Cahill v. Lyda

814 S.W.2d 390, 1991 WL 4891
CourtCourt of Appeals of Texas
DecidedAugust 28, 1991
Docket3-88-236-CV
StatusPublished
Cited by4 cases

This text of 814 S.W.2d 390 (Cahill v. Lyda) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cahill v. Lyda, 814 S.W.2d 390, 1991 WL 4891 (Tex. Ct. App. 1991).

Opinions

ON REMAND

POWERS, Justice.

Marjorie Cahill sued the record owners of a 15.332-acre tract of land to establish in herself a prescriptive title under the ten-year statute. Tex.Rev.Civ.Stat. § 1, art. 5510, at 1554 (1925) [since repealed, now codified as amended as Tex.Civ.Prac. & Rem.Code Ann. § 16.026 (1986 and Supp. 1991) j.1 The trial court concluded she did not establish the elements of her claim, and rendered judgment accordingly. In Cahill’s appeal, she brings two points of error: (1) that she established the necessary elements as a matter of law; and (2) that the trial court’s failure to find the necessary elements was contrary to the great weight and preponderance of the evidence. We will affirm the judgment below.

THE CONTROVERSY

In 1933, L.C. Cahill purchased from M.W. Rutledge a tract of land comprising 177 acres, according to a description set out in Rutledge’s conveyance. An old fence surrounded the tract at the time of the purchase, having been erected at an uncertain time by unknown persons for an unknown purpose. The fence corresponded generally with the metes and bounds description of the 177-acre tract, but on the east side the fence enclosed an additional and adjacent 15.332 acres. No interior fence divided the 177-acre and 15.332-acre tracts, and nothing else on the ground marked a boundary between them.

L.C. Cahill married Marjorie Cahill in 1943. They lived thereafter in a dwelling situated on a five-acre parcel within the 177-acre tract but outside the smaller tract of 15.332 acres. L.C. Cahill died in 1975, and his interest in the 177 acres passed by will to Marjorie. She filed the present suit in 1980, claiming against numerous individuals and their unknown heirs a prescriptive title to the 15.332-acre tract under the ten-year statute.2 We shall, for convenience only, refer to the defendants as the “record owners.”

Trial was before the court without a jury. Only Marjorie adduced evidence. At the conclusion of the evidence, the trial court declined to find that Marjorie had proven any facts from which the trial court could conclude that she had established the elements of her claim under the ten-year statute. She appealed to this Court, contending she had established such elements as a matter of law, and alternatively, that the trial court’s refusal to find the elements of her claim was against the great weight and preponderance of the evidence.

In our first opinion, we sustained Marjorie’s first point of error because, in our view of the evidence she adduced, she had made a prima facie case regarding her claim to a prescriptive title; she was, there[393]*393fore, entitled to judgment as a matter of law when her evidence was not opposed by any contrary evidence and not impeached or contradicted by her own evidence. Because we sustained her first point of error, it was not necessary to decide her second point of error.

On writ of error, the Supreme Court of Texas reversed our judgment, holding that Marjorie’s undisputed evidence did not show an actual and visible appropriation as a matter of law, considering all such evidence. While the court must have considered all the evidence, it referred only to its determination regarding the following matters: (1) the Cahills’ payment of taxes, standing alone, was not sufficient to establish her claim; (2) no case had been found “that establishes whether or when modification [of a fence to make it a ‘designed enclosure’] requires a finding of adverse possession as a matter of law”; and (3) even though the evidence showed the Ca-hills had cleared and sold cedar trees from the land, Marjorie could not verify whether the trees had been taken from the disputed tract, but even if she could, one isolated commercial sale and a “selective clearing” of land for grazing purposes is not sufficient to show adverse possession over a ten-year period as a matter of law. Rhodes v. Cahill, 802 S.W.2d 643 (Tex.1990). While the court referred expressly only to the foregoing, we must assume the court considered the cumulative effect of all Marjorie’s evidence and an orchestration of all the factors shown by that evidence.

In any event, the Supreme Court remanded the cause to us for consideration of Marjorie’s alternative point of error in which she contends the trial-court judgment is against the great weight and preponderance of the evidence. We turn now to that issue.

WHETHER THE TRIAL-COURT JUDGMENT IS AGAINST THE GREAT WEIGHT AND PREPONDERANCE OF THE EVIDENCE

The proper scope of appellate review, concerning Marjorie’s second point of error, is not free of complexity in theory or in practice. We should give our views in the matter.

The trial court declined to find from the evidence the ultimate facts necessary for Marjorie to sustain her claim to a prescriptive title. In other words, the trial court “found” no facts at all; it declined, rather, to find any facts from the evidence adduced. In the practice, nevertheless, Marjorie’s point of error is classified as a “factual insufficiency” point of error.

Marjorie carried the burden of proof. She was obliged to adduce evidence and persuade the trial judge, as the trier of fact in this instance, concerning the ultimate facts necessary to sustain her claim to a prescriptive title under the ten-year statute. She assails on appeal the trial judge’s choice not to infer the necessary ultimate facts from her undisputed evidence. In this situation, her point of error amounts to a contention that the nature and quality of her evidence, in the absence of any contrary or impeaching evidence, in justice compelled the trial court to infer the elements of her cause of action, even though these were not established “as a matter of law.” 4 McDonald, Texas Civil Practice § 18.14, at 318 (rev. ed. 1984).

The issue thus presented to us is one of fact, but a delicate one pertaining to the proper division of power between the trial and appellate court: we must not invade the province of the trial court as the original fact finder, yet we must not abdicate our assigned appellate function and permit a wrong to be accomplished. Id. at 319. “It is drawing a rather fine line to say that the verdict was one which reasonable minds could reach, but at the same time was clearly the product of something other than reason. Yet this is the law since long ago.” Garwood, The Question of Insufficient Evidence on Appeal, 30 Tex.L.Rev. 803, 813 (1962). We are indebted to Judge Garwood for the analysis we now employ.

How may a court of appeals assess whether the trier of fact, the trial judge in [394]*394this instance, reached a decision on the facts that was simultaneously a decision “which reasonable minds could reach” and yet “clearly the product of something other than reason”? While acknowledging its imperfection, Judge Garwood suggested a “subjective approach.” The court of appeals should place itself in the position of the trial-court fact finder, then ask itself whether it would have reached the same decision, from the evidence, as did the actual fact finder in the case. If the answer is “yes,” the trial-court judgment obviously stands. If the answer is “no,” the court of appeals should ask itself whether the actual fact finder’s contrary decision must “have been actuated by prejudice, sympathy or other incorrect motive, ...

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814 S.W.2d 390, 1991 WL 4891, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cahill-v-lyda-texapp-1991.