GAINES, Chief Justice.
This suit was brought by the plaintiff in error, as the owner of a lot in the city of Sherman, against the defendants in error, to recover damages for the obstruction of an alley adjacent to her property and to enjoin the interference with her easement therein. The defendants pleaded, with other defenses, the statute of limitation of five years; and this was the defense mainly relied upon, on the trial. The court, trying the case without a jury, held that the plaintiff’s action was barred by the statute, and gave judgment for the defendants. This judgment was affirmed by the Court of Civil Appeals.
The trial judge filed his conclusions of fact as well as" his conclusions of law; and there being no statement of facts in the transcript, the correctness of the former are not challenged.
We will first state, in brief, the facts as established by the court’s findings, and as preliminary thereto we here insert a plat of the premises in controversy, with their surroundings:
In January, 1895, the strip of land in the city of Sherman, the corners of which are marked on the plat A, B, C and D, and which extended east and west from Walnut to North Travis Street, had been used as a public alley for twenty years or more. There was no proof that it had ever been worked by the city or that it had been platted upon the official map. The adjacent property had been laid out in blocks and lots by one Bond, who dedicated the alley to public use and sold the lots adjoining it with the right of his vendees to use it as such. His deeds, however, made no reference to the alley in question. At the same time there was another alley which extended north and south across the block, as appears upon the plat.
At the date above mentioned, Brockett Street extended no further west than Walnut Street. The eity, then having in view the extension of Brockett Street westward, for the-purpose of raising money to pay for the land which lies- immediately north of the east and west alley above mentioned, attempted to convey that alley to defendant Crenshaw for the sum of $400, paid by him. Mrs. Coulter was at the time the owner of the lot now owned by Mrs. Peden and did not consent to the sale of the alley. Crenshaw immediately caused his deed to be recorded and inclosed that part of the alley which lies north of his lot. He also caused posts to be placed along the north line of that portion of the alley which lies directly north of Mrs. Pedeffs (the plaintiffs) lot; and also set up a post at each end of that portion equidistant from the north and south lines. The possession so taken by Crenshaw was continued by him for more than five years before the bringing of this suit— during all of which time he paid all taxes upon the alley. In 1895, upon an “attempt by Crenshaw to close the alley which runs north and south,—presumably at the intersection with the east and west alley,— A. L. Beaty brought a suit to enjoin him from doing so, and this suit resulted in a compromise judgment, which left it open to Brockett Street.
Some time after his purchase from the city of Sherman, defendant Crenshaw leased the portion of the alley in controversy to his codefendant, Berry, who on June 1, 1901, erected a board fence ten feet high along its north and east lines. Thereafter this suit was brought to recover damages and to enjoin the obstruction of the alley.
When Crenshaw purchased the alley Mrs. Coulter was in possession by tenants of the lot she subsequently sold to Mrs. Peden and continued in such possession until the sale. Upon the sale her tenants immediately attorned to the plaintiff. The possession so continued until the plaintiff occupied the lot in person, from which time she remained in occupancy until the bringing of this suit.
In the case of the City of Galveston v. Menard, 23 Texas, 349, and in subsequent cases, it was held by this court, that the statute of limitations would run against a city. But in 1887 an act was passed by the Legislature, which in effect placed cities and towns upon the same foot
ing as the State with respect to the acquisition of title by adverse possession, with the proviso, however, that “this law shall not apply to any alley laid out across any block or square in any city or town.” It was, evidently the purpose of the Legislature to leave the law in regard to alleys as it had previously been declared by the decisions of this court.Therefore the question presented in this case is, did defendant have such possession of the portion of the alley in controversy as will enable him to claim title by limitation?
We think it clear that there was not such actual adverse possession of the premises in controversy as will support the statute of limitation. The mere erection and maintenance of posts around this parcel of land do not in our opinion constitute such possession as to meet the requirements of the statute. But in case of the five years and ten years statutes of limitation something more than mere possession is necessary to com: píete the bar to an action. There must also be “cultivation, use or em joyment.” In construing the old statute (Pasch. Dig., art. 4623) which, in this particular at least, is the same as the present law, Judge Roberts in Mitchell v. Burdett, 22 Texas, 633, says: “To acquire a right to land under this section, the party must show a deed duly registered, and possession of the land under his deed for five years, and such possession must, during that time, be attended with the usual incidents of full ownership; that is, the advantage of cultivation, use or enjoyment, and the burthen of paying the taxes, if any be due. It rests on the idea, that he who can show that he has thus notoriously claimed and used, and borne the burthens of property, as his own, is most likely to be its true owner, although he may not be able to exhibit a regular chain of title from under the government, and shall be taken to be the trué owner. This is giving very great force to the presumption arising from the usual incidents of ownership, and can only be accounted for, reasonably, on the supposition that great importance and weight was attached to the concurrence of so many of the incidents of ownership as are specified in this section, to wit, a deed, registration of deed, possession of land, cultivation, use or enjoyment, payment of taxes, and these all com tinned in connection during the full period of five years. Bach of these incidents, then, become very important, in order to support the com elusive force of the -whole.” 'Since it does not appear that defendant Crenshaw either cultivated or in any manner used or enjoyed the property for the period of five years, he can not claim the benefit of the' statute as an actual possessor.
