Ferguson v. Kelly

728 S.W.2d 397, 1987 Tex. App. LEXIS 7281

• Court: Court of Appeals of Texas
• Decided: March 5, 1987
• Docket: 09-86-146 CV
• Status: Published

Opinions

OPINION

DIES, Chief Justice.

This is a lawsuit in the nature of a trespass to try title suit, wherein Curtis Ferguson, as plaintiff below, sued Houston D. Kelly, et ux, and the City of Port Arthur, as defendants below, claiming title to certain realty in Port Acres, Jefferson County, and also contending the existence of an express and implied easement dedicated by a common grantor to plaintiff, the City of Port Arthur, and the public generally.

Trial was to the Court which found title to be in the Kellys, and specifically:

(a) Defendants Kelly and wife have fee simple title to the property in question.

(b) City of Port Arthur has no right, title or claim to a right-of-way or easement with regard to the property in question.

(c) Plaintiff Ferguson has no right, title or claim to ownership of the property in question.

By “property in question” in (a), (b), and (c) above we mean the East 435.6 feet of the South 25 feet of Lot 5 in Block 27 of Port Acres.

The Court’s judgment also decreed plaintiff Ferguson “has no right, title or claim to a right-of-way or easement of any type” to the South 50 feet of Lot 5 in Block 27 of Port Acres. From this judgment, plaintiff has perfected appeal to this Court. The City of Port Arthur has not appealed.

Plaintiff advances four points of error. Two points concern the trial court’s failure to grant plaintiff a summary judgment. The other two contend plaintiff has title and a right-of-way easement.

We first dispose of the two points of error embracing the refusal of the Court to grant plaintiff a summary judgment. When a party moves unsuccessfully for summary judgment and subsequently loses on a conventional trial on the merits, the order overruling the motion is not reviewable on appeal. 4 R. MCDONALD, TEXAS CIVIL PRACTICE IN DISTRICT AND COUNTY COURTS sec. 17.26.13, at 221 (Rev.Vol.1984); Motor 9, Inc. v. World Tire Corp., 651 S.W.2d 296, 299 (Tex.Civ. App. — Amarillo 1983, writ ref'd n.r.e.), citing Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex.1966), and Texas City Hotel Corp. v. Wilkenfeld, 410 S.W.2d 860, 861 (Tex.Civ.App. — Waco 1966, no writ); Southwestern Materials Co. v. George Consolidated, Inc., 476 S.W.2d 454, 455 (Tex.Civ.App. — Houston [14th Dist.] 1972, writ ref’d n.r.e.). These two points of error are overruled.

By date of June 3, 1948, N. Ledet and wife sold “N.L.C. Ferguson and Oma Ferguson, husband and wife, ... Lots Numbered One (1) and Two (2), in Block Number Twenty-eight (28), of Port Acres_” N.L.C. and Oma are the parents of plaintiff. N.L.C. Ferguson, “in settlement of community property belonging to the parties”, on the 25th of February, 1955, conveyed a one-half Q/i) interest in and to this property to Oma, plaintiff’s mother.

L.W. Lloyd on the 4th of October, 1957, quitclaimed to defendant Kelly Lloyd’s right, title and interest in “[t]he South Fifty Feet (S. 50') of Lot Number Five (5), in Block Number Twenty-seven (27), of Port Acres

While appellees unequivocally state: “It must be pointed out that the record title owner of the south twenty-five feet (S. 25') of the fifty foot (50') strip was Oma Ferguson, mother of Appellant”,¹ and appellant does not challenge this statement, nevertheless we have in our Transcript (p. 85) a deed from Oma Ferguson, “a feme sole”, to Curtis Ferguson (plaintiff) covering “Lots Numbered One (1) and Two (2) in Block Number Twenty-eight (28), of Port Acres....”

In point of fact, we have been unable to determine if either party has a record title to the land in controversy. It is axiomatic in Texas law that a plaintiffs right to recover, in a case such as ours, depends on the strength of his own title, not on the weakness of his adversary. The defendant is not required to show title in himself, nor may the plaintiff rely on the defendant’s failure to do so. Although the defendant may have specially pleaded a title which he fails to establish, the plaintiff may not recover unless his own title is affirmatively disclosed. See 56 TEX. JUR.2d Trespass to Try Title sec. 7 (1964), and the many authorities cited therein.

So, while much of appellant’s brief is devoted to the inadequacies of appellees’ proof of adverse possession, the question is whether the trial court’s findings are supported by any proof. 4 R. MCDONALD, TEXAS CIVIL PRACTICE IN DISTRICT AND COUNTY COURTS sec. 16.10(b), at 34 (Rev.Vol.1984); Southern v. Glenn, 677 S.W.2d 576 (Tex.Civ.App. — San Antonio 1984, writ ref’d n.r.e.); Chapa v. Herbster, 653 S.W.2d 594 (Tex.Civ.App. — Tyler 1983, no writ); Jackson v. Henninger, 482 S.W.2d 323, 326 (Tex.Civ.App. — Austin 1972, no writ).

“In a non-jury trial wherein the court has filed findings of fact and a statement of facts has been filed, the court’s findings will be sustained if there is any evidence to support them.”

Jackson v. Henninger, supra.

In Bywaters v. Gannon, 686 S.W.2d 593 (Tex.1985) our Supreme Court stated:

“Also, the question of adverse possession normally is a question of fact, so only in rare instances is a court justified in holding that adverse possession has been established as a matter of law.”

In the case at bar, the trial court heard evidence of fencing, notice, use, taxes paid, construction and granting permission for use of the property by other parties. The authorities we have cited herein make him the trier of the facts, and authorize him to decide title in defendant, and that plaintiff had no easements. All points of error are overruled.

The judgment of the trial court is affirmed.

Affirmed.

1 . Of course she was never made a party to this suit.