PARDEE, Circuit Judge
(after stating the facts as above). The charge of the trial judge clearly gives the law1 of Texas in regard to acquiring title under the 10-year statute of limitation; but the question brought before us is whether the evidence in the case shows such continuous adverse possession by Cammack as warrants a recovery by him under the provisions of the said statute. In Sellman v. Hardin, 58 Tex. 86, it is held that evidence that claimants had paid taxes on the land, and used firewood from it, and kept people from trespassing on it, and had built a hogpen on it, and used it as a ranch for his cattle and horses, but had made no inclosure except the hogpen, nor had he ever lived upon it, nor occupied it by a tenant, was not sufficient to show such adverse possession as would sustain the plea of limitation. Grazing cattle or cutting timber does not show such possession as will support a plea of limitation.
[1] The occupation must be exclusive and continuous. See Richards v. Smith, 67 Tex. 610, 4 S. W. 571; Pendleton v. Snyder, 5 Civ. App. 427, 24 S. W. 363. In Bracken v. Jones, 63 Tex. 184, it was held that where the claimant fenced and cultivated 4 acres on adjoining land in connection with his own premises from 1859 down to March 15, 1882, about 23 years, it did not establish such possession as would give him title to more than he had enclosed. In that case the court said:
“Possession, to be of any value to vest a right or bar a remedy, must be actual, continued, visible, notorious, distinct, and hostile. It must be fair and open as ‘the statute was not made to serve the purpose of artifice and trick.’ Sailor v. Hertzogg, 2 Pa. 185, quoted in Word v. Drouthett, 44 Tex. 370; Satterwhite v. Rosser, 61 Tex. 166. It can scarcely be said that in such a case as the present the possession is notorious, visible, and distinct, so as to fulfil the requirements of the 10-year section of the statute of limitation. Whilst the true owner is chargeable, with a knowledge of the boundaries of his land, he can hardly be affected with notice that a neighbor, who has encroached a few- feet upon his tract, is doing so for the purpose of acquiring title to 640 acres of it. He would rather impute it to a mistake on the part of the apparent trespasser as to the division 'line between them. Whilst this might not excuse the party trespassed upon for not asserting his right to the land actually occupied by the trespasser, it would certainly save him from such consequences as the loss of a section of his land. The party encroaching would be entitled to no more than the land actually occupied by him. The case is different when one settles upon the land of another, claiming under a recorded deed, and having his improvements located within the bounds called for in such deed. Then the true owner has notice of the extent of the claim of his adversary, and that the improvements are upon it as well as upon his own land, and that, if continued for the requisite period of time, they will give title to the extent of the land described in the recorded instrument. He knows the consequences of such possession, and must provide against them. Brownson v. Scanlan, 59 Tex. 222. But suppose such a possessor should, by accident or otherwise, have a small portion of his improvements [75]*75beyond the Tine of his boundaries, as claimed in the deed. Is ho to get to the limits of his deed by 5 years’ possession, and 640-acres besides by reason of his slight extension of improvements beyond his line? If so, he would recover far beyond what a 10 years’ possession, under the law we are considering, would give him. The extent of a recovery in such case, over and above the 6-10 acres, is the amount actually covered by the inclosure of the trespasser. Charle v. Saffold, supra [13 Tex. 94]. In the case of Mooring v. Campbell, 47 Tex. 41, this court considered that the state of ease most prominent in the minds of the legislators in enacting the foregoing provisions of our statute of limitations was the case where one person is in adverse possession with all of his improvements on a large tract of land belonging to another. ‘Any flexibility,’ it was said, ‘in adapting the statute to a state of facts variant from this must be arrived at by construction.’ And Chief Justice Koberts, after alluding to the strange, if not unreasonable, consequences of allowing one person to acquire 640 acres of land from his neighbor by merely a strip of adjoining land in a field belonging to the former, says that we must confine ‘the construction of the statute to the particular facts of each case.’ ” Bracken v. Jones, 63 Tex. 184 et seq.
