Houston Oil Co. of Texas v. Brown

202 S.W. 102, 1917 Tex. App. LEXIS 1244
CourtCourt of Appeals of Texas
DecidedDecember 28, 1917
DocketNo. 281.
StatusPublished
Cited by16 cases

This text of 202 S.W. 102 (Houston Oil Co. of Texas v. Brown) 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
Houston Oil Co. of Texas v. Brown, 202 S.W. 102, 1917 Tex. App. LEXIS 1244 (Tex. Ct. App. 1917).

Opinion

BROOKE, J.

The appellee instituted this action in trespass to try title against the appellant to recover an undivided 160 acres out of the M. L. Abbott 960-acre survey, in Tyler county. Her claim of title was under the 10-years statute of limitations. Appellant pleaded not guilty, and, by way of cross-action, asked for judgment against appellee for all of the Abbott survey. .

On the trial of the case it was agreed that the appellant owned the title to all of the Abbott survey, unless the appellee had acquired title to a part thereof under the 10-years statute of limitations. After refusing to peremptorily instruct the jury to return a verdict in favor of the appellant, the court, over appellant’s objections, submitted the case to the jury on the following issues:

First. Has the plaintiff, Mrs. M. J. Brown, had peaceable and adverse possession of the property in controversy, cultivating, using, and enjoying the same for at least a period of ten years prior to the filing of her suit, as against all parties whomsoever? The jury answered this question, “Xes.”
Second. Is the plaintiff’s (Mrs. M. J. Brown’s) dwelling house, crib, garden, chicken house, and the five acres in field abandoned by her some two years ago, located on the Andrew Dikes survey or on the M. L. Abbott survey? The jury answered, “On the Abbott.”
Third. Was the possession, cultivation, and use, if any, of the land covered by plaintiff’s improvements, if any, sufficient, under all the facts and circumstances in evidence before you, to constitute notice to the defendant that the plaintiff was claiming 160 acres of land out of the M. L. Abbott survey? The jury answered this question, “Xes.”
Fourth. If you have answered the foregoing question “No,” then you will not answer the following question; but if you answer the foregoing question “Xes,” then you will state what 160 acres of land plaintiff’s possession, cultivation, and use, if any, under all the facts and circumstances of this case; gave notice of her claim to the defendant. The jury answered this by stating, “That part of the M. L. Abbott’s survey including Mrs. Brown’s improvements.”

Before the court’s main charge was read to the jury, the appellant duly objected and excepted thereto. The appellant duly requested the court to peremptorily instruct the jury to return a verdict in its favor, and asked other special charges, which charges the court refused. The appellant filed its formal motion to set aside the verdict of the jury and for a new trial. Thereafter, on motion of the plaintiff, the court rendered judgment in her favor for an undivided 160 acres of the Abbott survey, and appointed commissioners to effect a partition thereof. Thereafter the appellant duly filed its amended motion to set aside the verdict and judgment, and for new trial, and to the action of the court in overruling this motion the appellant duly excepted and gave notice of appeal, and thereafter in due time filed its appeal bond superseding the judgment of the trial court.

On the trial of this case the appellee endeavored to show that her improvements were on the M. L. Abbott survey, and that her possession had been of such nature that *103 she had acquired title to an undivided 160 acres including her improvements. The appellant, however, insisted that the improvements of the appellee were not on the Abbott survey, but were on the Andrew Dikes survey, of which the appellee was admittedly the owner; and that, regardless of whether her improvements were on the Abbott or on the Dikes, or on that part of the Abbott covered by the junior Dikes survey, the character of the possession of the appellee was wholly insufficient to entitle her to an undivided 160 acres out of the Abbott.

