hanson, 455 S.W.2d 942, 13 Tex. Sup. Ct. J. 380, 1970 Tex. LEXIS 230 (Tex. 1970).

Opinions

GREENHILL, Justice.

The application for writ of error was granted in this case dealing with adverse possession of grazing land to determine if there was evidence to support the findings of the jury, and to review the treatment by the Court of Civil Appeals of a former opinion by this Court, the Orsborn case, [Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781] dealing with “casual fences.”

The suit was brought by Butler in trespass to try title to 157.22 acres of surface estate in Glasscock County. A portion of the land purchased by Butler had been occupied by the defendant Hanson and his predecessors for over 30 years and used by them for grazing purposes. This portion of the land had been enclosed with over approximately 1,000 acres of Hanson lands as a part of the Hanson ranch; and this portion of the ranch, including the land in controversy, had been surrounded by a substantial fence.

The jury answered the adverse possession issues favorably to Hanson. Judgment was rendered that the plaintiff Butler take nothing. The Court of Civil Appeals sitting at El Paso affirmed. 432 S.W.2d 559.

After a careful review of the evidence and the authorities, we are of the opinion that the case has, in substance, been properly decided by the Court of Civil Appeals; and accordingly, we affirm its holdings on the major points at issue. Because of an erroneous and apparently inadvertent inclusion in the judgment of the trial court of a small portion of Butler’s land lying outside of Hanson’s fence, the judgments below are reversed, and the cause is remanded to the trial court with instructions to correct its judgment.

The land in this area of Western Texas was laid off in sections a mile square which were supposed to contain 640 acres each. The Hansons owned, among other lands, Section 46. Immediately to the south of Section 46 is Section 3, the surface of which was purchased by Butler in 1963 from some people named Nunn. The problem was the boundary line between Sections 46 and 3. The Hansons, according to the testimony, were of the opinion that Section 46 extended to the south to the “Hanson fence.” A survey map prepared for Butler shortly before he purchased the land shows that the fence is on Section 3; and this encroachment on Section 3 is the subject of this litigation. The survey map prepared for Butler is set out in the dissent hereto and in the opinion of the Court of Civil Appeals at page 561 of 432 S.W.2d. Appended to this opinion is a crude drawing made at the trial by Bud Hanson. It sets out his rough understanding of the boundaries of the sections, and his fences are indicated with X marks in the boundaries.

[944]*944The jury found that Hanson, or those under whom Hanson deraigned title or possession, had had adverse possession of the land in controversy, using the same, for a period of ten years or longer, prior to December 28, 1962; that the land had been kept enclosed during such period by a substantial fence, capable of turning livestock; that the fence was maintained for the purpose of establishing and maintaining exclusive possession and control of the land in controversy under a claim of right.

As above noted, the jury was asked about ten or more years of adverse possession prior to December 28, 1962. On that date, Hanson signed an affidavit for Butler in which Hanson said that a part of Section 3 (purchased by Butler a month later) might be within his fence, that he owned no part of Section 3 and claimed no interest therein. The jury found that on that date, December 28, 1962, Hanson was not making a claim of right to that part of Section 3 within his fence. It also found that Hanson did not conceal from Butler his claim of right to that part of Section 3 within his fence, and that Butler had the means of readily ascertaining Hanson’s claim of right. The effect of this affidavit will be discussed later herein.

The main attack on the jury findings of Hanson’s adverse possession is that there is no evidence to support the findings. In such a situation, it is our duty to view the evidence in its most favorable light, considering only the evidence and inferences which support the findings, and rejecting the evidence and inferences which are contrary to the findings. Cartwright v. Canode, 106 Tex. 502, 171 S.W.2d 696 (1914); Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950); Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508 (1947); Robertson v. Robertson, 159 Tex. 567, 323 S.W.2d 938 (1959); and Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas Law Review 361 (1960).

Much of the evidence supporting the jury’s verdict of adverse possession is set out in the opinion of the Court of Civil Appeals. We here supplement those facts by referring specifically to some of the testimony.