Titel v. Garland, 99 Tex. 201, 87 S. W. 1152, Holland v. Nance, 102 Tex. 183, 114 S. W. 346, and Bender v. Brooks, 103 Tex. 335, 127 S. W. 168, all Supreme Court decisions, cite Bracken v. Jones with approval.
In Bender v. Brooks, the court, after citing Bracken v. Jones, said:
“In the case now before us, as in the case just quoted, the house and all improvements, except a portion of the fencing, was upon another tract of land. The use of the field was incidental to the use of the house, and the possession of the field in its entirety could be referred only to the possession of the house and the other land inclosed within the field. The inclosure gave not the slightest intimation to the true owner that the person who was residing upon the 30 acres of the adjoining tract was setting up claim to the entire survey of 663 acres. The evidence does not tend to prove a possession adverse to the owner of the Dunman survey. We therefore hold that the evidence submitted with this certificate did not justify the court in submitting the issue of limitation to the jury.” 103 Tex. 335, 127 S. W. 168,
In Smith v. Jones et al., 103 Tex. 632, 132 S. W. 469, the Supreme Court of Texas, after distinguishing Bracken v. Jones and Holland v. Nance, supra, as to facts involved, held:
“A tenant of a tract made a survey of adjacent land and located thereon a dwelling house and other buildings incident to a home, for which purpose the land was afterwards held and used for more than 10 years. Held, that the court could not rule, as a matter of law, that the possession was too deceptive in its appearance to support the defense of limitations.”
In Stevens v. Pedregon, 173 S. W. 210, the Supreme Court of Texas, after quoting from Sellman v. Hardin, supra, held as follows:
“At no time from the first entry upon the land to the institution of this suit does defendant in error claim to have actually resided upon the land, nor to have had the land or any part of it inclosed; nor does he claim that at any time he had a tenant upon it for a length of time sufficient to constitute limitation under any provision of the law or any decision of this court. Such possession as he claims to have had consisted of cultivating a small portion of the land, one year at one place and the next year at another. Some years there was no cultivation of any part of the land for the want of water. There was nothing in his acts that would indicate a claim of ownership of the land. All that defendant in error did in the use of the land might well have been regarded as harmless trespass. Schleicher et al. v. Gatlin, 85 Tex. 270, 20 S. W. 120.”
[76]*76As to adverse possession and directing verdict, see Bundick v. Moore-Cortes Canal Co. (Tex. Civ. App.) 177 S. W. 1031 — 1035, and Texas & N. O. R. Co. v. Williams (Tex. Civ. App.) 178 S. W. 701.
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PARDEE, Circuit Judge
(after stating the facts as above). The charge of the trial judge clearly gives the law1 of Texas in regard to acquiring title under the 10-year statute of limitation; but the question brought before us is whether the evidence in the case shows such continuous adverse possession by Cammack as warrants a recovery by him under the provisions of the said statute. In Sellman v. Hardin, 58 Tex. 86, it is held that evidence that claimants had paid taxes on the land, and used firewood from it, and kept people from trespassing on it, and had built a hogpen on it, and used it as a ranch for his cattle and horses, but had made no inclosure except the hogpen, nor had he ever lived upon it, nor occupied it by a tenant, was not sufficient to show such adverse possession as would sustain the plea of limitation. Grazing cattle or cutting timber does not show such possession as will support a plea of limitation.
