Orsborn v. Deep Rock Oil Corp.

267 S.W.2d 781, 153 Tex. 281, 1954 Tex. LEXIS 478

• Court: Texas Supreme Court
• Decided: March 31, 1954
• Docket: A-4335
• Status: Published

Opinions

Mr. Justice Smedley

delivered the opinion of the Court.

Petitioner Tom Orsborn sued C. B. Long and respondents Deep Rock Oil Corporation and others for the title and possession of a tract of land containing 56.85 acres in the J. G. Eustis Survey-No. 2 in King County, alleging title by adverse possession under the ten years statute of limitations. C. B. Long, the record owner of the surface and an undivided 2/35 interest in the minerals, filed disclaimer. Respondents, being all of the defendants other than C- B. Long, and being the owners of the record title to the land in controversy except the interests in which Long owned the record title, answered by pleas of not guilty. After trial by the court without a jury, judgment for title and possession was rendered for petitioner against all of the defendants. The Court of Civil Appeals reversed the trial court’s judgment and rendered judgment that petitioner take nothing by his suit against respondents. 259 S.W. 2d 625.

The trial court made elaborate findings of fact, some of which seem rather to be conclusions of law, finding in petitioner’s favor all of the elements essential to establish title by adverse possession under the ten years statute of limitations, Article 5510, Revised Civil Statutes of 1925, as the same are prescribed by that article and defined in Articles 5514 and 5515.

The Court of Civil Appeals reached the conclusion that according to the undisputed facts in evidence petitioner failed to prove essential elements for the acquisition of title by adverse possession. More particularly, the Court of Civil Appeals decided that the possession of the disputed tract of land by petitioner and his father, who had acquired title to near-by land under recorded deeds, was not possession of such character as of itself gave notice of an adverse, hostile possession that would mature into title at the expiration of the statutory period, in this, that the disputed tract was casually enclosed together with the land owned by petitioner and his father and a tract of land owned by the State, all enclosed by a fence not constructed by petitioner or by his father, and that their cattle only incidentally and occasionally grazed off of the land which they owned onto the disputed tract of land.

After a careful examination of the entire statement of facts we have reached the same ultimate conclusion as that reached by the Court of Civil Appeals. Looking to all of the evidence and accepting as true all of the evidence offered by petitioner, including petitioner’s testimony, we find that there is wanting evidence of probative value tending to prove that petitioner and his father or either of them had adverse possession of the disputed tract as defined in Article 5515, that is, “actual and visible appropriation of the land commenced and continued under a claim of right inconsistent with and hostile to the claim of another.” The case presents a question or questions of law. There are no conflicts in the evidence as to any material facts. The statement of facts indeed consists almost wholly of evidence offered by petitioner. Respondents' offered no evidence except documentary evidence, testimony as to the topography and quality of the land and portions of petitioner’s deposition. In order to make plain the basis of the conclusion expressed, it is necessary to make a statement of the substance of the material facts.

In October, 1919, J. T. Orsborn, petitioner’s father, acquired by deed from E. C. Couch and W. A. Smith the David Davis Survey, or two tracts of land of that survey, a total of 160 acres, and also the E. M. Ellis Survey, containing 150.5 acres, and lying, immediately southwest of the Davis Survey. In December, 1919, J. T. Orsborn acquired by deed from J. A. Wade four tracts of land, a total of 370 acres, of Section 80, H. & T.C. Ry. Co., which adjoins the Davis Survey on the northeast. In November, 1921, J. T. Orsborn acquired by deed from M. T. Holland a tract of land containing 120 acres out of Section 80, H.&T-C. Ry. Co. Each of the deeds described the tracts conveyed by metes and bounds, with references to survey lines and corners, the Brazos River and artificial objects; but the deed contained no reference to a fence or fences. Two of the deed were filed for record on January 30, 1920, and the third deed on December 7, 1921.

Petitioner testified that when his father bought the land in the Ellis and Davis Surveys and in Section 80 there was an existing fence forming an enclosure which is now shown to embrace an area of about 747.58 acres, and that the enclosing fence or fences were then about where they are now; that sometimes parts of the fence were washed out, but that they would be replaced “as soon as we could get to them.” The fence forming the enclosure was not built by petitioner’s father nor by petitioner, but petitioner testified that it has been maintained in fair repair.