Had he' such constructive possession as to give the right to assert title under the statute in question? The general rule is that one who receives a conveyance to a tract of land, and goes into and holds possession of a part, 'is deemed to be in constructive possession of the whole tract as described in his deed. But there is a well, defined exception to this rule. The real owner of a tract of land, who is in possession of 3 part of his land, has constructive possession of the whole tract. .So that
there can be no constructive possession by an adverse claimant of the part not occupied by him. As against him the possession of such adverse claimant, in order to be effective, must be actual.
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GAINES, Chief Justice.
This suit was brought by the plaintiff in error, as the owner of a lot in the city of Sherman, against the defendants in error, to recover damages for the obstruction of an alley adjacent to her property and to enjoin the interference with her easement therein. The defendants pleaded, with other defenses, the statute of limitation of five years; and this was the defense mainly relied upon, on the trial. The court, trying the case without a jury, held that the plaintiff’s action was barred by the statute, and gave judgment for the defendants. This judgment was affirmed by the Court of Civil Appeals.
The trial judge filed his conclusions of fact as well as" his conclusions of law; and there being no statement of facts in the transcript, the correctness of the former are not challenged.
We will first state, in brief, the facts as established by the court’s findings, and as preliminary thereto we here insert a plat of the premises in controversy, with their surroundings:
In January, 1895, the strip of land in the city of Sherman, the corners of which are marked on the plat A, B, C and D, and which extended east and west from Walnut to North Travis Street, had been used as a public alley for twenty years or more. There was no proof that it had ever been worked by the city or that it had been platted upon the official map. The adjacent property had been laid out in blocks and lots by one Bond, who dedicated the alley to public use and sold the lots adjoining it with the right of his vendees to use it as such. His deeds, however, made no reference to the alley in question. At the same time there was another alley which extended north and south across the block, as appears upon the plat.
At the date above mentioned, Brockett Street extended no further west than Walnut Street. The eity, then having in view the extension of Brockett Street westward, for the-purpose of raising money to pay for the land which lies- immediately north of the east and west alley above mentioned, attempted to convey that alley to defendant Crenshaw for the sum of $400, paid by him. Mrs. Coulter was at the time the owner of the lot now owned by Mrs. Peden and did not consent to the sale of the alley. Crenshaw immediately caused his deed to be recorded and inclosed that part of the alley which lies north of his lot. He also caused posts to be placed along the north line of that portion of the alley which lies directly north of Mrs. Pedeffs (the plaintiffs) lot; and also set up a post at each end of that portion equidistant from the north and south lines. The possession so taken by Crenshaw was continued by him for more than five years before the bringing of this suit— during all of which time he paid all taxes upon the alley. In 1895, upon an “attempt by Crenshaw to close the alley which runs north and south,—presumably at the intersection with the east and west alley,— A. L. Beaty brought a suit to enjoin him from doing so, and this suit resulted in a compromise judgment, which left it open to Brockett Street.
Some time after his purchase from the city of Sherman, defendant Crenshaw leased the portion of the alley in controversy to his codefendant, Berry, who on June 1, 1901, erected a board fence ten feet high along its north and east lines. Thereafter this suit was brought to recover damages and to enjoin the obstruction of the alley.
When Crenshaw purchased the alley Mrs. Coulter was in possession by tenants of the lot she subsequently sold to Mrs. Peden and continued in such possession until the sale. Upon the sale her tenants immediately attorned to the plaintiff. The possession so continued until the plaintiff occupied the lot in person, from which time she remained in occupancy until the bringing of this suit.
In the case of the City of Galveston v. Menard, 23 Texas, 349, and in subsequent cases, it was held by this court, that the statute of limitations would run against a city. But in 1887 an act was passed by the Legislature, which in effect placed cities and towns upon the same foot
ing as the State with respect to the acquisition of title by adverse possession, with the proviso, however, that “this law shall not apply to any alley laid out across any block or square in any city or town.” It was, evidently the purpose of the Legislature to leave the law in regard to alleys as it had previously been declared by the decisions of this court.Therefore the question presented in this case is, did defendant have such possession of the portion of the alley in controversy as will enable him to claim title by limitation?
