On Rehearing
Appellants ask for corrected and additional fact conclusions.
(a) They complain of the following conclusion: “Ferdinand and Elizabeth Bartee entered upon the Toliver Survey and established their improvements thereon in 1859.”
*383Appellants’ criticism is: “There is no evidence in the record as to when Bartee went upon the land.” There was evidence that he was there in 1859. It' was appellants’ burden to prove a possession prior to 1859, if they wanted to raise that issue; that they did not do. The criticism of this fact conclusion is overruled.
(b) In the original opinion we made the following conclusion: “They held these improvements jointly, claiming the land actually occupied by them until the death of Ferdinand Bartee in 1870.”
In criticism, appellants say: “There is no scintilla of evidence in this case that Bartee and his wife held the improvements jointly or that either claimed the land actually occupied or that land they claimed or that they claimed any land.” Appellants’ criticism is overruled; the evidence clearly raised the issue that Bartee and his wife made the improvements as husband and wife, and occupied the land jointly as husband and wife until his death in 1870. Supplementing, but in no way limiting, the fact conclusions on this issue stated in the original opinion, we make the following additional finding requested by appellants: “Some time prior to the year 1859, Ferdinand Bartee, with his wife, Elizabeth, entered upon the Toliver Survey and established their home thereon and made improvements thereon, consisting of a residence and out-houses and the fencing and placed into cultivation a por-tio-n of said survey, the exact amount of which is not shown by the evidence. Said Ferdinand continued to reside upon, cultivate, hold actual possession of, use and enjoy said land up to the time of his death in 1870. In that year, while so residing upon said property, he died and is buried in the community grave yard near said place where there is also buried two of his children who died in infancy, one in 1853 and the other in 1855.”
(c) In the original opinion we said: “After his death, his wife, with the children born to her and her deceased husband, continued in possession of the improvements, claiming the same until she married a second time in 1879. Immediately after her second marriage she moved off the Toliver survey and remained off of it for 6 months, but during that time it was occupied and held for her by a tenant. At the end of the 6-month period she moved back on the land and remained there until some time in 1882 — possibly in 1885 — claiming her improvements as she had done continuously since she made her original entry in 1859.”
In criticism of this conclusion, appellants say:- “It is unfair to say that this wife continued in possession of the' improvements, claiming the same until she married. There is no evidence in the record that her possession was limited to her improvements, or that she claimed the improvements as separate from the land or property.” Bearing in mind that appellants were plaintiffs below, the evidence clearly supports our fact conclusions on this issue. However, supplementing, but not limiting, this fact conclusion, we make the following additional finding at appellants’ request: “The wife, Elizabeth, with the children, remained upon the property after the death of her husband, continuing such possession, occupancy and use until in 1879, when she married a second time and moved from the land with her second husband, remaining with him off said survey approximately six months, during which time the land, premises and improvements were occupied and held for her by a tenant. After about six months she returned to the land where she continued to reside under the same circumstances and conditions until as late as 1882, possibly 1885.”
(d)In' our original opinion we say: “Elizabeth Bartee died in 1909. From the time she moved off in 1882 — possibly 1885-—until her death, neither she nor any of the appellants claimed the land in any way, nor were they in possession of any part of the Toliver survey. After her death none of the appellants asserted any sort of claim to the land in controversy, or to any part of the Toliver survey until 1933, when one of the sons entered upon the land, claiming 640 acres under the,possession and claim of Ferdinand and Elizabeth Bartee.”
Against this conclusion appellants offer the following criticism: “It is true Elizabeth died in 1909. It is not to be found in the evidence by statement or insinuation that she did not 'claim the land in any way up to the time of her death. It is correct to say that neither she nor any of the appellants were in actual possession of any part of the Toliver Survey. It is not correct to say nor can it be found by anything stated by any witness or from any circumstance, that after her death none of the appellants asserted any sort of *384claim to the land in controversy or to any part of the Toliver Survey.” This criticism is overruled. We have stated the facts clearly. The burden of proof rested upon appellants to prove every essential element of their cause of action. Where there was no proof, it is the duty of this court to find that issue affirmatively against them. Supplementing but not limiting this conclusion, we find as follows at appellants’ request: “When Elizabeth left the land in 1882 or 1885, she went to live with one of her daughters in West Texas and died there in 1909 and from the date of her leaving neither she nor any of the appellants were in actual possession of any part of the Toliver Survey until one of the sons, before the institution of this suit, entered upon same in 1933. and was residing thereon at the time of the time of the institution of this suit.”
On the facts thus summarized and brought forward by appellants, we again make the conclusion that the Bartees abandoned their possession of this land in 1882 or 1885.
(e) In our original opinion we made the following conclusion: “No testimony was offered that Ferdinand and Elizabeth Bartee claimed any land not within their inclosures.”
Against this conclusion, appellants offered the following criticism: “There was no testimony offered that they claimed any land within or not within their inclosure. The facts are that what' they claimed there was not within the possibility of proof because of their death, the remoteness of the time and the lack of living witnesses.” It was appellants’ burden to prove the extent of their claim. There is no presumption that they claimed outside of their boundaries. Supplementing, but not limiting, our conclusions on this issue, we make the following additional conclusion at appellants’ request: “No testimony was offered as to any claim of any land on the Toliver Survey with or without their inclosure or as to the extent of such claim or its location, except the facts hereinbefore recited and the inferences that are legitimately to be drawn therefrom.”
(f) On the issue of the payment of taxes, at the request of appellants, we find as follows: “The possession held by Ferdinand and Elizabeth Bartee was peaceable. There is no evidence of any taxes having been paid on the land by any person prior to 1905, or subsequent to 1913, but between those dates appellees rendered a portion of the Toliver Survey for taxes and paid the taxes thereon and there is no evidence of any other rendition or payment of taxes on the survey by any person at any time.”
In all other respects, appellants’ motion for additional fact conclusions is overruled; the motion for rehearing is in all things overruled.