[1] The occupation must be exclusive and continuous. See Richards v. Smith, 67 Tex. 610, 4 S. W. 571; Pendleton v. Snyder, 5 Civ. App. 427, 24 S. W. 363. In Bracken v. Jones, 63 Tex. 184, it was held that where the claimant fenced and cultivated 4 acres on adjoining land in connection with his own premises from 1859 down to March 15, 1882, about 23 years, it did not establish such possession as would give him title to more than he had enclosed. In that case the court said:
“Possession, to be of any value to vest a right or bar a remedy, must be actual, continued, visible, notorious, distinct, and hostile. It must be fair and open as ‘the statute was not made to serve the purpose of artifice and trick.’ Sailor v. Hertzogg, 2 Pa. 185, quoted in Word v. Drouthett, 44 Tex. 370; Satterwhite v. Rosser, 61 Tex. 166. It can scarcely be said that in such a case as the present the possession is notorious, visible, and distinct, so as to fulfil the requirements of the 10-year section of the statute of limitation. Whilst the true owner is chargeable, with a knowledge of the boundaries of his land, he can hardly be affected with notice that a neighbor, who has encroached a few- feet upon his tract, is doing so for the purpose of acquiring title to 640 acres of it. He would rather impute it to a mistake on the part of the apparent trespasser as to the division 'line between them. Whilst this might not excuse the party trespassed upon for not asserting his right to the land actually occupied by the trespasser, it would certainly save him from such consequences as the loss of a section of his land. The party encroaching would be entitled to no more than the land actually occupied by him. The case is different when one settles upon the land of another, claiming under a recorded deed, and having his improvements located within the bounds called for in such deed. Then the true owner has notice of the extent of the claim of his adversary, and that the improvements are upon it as well as upon his own land, and that, if continued for the requisite period of time, they will give title to the extent of the land described in the recorded instrument. He knows the consequences of such possession, and must provide against them. Brownson v. Scanlan, 59 Tex. 222. But suppose such a possessor should, by accident or otherwise, have a small portion of his improvements [75]*75beyond the Tine of his boundaries, as claimed in the deed. Is ho to get to the limits of his deed by 5 years’ possession, and 640-acres besides by reason of his slight extension of improvements beyond his line? If so, he would recover far beyond what a 10 years’ possession, under the law we are considering, would give him. The extent of a recovery in such case, over and above the 6-10 acres, is the amount actually covered by the inclosure of the trespasser. Charle v. Saffold, supra [13 Tex. 94]. In the case of Mooring v. Campbell, 47 Tex. 41, this court considered that the state of ease most prominent in the minds of the legislators in enacting the foregoing provisions of our statute of limitations was the case where one person is in adverse possession with all of his improvements on a large tract of land belonging to another. ‘Any flexibility,’ it was said, ‘in adapting the statute to a state of facts variant from this must be arrived at by construction.’ And Chief Justice Koberts, after alluding to the strange, if not unreasonable, consequences of allowing one person to acquire 640 acres of land from his neighbor by merely a strip of adjoining land in a field belonging to the former, says that we must confine ‘the construction of the statute to the particular facts of each case.’ ” Bracken v. Jones, 63 Tex. 184 et seq.
Titel v. Garland, 99 Tex. 201, 87 S. W. 1152, Holland v. Nance, 102 Tex. 183, 114 S. W. 346, and Bender v. Brooks, 103 Tex. 335, 127 S. W. 168, all Supreme Court decisions, cite Bracken v. Jones with approval.
In Bender v. Brooks, the court, after citing Bracken v. Jones, said:
“In the case now before us, as in the case just quoted, the house and all improvements, except a portion of the fencing, was upon another tract of land. The use of the field was incidental to the use of the house, and the possession of the field in its entirety could be referred only to the possession of the house and the other land inclosed within the field. The inclosure gave not the slightest intimation to the true owner that the person who was residing upon the 30 acres of the adjoining tract was setting up claim to the entire survey of 663 acres. The evidence does not tend to prove a possession adverse to the owner of the Dunman survey. We therefore hold that the evidence submitted with this certificate did not justify the court in submitting the issue of limitation to the jury.” 103 Tex. 335, 127 S. W. 168,
In Smith v. Jones et al., 103 Tex. 632, 132 S. W. 469, the Supreme Court of Texas, after distinguishing Bracken v. Jones and Holland v. Nance, supra, as to facts involved, held:
“A tenant of a tract made a survey of adjacent land and located thereon a dwelling house and other buildings incident to a home, for which purpose the land was afterwards held and used for more than 10 years. Held, that the court could not rule, as a matter of law, that the possession was too deceptive in its appearance to support the defense of limitations.”
