This suit was instituted in the district court of Rusk county by Friedman Oil Corporation and others against Southern Oil Refining Company and others, including the International-Great Northern Railroad Company, in form of trespass to try title to recover seven-eighths of the oil, gas, and other minerals in, under, or produced from a certain 13.3-acre tract of land out of the W. R. Cook survey in said county. The Mayfield Company, a corporation, intervened, stood in the same position as the plaintiffs, and complained of the same defendants. We do not find it necessary to a determination of the rights of the parties and the issues of law presented in this appeal to recite in detail the names of the several parties plaintiff and defendant nor the specific claim by each of them respectively. The rights of all the parties are controlled by the finding of the court that plaintiffs and intervener failed to show title in themselves, or any of them, to the land sued for, or any interest therein, and that the defendant railroad, under whom all the other defendants claimed, had long prior to the institution of this suit acquired title thereto under and by virtue of our statutes of limitation.
The trial was before the court without the intervention of a jury, and the court, on the testimony submitted, entered judgment that the plaintiffs and intervener take nothing by their suit and that all the defendants go without day. At the same time final judgment was filed for entry by the court, he filed in connection therewith elaborate findings of fact and conclusions of law. Plaintiffs and intervener have joined in suing out writ of error to this court.
Plaintiffs and intervener had the burden of showing title in themselves from and under Cook, the original patentee. Reese v. Cobb, 105 Tex. 399,402, 150 S.W. 887; Kirby Lumber Co. v. Conn, 114 Tex. 104, 111,263 S.W. 902. The testimony quoted, in substance, above was not of such conclusive character as to require affirmative findings as against defendants that Cook had conveyed his headright certificate to Bradley prior to the location thereof; that such certificate was located in part on the survey upon which the land in controversy is situated; that said Bradley, by virtue of the ownership of said certificate, was the equitable owner of such survey; and that the same constituted a part of his estate at his death. Neither was there such testimony as to require an affirmative finding that either of the deeds recorded in the burned record book, as shown by the index thereto, conveyed the land in controversy or the survey upon which such land is situated, nor that such conveyance was in pursuance of a valid order of the probate court in the administration of the estate of said Bradley. Watkins v. Smith,91 Tex. 589, 590, 591, 45 S.W. 560; Bounds v. Little, 75 Tex. 316, 321,12 S.W. 1109; Terrell v. Martin, 64 Tex. 121, 124, et seq.; White v. Jones, 67 Tex. 638, 639, 4 S.W. 161. When, as in this case, the ultimate fact or facts to be ascertained are not shown by direct testimony but are to be inferred in whole or in part from other circumstances in evidence, original fact finding jurisdiction is invoked. Maryland Casualty Co. v. Williams (Tex.Civ.App.) 47 S.W.2d 858, 859, par. 2, and authorities there cited. *Page 139 The trial court having held, under the circumstances in evidence, that plaintiffs and intervener had failed to show title in themselves, such finding will not be disturbed.
Plaintiffs and intervener contend that the court erred in holding that the defendant International-Great Northern Railroad Company, under whom all the other defendants claim, had, prior to the institution of this suit, acquired full title to the land sued for under and by virtue of our statutes of limitation. The court found, in substance, that W. S. Harrington, on October 27, 1871, executed and delivered a deed conveying to International-Railroad Company the fee title to the land involved in this suit; that said deed was duly recorded on May 30, 1872; that title passed from the grantee therein by mesne conveyances to the defendant International-Great Northern Railroad Company; that the original grantee promptly entered into possession of said land, used it for such purposes as desired; and that it and its successors in interest, including the defendant railroad company, had claimed the same and had held possession thereof continuously, peaceably, and adversely under such deed from about 1872 to the time of trial; that the railroad track was constructed thereon about said year 1872; that such track had been used daily and continuously since said time for the operation of trains thereon; that said right of way was substantially fenced as early as 1901; that telegraph lines had been erected on one side of said track and telephone lines on the other side thereof and used continuously since the construction of the railroad; that the land had been kept free and clear of underbrush; and that dirt, rock, and other material therefrom had been used thereon and on other railroad lands. Said findings are not assailed. The parties to this suit agreed in open court that the defendant International-Great Northern Railroad Company and its predecessors in title paid taxes for the years 1889 to 1931, both inclusive, on its railway, including right of way, roadbed, superstructures, depots, grounds, etc. The testimony does not show that said W. S. Harrington had title to the land which he conveyed to the railroad as above recited.
The gist of the contention so urged by plaintiffs and intervener is that a railroad corporation cannot acquire, under and by virtue of our statutes of limitation, title to any greater interest in or to land used and occupied by it as an ordinary right of way than a mere easement. Such contention is in accord with the authorities when such a corporation enters upon land and holds possession thereof as a naked trespasser, without deed or other written memorandum of title thereto. Galveston, H. S. A. Ry. Co. v. McIver (Tex.Civ.App.) 245 S.W. 463, par. 1, and authorities there cited; International-Great Northern R. Co. v. John T. Brady Corp. (Tex.Com.App.) 283 S.W. 484, 486, par. 2. The deed from Harrington to the International-Railroad Company was almost a literal copy of a deed construed by our Supreme Court in the case of Brightwell v. International-Great Northern Railroad Co., 121 Tex. 338, 340, et seq., 49 S.W.2d 437, 84 A.L.R. 265. The court held that the effect of the language used in the Brightwell deed was to convey a fee-simple title, and not a mere easement. Said Harrington deed therefore purported to convey the fee-simple title to the land described therein. Said deed was promptly recorded. It, together with the possession held thereunder, was notice to all claiming in opposition thereto of the extent and character of the railroad's claim. Holland v. Nance, 102 Tex. 177, 183, 114 S.W. 346. When a railroad purchases the land, as distinguished from a mere right of user or easement, and in doing so acquires by its deed an imperfect title, it stands in the same situation as other persons with reference to the statutes of limitation. Small v. McMurphy, 11 Tex. Civ. App. 409,32 S.W. 788, 790; Buchanan v. Houston T. C. R. Co. (Tex.Civ.App.)180 S.W. 625, 628, pars. 17 to 19, inclusive; Texas N. O. R. Co. v. Orange County (Tex.Civ.App.) 206 S.W. 539, 544, par. 7 (writ refused); Webster v. International Great Northern Ry. Co. (Tex.Civ.App.) 193 S.W. 179, 180, 181, par. 4, and authorities there cited. The trial court properly held that the original grantee in the Harrington deed and its successors acquired full title to the land sued for herein under our statutes of limitation prior to the institution of this suit.
The determination of the issues above considered controls the disposition of this appeal, and other questions presented become immaterial.
*Page 140The judgment of the trial court is affirmed.