The area of 747.58 acres enclosed by the fence extends northeast and southwest along or near the Brazos River. Its length northeast and southwest is about 4,560 varas, or 2.4 miles. In its northeast part the enclosed area is about 1,350 varas wide, and in its southwest part at about the middle of the disputed tract the width of the enclosed area is about 585 varas. The land that petitioner’s father acquired by deeds is the northeast part, 630.73 acres, of the enclosed 747.58 acres- Immediately southwest of that land is a 60-acre tract owned by the State, and immediately southwest of the State tract and at the southwest end of the enclosed area is the 56 85 acre tract in controversy.

The disputed 56.85 acre tract has not been fenced separately from the other land within the enclosure of 747.58 acres. There is no fence along the northeast line of the disputed tract and the fence on its northwest line is wholly, or almost wholly, on Survey 89, H.&T.C. Ry. Co., to its northwest. The record does not show when, by whom, or for what purpose the fences forming the 747.58 acre enclosure were built-

A witness for petitioner testified that he knew the land within the enclosure as early as 1912 or 1913, and that at that time it was fenced in several tracts and owned by different persons.

There are some differences in the testimony as to the quality of the land in the disputed tract, but there seems to be agreement that the north part of the tract is hilly, with but little grass on it, that much of the land within the tract and near the river is grown up wih salt cedars, and that toward the east and northeast part of the tract there is grass of average quality. It is further shown by the record that the best land for grazing is in the north and northeast parts of the 747.58 acre enclosure. Petitioner testified that there is and was little grass on the west part of the tract in controversy.

Soon after petitioner’s father acquired the land in the Davis and Ellis Surveys and in Section 80, H. & T.C. Ry. Co., he began to use the land within the enclosure for grazing cattle, and so used it continuously until he died in 1933. Thereafter petitioner used the land continuously in the same way' until about the time this suit was filed. Some small tracts in Section 80 have been farmed but there has never been any cultivation of the disputed tract of land, and no improvements have ever been placed on it except “fix the fence.” There are and have been windmills and watering places on the part of Section 80, H.&T.C. Ry. Co., and on the Davis Survey that petitioner’s father acquired by deeds, but there have been no windmills or watering places on the disputed tract. The nearest watering place is about a mile from the disputed tract.

Asked about the number of cattle that he and his father grazed on the 747.58 acres enclosed, petitioner testified that they usually tried to keep “around thirty cattle or something like that.” He testified that cattle were scattered all over the enclosure, and when questioned particularly whether he could say definitely “at any given year there were cows on that disputed tract at any certain time,” he answered: “I couldn’t give any certain months, but I could say that I have seen them there every year; almost every time you went over there you could see them.”

Petitioner testified that his father regularly paid his taxes on his land, but that neither he nor his father ever rendered any part of the J. G. Eustis Survey No. 2 (the survey in which the disputed tract lies) for taxes and that they paid no taxes on it. Respondent offered in evidence the rendition made by petitioner for taxes for the year 1952, in which are included the Davis Survey and the Ellis Survey but no part of the J. G- Eustis Survey No. 2, and in which is the affidavit of petitioner that the rendition is a full and complete list of all taxable property owned or held by him in the county. Petitioner’s explanation of the failure on his part and on the part of his father to render for taxation or to pay taxes on the disputed tract is that they did not know “this Eustis Survey was in there until I hired this surveyor * * * in the spring of 1951.” Respondents introduced in evidence tax receipts showing payment of the taxes on the J. G. Eustis Survey No. 2 by the record owners for several years, including the years from 1931 to 1937 inclusive.

Petitioner testified that when his father bought the land he got a deed to it. And he testified that his father bought “that land over there that was under fence, he was claiming that.” Interrogated closely about his statement that his father bought all the land under fence, he answered: “He bought the acreage and you would naturally buy all that was under fence, you would expect to buy all of it.” He testified further that he was not present when his father “bought those tracts of land.” Petitioner testified several times that his father claimed the land “that he bought,” and that he and his father always claimed all the land within the enclosure and claimed the disputed tract, but he did not testify to any assertion of such a claim or to any facts evidencing it, or offer any evidence tending to prove such a claim, unless the existence and maintenance of the fence and the grazing of the land within the enclosure may be taken as evidence of claim.