In Stevens v. Pedregon, 173 S. W. 210, the Supreme Court of Texas, after quoting from Sellman v. Hardin, supra, held as follows:
“At no time from the first entry upon the land to the institution of this suit does defendant in error claim to have actually resided upon the land, nor to have had the land or any part of it inclosed; nor does he claim that at any time he had a tenant upon it for a length of time sufficient to constitute limitation under any provision of the law or any decision of this court. Such possession as he claims to have had consisted of cultivating a small portion of the land, one year at one place and the next year at another. Some years there was no cultivation of any part of the land for the want of water. There was nothing in his acts that would indicate a claim of ownership of the land. All that defendant in error did in the use of the land might well have been regarded as harmless trespass. Schleicher et al. v. Gatlin, 85 Tex. 270, 20 S. W. 120.”
[76]*76As to adverse possession and directing verdict, see Bundick v. Moore-Cortes Canal Co. (Tex. Civ. App.) 177 S. W. 1031 — 1035, and Texas & N. O. R. Co. v. Williams (Tex. Civ. App.) 178 S. W. 701.
Many other Texas decisions of the Supreme Court and the Courts, of Civil Appeals, considering the question of the adverse possession necessary to support a title to land under the Texas statutes of limitation, can be shown, but it would serve no useful purpose. The most, if not all, are applications of the statutes to the particular facts as presented in each case.
[2] Cammack’s evidence (copied in full above) shows his entire case and claims in the trial court, and may be summarized as follows: He bought 160 acres of the Cammack survey July 9, 1902, and on this land his house and appurtenances were then and subsequently built. Prior to this purchase there had been an encroachment over the unlocated boundary line between the Cammack survey and section 1 of from one to two acres, cultivated and upon which had been erected a four-post wagon shed, with a roof, but uninclosed sides; but this encroachment had been abandoned — at least, Cammack in this case takes nothing from it. Cammack moved onto his purchase in the fall of 1902, but did not take possession until 1903, in which year he cultivated his own land and about an acre and a half to two acres on section 1 adjoining on the west, practically the same land as the former encroachment; but he did not live there continuously. In the fall of 1903 he moved into Colmezneil, about six miles distant, and there lived in a rent house, but moved back to the Cammack survey in September, 1904. He moved again in February, 1907, to a place about a mile south of his house on the Cammack survey, moving back in 1911. No one lived in his house while he was away. During all the time, however, he cultivated his own land and the encroachment, except during 1910 he had no portion of tire encroachment in cultivation, except he planted about an eighth of an acre in fruit trees (12 to 15) in extending an orchard on the Cammack survey, and during the year tended fruit trees and used the wagon shed for storing tools. During 1910 and at other times' he pastured hogs on section 1, and at times not given he had pastured hogs and cut posts and wood and pickets on section 1. Cammack’s claims of 160 acres from section 1 were mental, save as shqwn by the foregoing facts.
On this state of facts, in the light of the decisions of the Texas courts hereinabove given, we conclude that the evidence, taken most favorably to the defendant in error, shows a mere encroachment, and no such continuous adverse possession by Cammack as to give the owner of the unoccupied section 1 notice that he was claiming adversely any part of said section, or to authorize a recovery by him of 160 acres of land from said section under the provisions of the Texas statute of 10 years’ limitation as against the owner of the record or paper title. In our opinion, the trial judge erred in refusing to direct a verdict for tire plaintiff in error.
The judgment of the District Court should be reversed, and the cause remanded, with instructions to grant a new trial; and it is so ordered and adjudged.