The appellant contends that the judgment of the trial court should be reversed for the following reasons:

(1) The undisputed facts in this case show that the improvements of the appellee were not on any part of the M. L. Abbott survey, of which the appellant is admittedly the record owner, so that this ease for this reason should be reversed and rendered.
(2) The most that can be said for appellee is that her improvements were on that part of the Dikes survey owned by her conflicting with a part of the M. L. Abbott survey, so that ap-pellee can recover no more of the Abbott survey than that small part of it covered by the Dikes.
(8) Under the undisputed facts, the appellee did not show any title under the 10-years statute of limitations, and this case should be reversed and rendered, because: (a) Appellee’s possession was not adverse, within the meaning of the statute, in that she expressly admitted that she had no claim of right to the land, but went on it purely for the purpose of acquiring 160 acres under the 10-years statute of limitations; (b) appellee sued for and the judgment awarded her an undivided 160 acres out of the entire Abbott survey, while she expressly admitted that she claimed 160 acres out of a definite part of the Abbott survey, her claim not being to an undivided interest in the whole survey, as alleged in her petition; (c) as the United .State Circuit Court at Houston, through its receiver, from March, 1904, until April, 1909, was in possession and control of the Abbott survey, and was vested with the title thereto, the appellant having no title or authority with reference to said property, and as all the parties by said court were enjoined from interfering with its possession, the appellee’s occupancy, which began in August after the court took possession of said property in March, was not sufficient to constitute adverse possession, the property being in custodia legis.
(4) On the trial of the case, over the objections of the appellant, witnesses for the appel-lee were permitted to testify and to give in evidence their opinions and conclusions with reference to the location of the west line of the M. L. Abbott survey, the east line of the A. Dikes survey, and other material lines as well as corners, the locations of which were contested, so that this case should, at least, be reversed and remanded because of the admission of such improper evidence before the jury. ,
(5) The counsel for the appellee made harmful and improper argument to the jury, telling them that, if they located the lines as claimed by appellant, “there may come a time when it will come and move your lines around your land,” which argument alone would require this case to be reversed and remanded.

The first assignment is as follows:

“The court erred in failing and refusing to peremptorily instruct the jury to return a verdict in favor of the defendant, the defendant being the admitted owner of the land, unless plaintiff has acquired title under the ten-years statute of limitations, plaintiff having wholly failed to show any title to the land or any part thereof.”

The propositions under this assignment are:

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

Related

Ivy Hill Ass'n v. Kluckhuhn
472 A.2d 77 (Court of Appeals of Maryland, 1984)
Kluckhuhn v. Ivy Hill Ass'n, Inc.
461 A.2d 16 (Court of Special Appeals of Maryland, 1983)
United States v. MacMillan
331 F. Supp. 435 (D. Nevada, 1971)
Nicholas v. Salisbury Hardware and Furniture Co.
103 S.E.2d 837 (Supreme Court of North Carolina, 1958)
Nichols v. Wheeler
304 S.W.2d 229 (Court of Appeals of Texas, 1957)
Wynn v. Mendoza
287 S.W.2d 217 (Court of Appeals of Texas, 1956)
Delany v. Padgett
193 F.2d 806 (Fifth Circuit, 1952)
Leone Plantation, Inc. v. Roach
187 S.W.2d 674 (Court of Appeals of Texas, 1945)
Rohrig v. Whitney
12 N.W.2d 866 (Supreme Court of Iowa, 1944)
O'Connell v. Chicago Park District
34 N.E.2d 836 (Illinois Supreme Court, 1941)
O'Meara v. Williams
137 S.W.2d 66 (Court of Appeals of Texas, 1940)
United States Fidelity & Guaranty Co. v. First Nat. Bank of El Paso
93 S.W.2d 562 (Court of Appeals of Texas, 1936)
Mandelbaum v. Looney Mercantile Co.
293 S.W. 203 (Court of Appeals of Texas, 1927)
Houston Oil Co. of Texas v. W. R. Pickering Lumber Co.
212 S.W. 802 (Court of Appeals of Texas, 1919)

Cite This Page — Counsel Stack

Bluebook (online)
202 S.W. 102, 1917 Tex. App. LEXIS 1244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/houston-oil-co-of-texas-v-brown-texapp-1917.