In about the year 1949 petitioner, his mother and his sisters executed an oil and gas lease on the Ellis Survey, the Davis Survey, and on their tracts of land in Section 80, H &T.C. Ry. Co., and also on a 187-acre tract south of the river. The lease covered no part of the J. G. Eustis Survey No. 2, and they thought the lease included all the land that they owned. Petitioner testified that his father during his lifetime borrowed money and gave liens on land as security, but that he never knew of any instance where he executed any instrument that included any part of the J. G. Eustis Survey No. 2.

It is settled that limitation title cannot be acquired by grazing unenclosed land. Fuentes v. McDonald, 85 Texas 132, 20 S.W. 43; Vineyard v. Brundrett, 17 Texas Civ. App., 147, 42 S.W. 232, application for writ of error refused; Allison v. Groppenbacher, 142 S.W. 2d 528, application for writ of error refused. And it is of course true that title cannot be acquired merely by fencing land without grazing it or farming it or putting it to other use. When the use relied upon to support the statute is grazing, there must be also at the same time sufficient enclosure, such as to give evidence that the land was designedly enclosed and to show the assertion of claim hostile to the true owner. Vineyard v. Brundrett, 42 S.W. 232, 235. The ordinary case for the acquisition of title by adverse possession, when the use is grazing, is one in which the person claiming title under the statute has built a fence or fences enclosing the land and has maintained the enclosure and continuously used the land for grazing during the statutory period. Such construction of fences and use of the land for grazing afford evidence of hostile claim. Petitioner would bring this case within that general rule.

We agree, however, with the decision of the Court of Civil Appeals that the facts of this case take it out of that general rule and bring it under the principle announced and applied in the following cases, that when the disputed tract of land has been casually or incidentally enclosed with other land, especially when, as here, such other land is held by the possessor under deed, the incidental enclosure and the occasional grazing of the disputed tract by cattle straying from the titled land will not amount to such adverse and hostile possession and use as will support the statute of limitations. Harmon v. Overton Refining Company, 130 Texas 365, 109 S.W. 2d 457, 110 S.W. 2d 555; West Production Company v. Kahanek, 132 Texas 153, 121 S.W. 2d 328; McKee v. Stewart, 139 Texas 260, 162 S.W. 2d 948; Primitive Baptist Church v. Fla-Tex Corp., 158 S.W. 2d 549.

Discussion of the facts in those cases and comparison of their facts with those of the case before us would prolong the opinion unduly. Quotations from two of the cases, with brief' comment about the rule of them, should be sufficient to show that they support the conclusion we have expressed.

The opinion in Harmon v. Overton Refining Company, 130 Texas 365, 372, 109 S.W. 2d 457, 110 S.W. 2d 555, contains the following:

“It is well settled that when one enters into possession of land under a deed his possession is referable to the deed, and is presumed to be in conformity with it, and is confined to the limits thereof. Therefore, in order for a vendee to acquire title by adverse possession of additional or adjoining land outside the limits of the boundaries in his conveyance, he must have actual possession of such additional land of such character as of itself will give notice of an exclusive adverse possession and mature into title after the statutory period. * * *

“In this instance there was not such possession. Cohagen went into possession under his deed and every act of visible appropriation and ownership was upon the 9.29 acres, and was referable to his deed. The tract in controversy was not fenced or visibly occupied, and the only use made of same was an occasional grazing of cattle which strayed thereon while grazing upon the 9.29 acres.”

