dissenting.
In my opinion the evidence of petitioners is sufficient in law to support the trial court’s findings of title under the ten year statute of limitation.
If the Court of Civil Appeals was dissatisfied with the weight or sufficiency of the evidence, it had the power to reverse the trial court’s judgment and remand the cause for another trial, but in my opinion it had not the right to render a judgment against the petitioners.
The trial court made, among others, the following findings:
“That the original grant to the Town of Refugio contained, including the river bed, exactly four leagues of land;
“That consequently on March 3, 1929, the effective date of the Relinquishment Act (Small Bill) and under said Act, title to the river bed vested in the town; and,
“That continuously after said March 3, 1929, petitioners had said lands enclosed by good fences under claim of ownership, which was adverse, open, visible, notorious and hostile to said town.”
Specifically, the trial court found that on said date the land here involved was fully enclosed in good fences capable of turning cattle, which fences crossed the Mission River and enclosed the same and defendants maintained these fences in good condition for a period of ten consecutive years after March 3, 1929, and prior to the filing of this suit on March 6, 1939, continuously using said land during that period for the grazing of cattle and the Houston Oil Company of Texas as lessee under a mineral lease which covered the bed of said river here involved asserted' a determinable fee in said river bed, paying taxes thereon before they became delinquent; that the Town of Refugio therefore on March 3, 1929, had notice of defendants’ claim of ownership, which was adverse, open, visible, notorious and hostile to the Town of Refugio during all of said ten year period, and defendants and their privies in title had said property so enclosed in good fences, maintaining same by fence riders and other agents continuously since 1904.
*151The mineral lease to the Houston Oil Company was executed in 1925 and was duly recorded in the deed records of Refugio County on October 3, 1925. An amended lease was recorded later in October 1928. The evidence shows without dispute that the oil company, prior to and during said ten year period, drilled and operated wells producing oil and gas from the lands included in the lease. During that ten year period the oil company drilled some twenty-four wells under its lease. One of the wells was located probably within one hundred feet of the thread of the stream. The wells were located on the north and to the south of the river, and some of them are situated close enough to make it appear reasonably certain that the wells drained oil from under the bed of the river. The leasehold was operated by the oil company as a unit.
The petitioners did not establish a limitation title to the land or to the minerals against the State, but under the Small Bill the State’s title to the bed of the river was relinquished to the Town of Refugio. Thus on the effective date of the Small Bill the continued use and possession of the surface owners and their lessees was notice to the Town of Refugio. In the case of Wingfield v. Smith, 241 S. W. 581,. writ refused, the adverse claimant fenced the land involved while the land was owned by the State. After the State of Texas awarded the land to another, the adverse claimant continued to claim the enclosed land for a period of more than ten years after the award of the State. The court used the following language in disposing of the awardee’s claim:
“It is next contended that, appellee having placed the fence on the land while it was owned by the state, he acquired no right or title in the fence, and when the land was awarded by the state to appellant the fence became his property, and its further use by appellant for inclosing the land in controversy would not give him exclusive possession of the land north of the fence, because the existence of the fence on the land would not give appellant notice that the land north of the fence was inclosed with other lands of appellee and was held and claimed by him.
“It seems to us that to state this contention makes its unsoundness obvious. Of course, the title to the fence passed to appellant with the land; but it continued to inclose.the land on its north side with the other land of appellee, and when appellant allowed this inclosure to'continue and appellee to have the exclusive use and enjoyment of the land, claiming it as his *152own for more than 10 years after it was awarded to appellant by the state, such possession of appellee ripened into title. Appellant was bound to take notice of the use and possession of the land by appellee.”
It is readily seen that the same principle is applicable to the Town of Refugio. We may paraphrase the expression, the Town of Refugio was bound to take notice of the use and possession of the land by the surface owners and their lessee, the oil company.
Moreover, the fencing of an alley in an incorporated town has been held to be notice to the county of an adverse limitation claim. Guadalupe County v. Poth, 163 S. W. 1050.
It is believed that the use of the land by the oil company under its lease, which was of record and in which the river bed was included within the lease; the acts of the oil company in drilling oil wells, the running of pipe lines, and of ways over and across the thread of the stream, show an assertion of ownership sufficient to notify the world of its adverse claim. That oil wells were not drilled in the river bed is immaterial when the adjacent wells to the river were close enough to drain oil from under the stream, and particularly is this true where, as here, the entire lease of the oil company was operated as a unit.
That title was obtained under adverse possession under the authoritative decisions in this State is clearly shown from the following authorities: Jones v. Siler, 129 Texas 18, 100 S. W. (2d) 352; Kilpatrick v. Gulf Production Co., 139 S. W. (2d) 653; Laird v. Gulf Production Co., 139 S. W. (2d) 653; Laird v. Gulf Production Co., 64 S. W. (2d) 1080; Leverett v. Leverett, 59 S. W. (2d) 252; Broughton v. Humble Oil & Refining Co., 105 S. W. (2d) 480; Crawford v. Humble Oil & Refining Co., 150 S. W. (2d) 849.
The titles so acquired do not militate against the navigability of Mission River; nor do they preclude the ordinary riparian rights of an owner of uplands contiguous to a navigable stream. The primary and dominant purpose of the Small Bill was to relinquish unto the citizen the minerals under the beds of streams like the Mission River where the citizen had been awarded a specific number of acres and it required the acreage contained in the bed of the streams to complete the acreage awarded to him.
*153For the reasons stated, I respectfully enter my dissent to a contrary holding of the majority.
Opinion delivered July 19, 1947.
Associate Justices Brewster and Folley join in this dissent.