We think it clear that there was not such actual adverse possession of the premises in controversy as will support the statute of limitation. The mere erection and maintenance of posts around this parcel of land do not in our opinion constitute such possession as to meet the requirements of the statute. But in case of the five years and ten years statutes of limitation something more than mere possession is necessary to com: píete the bar to an action. There must also be “cultivation, use or em joyment.” In construing the old statute (Pasch. Dig., art. 4623) which, in this particular at least, is the same as the present law, Judge Roberts in Mitchell v. Burdett, 22 Texas, 633, says: “To acquire a right to land under this section, the party must show a deed duly registered, and possession of the land under his deed for five years, and such possession must, during that time, be attended with the usual incidents of full ownership; that is, the advantage of cultivation, use or enjoyment, and the burthen of paying the taxes, if any be due. It rests on the idea, that he who can show that he has thus notoriously claimed and used, and borne the burthens of property, as his own, is most likely to be its true owner, although he may not be able to exhibit a regular chain of title from under the government, and shall be taken to be the trué owner. This is giving very great force to the presumption arising from the usual incidents of ownership, and can only be accounted for, reasonably, on the supposition that great importance and weight was attached to the concurrence of so many of the incidents of ownership as are specified in this section, to wit, a deed, registration of deed, possession of land, cultivation, use or enjoyment, payment of taxes, and these all com tinned in connection during the full period of five years. Bach of these incidents, then, become very important, in order to support the com elusive force of the -whole.” 'Since it does not appear that defendant Crenshaw either cultivated or in any manner used or enjoyed the property for the period of five years, he can not claim the benefit of the' statute as an actual possessor.
Had he' such constructive possession as to give the right to assert title under the statute in question? The general rule is that one who receives a conveyance to a tract of land, and goes into and holds possession of a part, 'is deemed to be in constructive possession of the whole tract as described in his deed. But there is a well, defined exception to this rule. The real owner of a tract of land, who is in possession of 3 part of his land, has constructive possession of the whole tract. .So that
there can be no constructive possession by an adverse claimant of the part not occupied by him. As against him the possession of such adverse claimant, in order to be effective, must be actual. Hence if Mrs. Coulter, the plaintiff’s grantor, had been the owner in fee not only of the lot now owned by plaintiff, but also of the part of the alley in controversy, her possession of the lot would have given her constructive possession of the whole. And so with the plaintiff when she purchased the lot and took possession of it. Had she purchased with it and acquired title to the strip of land in controversy, she would have had constructive possession of the latter; and defendant Crenshaw’s possession of a part of the tract conveyed to him by the city of Sherman could not be construed to extend to any part of her land, although such part was not occupied by her. Now neither Mrs. Coulter nor the plaintiff had or claimed title to the fee in the alley, but as appurtenant to the lot successively owned by them, they had in succession an easement in the part of the alley adjacent to the lot—a right of passage over it for the purposes of ingress and egress and of the enjoyment by the occupants of the lots of such benefits as would result from its being kept an open space. If there be any difference between the two cases, it seems to us that the actual case is stronger in favor of limiting the constructive possession of Crenshaw than that supposed. In the hypothetical case, they could have taken possession of the property in dispute; in the case here presented they had no right of actual occupancy, but merely the right to exercise the dominion incident to the easement.
It results from our conclusion that Crenshaw had neither actual nor constructive possession of the part of the alley in controversy for the period of five years, that in our opinion the trial court erred in sustaining the plea of the statute of limitations. For this error the judgment must be reversed. The plaintiff in error, however, requests that since the facts have been found by the trial judge, we should not only reverse the judgment, but here render judgment for her. In addition to the findings of fact previously stated, the trial judge found, "that the fence prevents the north breeze from having free access to the Peden lot and damages the rental value of the Peden lot $3 a month, and aggregating the sum of $24.” It is further insisted on behalf of the plaintiff in error that we should render judgment not only for the $24 damages found by the court, but also for damages at the rate of $3 per month from the time that Berry erected his fence; that is to say, from June 1, 1901, to the time of the rendition of the judgment in this court. It is not complained in the motion for new trial, nor in the exceptions to the court’s conclusions of fact and law, that the damages found by the court were too small, nor is such point made in the assignments of error in the Court of Civil Appeals. We therefore can not consider that question here. Neither can we render a judgment for a recovery of damages which may have accrued since the trial of the case. We can not know .that the fence, which created the damage, has been permitted to remain until this time.
For
these reasons we think the judgments of the District Court and of the Court of Civil Appeals ought to be reversed and judgment here rendered for the plaintiff in error against defendants in error for the sum of $24 and for the injunction as prayed for in the plaintiff’s petition; and it is accordingly so ordered.