The following is from the opinion in West Production Company v. Kahanek, 132 Texas 153, 158, 121 S.W. 2d 328:

“The use of such newly inclosed land by the defendant in error for grazing cattle did not, of itself, constitute an actual and visible appropriation as provided in Article 5515. Fuentes v. McDonald, 85 Texas 132; Mhoon v. Cain, 77 Texas 316. Where the character of use of inclosed land, by a claimant of adverse possession, is not such as to constitute, of itself, an actual and visible appropriation of the land, it may be safely said that such use cannot be aided by a fence which casually created the inclosure, and to the construction of which fence neither the claimant of adverse possession nor any person under whom he claims has contributed. See Vineyard v. Brundrett, 42 S.W. 232. (Writ ref.) Our limitation statutes do not contemplate that a claimant of adverse possession can derive aid, in establishing his claim, from an inclosure casually created by third persons in effecting a different purpose of their own, and who are strangers to both the claimant of adverse possession and the true owner of the inclosed land. In such a case, the inclosure, so far as our limitation statutes are concerned, has no more effect than if same had never come into existence.”

The two decisions from which the foregoing- quotations are taken were cited with approval and followed in McKee v. Stewart, 139 Texas 260, 162 S.W. 2d 948. In that case possession of part of the tract in controversy was permissive, but that was not true of the small area west of the creek, which was included in the enclosure casually or as a matter of convenience in the extension of the possessor’s fences.

The undisputed facts in the instant case show that petitioner’s father entered into possession of the land within the enclosed 747-58 acres under three deeds duly recorded that conveyed to him several tracts of land constituting the northeast part of that area. According to the authorities above quoted and many other authorities his possession (and petitioner’s possession which has been the same as that of his father) is referable to the deeds, is presumed to be in conformity with them, and is confined to the limits of them; and in order for him to have acquired title by adverse possession of additional or adjoining land outside the limits of the boundaries of the deeds he must have had actual possession of the additional land of such character as of itself to give notice of an exclusive, adverse possession.

The disputed tract is in the extreme southwest end of the enclosed area. Between the land which petitioner’s father acquired by deeds and the disputed area is a tract of 60 acres which belonged to the State. Cattle on the deeded land could not reach the disputed area without going across the tract owned by the State. All of the watering places within the enclosed area are and have been on the deeded land, the nearest watering place being about a mile from the disputed tract, so that any cattle that might come from the deeded land to the disputed tract would have to go back about a mile, crossing the tract owned by the State, in order to obtain water. The best land and the best grass in the enclosed area is within the bounds of the deeded land. Much of the disputed area is rough, part of it is grown up with salt cedars, and only a part of it has grass of average quality. On account of the physical facts, and according to petitioner’s testimony, the substance of which has been stated, a few of the average number of 30 cattle kept within the enclosure occasionally went from the deeded land across the tract owned by the State and onto the area in controversy, and occasionally were seen there.

The claimants of adverse possession had no part in the construction of the fences that enclosed the large area. Those fences stood where they are now and formed part of the fence enclosing the 747.58 acres when petitioner’s father acquired the northeast part of that area by deeds. By whom the fences were built and for what purpose the record does not disclose. They were convenient as forming an enclosure which petitioner’s father and petitioner could use for grazing the land that belonged to them.

Thus the area in controversy was, according to- the undisputed evidence, casually or incidentally enclosed, and was occasionally used, and on the authorities cited the possession and use were not of such character as of themselves to give notice of exclusive, adverse possession.

Closely related to the principle of incidental or casual enclosure is the question of the presence or the absence of the essential hostile claim or “claim of right.” Article 5515 of the Revised Civil Statutes defines adverse possession as “an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.” (Emphasis added.)

In Houston Oil Company v. Jones, 109 Texas 89, 198 S.W. 290, the court carefully defined the meaning of the words “claim of right” as contained in the statute- It was there pointed out that notwithstanding the use of these words the court has held and holds that a naked trespasser may acquire a limitation title under the ten years statute. The court’s definition of the words is: “The ‘claim of right’ to which the statute refers simply means that the entry of the limitation claimant must be with the intent to claim the land as his own, to hold it for himself; and such must continue to be the nature of his possession.” The opinion states that “claim of right” is an essential element of adverse possession. And the intention of the possessor to' claim the land as his own or to hold it for himself must be manifested by open or visible act or declaration showing such a purpose.

