Opinion on Rehearing
Appellant in the above entitled cause has filed a motion for rehearing and a motion for correction of statement and findings of fact.
In his motion for correction of statement of facts he contends that the Court erred in its original opinion in which it stated that it was established by a number of witnesses introduced by appellees that the east side of the land in controversy was continuously enclosed by cattle proof fences and natural barriers and that on the land known as the West pasture, in which the land in controversy was enclosed, cattle had been kept for more than ten years.
It is undisputed that West and appellees regularly paid all taxes on such property before delinquency for all years beginning with 1935 and continuing through 1951. Mr. West also assessed said property with all taxing authorities. As stated in original opinion appellant had deed from J. H. Ross dated March 16, 1931, conveying the surface of the property in controversy. This deed was not filed for record until May 21, 1946, and the record shows that appellant never rendered the property for taxes nor paid any taxes on it.
West had actual possession and use of the 40 acres in controversy continuously from as early as 1934 to date of the trial. The 40 acres in controversy being part of a pasture containing 250 acres of land.
The open, adverse and continuous possession of such property as a pasture for the West cattle and other livestock is, we think, conclusively established. Mr. West’s intent to claim the property as his own and his actual claim and also the like intent and actual claim of his successors in title is, we think, conclusively established by his acceptance and recording in 1934 of the deed to the property and regular rendition and payment of taxes, the continuous maintenance of enclosures and the use of the 250 acres which comprehended the 40 acres in controversy, as well as the testimony of J. H. Ross, appellant’s vendor, 'as to the declarations and purposes of J, M. West, and the positive testimony of appellee Platt, called as an adverse witness by appellant. ; The 40 acres in controversy constituted the northerly portion of the enclosed area. Its northerly side was bounded by Clear Creek ánd Chigger Bayou! Its easterly line touched the fence which was the common line between West and Letzerich. A segment of the fence ran through the 40 acres just easterly of the west line thereof. There was no fence pn the southerly side of the 40 acres separating it from the re? mainder of the 250 acre pasture. The southerly fence of the 250 acres was and is on the north border line' of the Leagufe City-Friendswood Road. Such southerly pasture had as its northerly lipe ¾ separate and distinct fence, which was on, .the south? erly line of such road. The fence on the southerly boundary of- the 250 acre pasture was clearly for the sole purpose of consti? tuting a part of the enclosure of the 250 acre pasture, and throughout the periods pf limitation above .referred ■ to, such, south? erly fénce was maintained solely .by appel? .lees. ■ West owned the record title to Lots 20, 21, 22, 2 and 3 forming thereby a continuous area pf adjacent lots extending, fropa the 40 acres to the League City-Friends-wood Road.
From the above facts, we think that the record clearly shows that' the land in coiif trovérsy was continually enclosed' for the necessary period of time to establish in ap-pellees a limitation title to the land'in controversy. Appellant’s motion for rehear? ing is refused, and also appellant’s motion for correction of statement1 and findings of fact is refused.