Bud Hanson, who was 60 at the time of trial, had been familiar with the land all his life. He remembered the fence in question as being where it was since 1914. In 1932, Bud’s father had leased 11½ sections, including the Section 46 in question to a tenant, Clyde Berry, who testified at the trial. As will be noted below, Berry maintained the fences, including the one in question. Bud had lived on the land with his mother and father in 1934 and 1935. He testified that in the early ‘30’s, in 1934, “We put a net fence around the whole ranch. We’ were my dad and me and 2 or 3 men, my brothers-in-law.” The net fence was added to the three-strand barbed wire because “I wanted to put up a better fence to hold sheep.”

Hanson testified he “heired” Section 46 in 1958 and got a deed to Sections 46 and 2 from his family in 1949. In the period between 1949 and 1952, he rebuilt the fences, put a new fence post between each of the old posts and had continuously maintained them. The land inside the fences was continuously used for grazing; that there never had been a time since 1932 that he had quit using what he called his “Section 46”; i. e., the land down to the fence in question.

Hanson repeatedly testified that he regarded this south fence to be his south line, the line between Sections 46 and 3. He intended to include it within his fence and use it. He said he didn’t own Section 3 and did not claim it but, “I’m going to claim what is in my fence.”

“Q: You are going to do that [claim it] even if it is in Section 3 ?
“A: Sure, it’s been there for 60 years.
“That fence has been there all my life, ever since I was 10 years old. I suppose— I supposed it was my property. * * * I claim all of 46, you bet’che.”
[945]*945Q; * * * Insofar as this tract of land is concerned that you call 46, what do you claim * * * ?”
“A: I claim all that is inside my fence. * * * I run stock on it and maintained the fences, and I figured it was mine. * * * ”

When he repaired his south fence he knew what section he was in; “I knew it was mine, yes.”

“Q: Did you know whether any part of it might include a part of Sec. 3?
“A: No sir.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jay Parker and Lindsey Parker v. Glenn Weber
Court of Appeals of Texas, 2018
Memorial Park Medical Center, Inc. v. River Bend Development Group, L.P.
264 S.W.3d 810 (Court of Appeals of Texas, 2008)
Perkins v. McGehee
133 S.W.3d 287 (Court of Appeals of Texas, 2004)
Mohnke v. Greenwood
915 S.W.2d 585 (Court of Appeals of Texas, 1996)
Smallwood v. Jones
794 S.W.2d 114 (Court of Appeals of Texas, 1990)
Fish v. Bannister
759 S.W.2d 714 (Court of Appeals of Texas, 1988)
Boyle v. Burk
749 S.W.2d 264 (Court of Appeals of Texas, 1988)
Grynberg v. Christiansen
727 S.W.2d 665 (Court of Appeals of Texas, 1987)
Exxon Corp. v. Pollman
712 S.W.2d 230 (Court of Appeals of Texas, 1986)
Gulf & Basco Co. v. Buchanan
707 S.W.2d 655 (Court of Appeals of Texas, 1986)
Norsul Oil & Mining Ltd. v. Commercial Equipment Leasing Co.
703 S.W.2d 345 (Court of Appeals of Texas, 1985)
Pfeffer v. Southern Texas Laborers' Pension Trust Fund
679 S.W.2d 691 (Court of Appeals of Texas, 1984)
Carroll Instrument Co. v. B.W.B. Controls, Inc.
677 S.W.2d 654 (Court of Appeals of Texas, 1984)
Apache Ready Mix Co., Inc. v. Creed
653 S.W.2d 79 (Court of Appeals of Texas, 1983)
Shwiff v. Priest
650 S.W.2d 894 (Court of Appeals of Texas, 1983)
Verette v. Travelers Indemnity Co.
645 S.W.2d 562 (Court of Appeals of Texas, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
455 S.W.2d 942, 13 Tex. Sup. Ct. J. 380, 1970 Tex. LEXIS 230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butler-v-hanson-tex-1970.