Petitioner had the burden of proving the elements of adverse possession, including “a claim of right.” In Moore v. Wooten (Com. App.) 280 S.W. 742, 748, it is said that “One who seeks to establish title to land by virtue of the statutes of limitation assumes the burden of proof upon this issue, and this proof must be clear and satisfactory.” See also Urschel v. Garcia, 164 S.W. 2d 804, 805.

“No matter how exclusive and hostile to the true owner the possession may be in appearance, it cannot be adverse unless accompanied by the intent on the part of the occupant to make it so. The naked possession unaccompanied with any claim of right will never constitute a bar.” Houston Oil Company v. Stepney, 187 S.W. 1078, 1084, application for writ of error refused. See also Hopkins v. Waterstreet, 275 S.W. 303; Mosley v. Gulf Production Company, 111 S.W. 2d 726; Shaw v. Windham, 155 S.W. 636, application for writ of error refused; Lyons v. Pullin, 197 S.W. 2d 494, 501.

Claim of right must be manifested by declaration or by open or visible act. If there is no verbal assertion of claim to the land brought to the knowledge of the landowner, the adverse possession must be so open and notorious and manifested by such open or visible act or acts that knowledge on the part of the owner will be presumed. Hopkins v. Waterstreet, 275 S.W. 303.

There is no evidence in the record of any verbal claim of ownership of the land in controversy by petitioner or by petitioner’s father. We have seen that the incidental enclosure of the land and the occasional grazing of it do not constitute evidence of adverse or hostile possession, and this means also that they do not constitute evidence of “claim of right.” Other facts in the record, instead of tending to prove open or visible acts disclosing an intention to claim the land, negative the existence of such an intention. Neither petitioner nor his father ever paid taxes on the disputed land, although they paid taxes on the land they held under the deeds. They never rendered the disputed land for taxes-They never improved the land, never placed a watering tank on it. They never executed any title instruments affecting it, although they did execute such instruments affecting the land held by them under deeds. There is no proof of any open or visible act on the part of petitioner or his father that manifested an intention to claim the land as his own.

Petitioner did testify that he and his father always claimed the disputed tract. This is either testimony about a mental process or the expression of a mere opinion or conclusion. “The ‘claim of right inconsistent with and hostile to the claim of another’ includes more than ‘mental process’ in the possessor; there must be ‘external circumstances discovering that inward intention’.” Scott v. Rodgers, (Com. App.) 6 S.W. 2d 731, 734. See also Titel v. Garland, 99 Texas 201, 206, 87 S.W. 1152. Petitioner’s opinion or conclusion that he and his father claimed the land or possessed it adversely is not evidence of an open or visible act manifesting an intention to claim the land adversely, and it is not evidence that will support a claim of limitation by adverse possession. Mhoon v. Cain, 77 Texas 316, 14 S.W. 24; Urschel v. Garcia, 164 S.W. 2d 804. The opinion or conclusion is not supported by any evidence of open or visible acts in relation to the tract in controversy. From its external manifestations the possession of the enclosed 747.58 acres “could properly be considered by the owner (of the disputed tract) to be a part of that rightfully asserted by the possessor of his own land and did not therefore have that clear and unambiguous quality essential to an adverse possession; hostile to the claim of the true owner.” Smith v. Jones, 103 Texas 632, 635, 132 S.W. 469, 31 L.R.A. (N.S.) 153.

Petitioner further testified that his father bought all the land that was under fence, evidently meaning the entire enclosed 747.58 acres. This also is the expression of an opinion, clearly shown to be nothing more than an opinion by petitioner’s further testimony that “you would naturally buy all that was under fence, you would expect to buy all of it,” and is further shown to be but an opinion by petitioner’s testimony that he was not present when his father bought the land. Petitioner’s father made three distinct purchases of land, all being in the northeast part of the enclosed area, and obtained deeds from three different vendors at different times, the deeds describing the tracts conveyed by metes and bounds, with no reference to' any enclosure or to any fences. There is no evidence of any intention or effort on the part of petitioner’s father to buy all the land in the enclosure. The opinion expressed by petitioner is not only not supported by the record; it is contradicted by the record.

The juudgment of the Court of Civil Appeals is affirmed.

Opinion delivered March 31, 1954.