dissenting.
I respectfully dissent from the majority’s findings of ‘no evidence’ to support the jury’s negative answers to the issues on adverse possession. On the contrary the record reflects an abundance of probative evidence which effectively contradicts appellant’s claim of adverse possession.
The established rule in this regard requires that the party seeking limitation title under TEX.REV.CIV.STAT.ANN. art. 5510 (Vernon 1958) must affirmatively show, by clear and satisfactory proof, the following: (1) peaceful and continuous possession, use and enjoyment of the disputed land for the statutory period; (2) the possession must be adverse or hostile to the rights of the record owner; and (3) there must be an exclusive domination over the property and appropration of it for his own use and benefit. Karell v. West, 616 S.W.2d 692, 695 (Tex.Civ.App.—Fort Worth), writ ref'd n.r.e. per curiam, 628 S.W.2d 48 (Tex.1981); Radford v. Garza, 586 S.W.2d 656, 660 (Tex.Civ.App.—Corpus Christi 1979, no writ); Rocha v. Campos, 574 S.W.2d 233, 235 (Tex.Civ.App.—Corpus Chrsti 1978, no writ). In the instant case, the jury’s findings to the special issues, on the question of adverse possession of the disputed land, were against appellant. Apparently, the trial court did not agree that the evidence conclusively established appellant’s claim of adverse possession but found the question to be sufficiently disputed to submit special issues requiring the jury to determine the fact questions. Adverse possession is usually considered a fact issue to be determined by the jury, however, when the facts are undisputed, the trial court will determine the question of limitation title as question of law. See Plumb v. Stuessy, 603 S.W.2d 351, 355 (Tex.Civ.App.—Austin 1980), rev’d on other grounds, 617 S.W.2d 667 (Tex.1981); Frederick v. Chaney, 589 S.W.2d 856, 859 (Tex.Civ.App.—Fort Worth 1979, no writ). As a general rule, a fact finder has implied finding power and can make a reasonable inference from the direct or circumstantial probative evidence. See Harrison v. Harrison, 597 S.W.2d 477 (Tex.Civ.App.—Tyler 1980, writ ref’d n.r.e.).
Our review of this record clearly shows the conflicting nature of the testimony which gave issue to the fact questions, involving limitations title, submitted to the jury. Appellant testified that as a result of a survey he found out he had enclosed by fence more land than he had purchased— but—concealed this information. Appellant never told appellees, nor did he have an express or implied agreement, as to the use of the disputed land. He used the disputed land for grazing cattle occasionally—but—admitted the disputed land was not used most of the time. Appellant sold all his livestock in 1976 terminating any claim of actual or continuous possession. Thereafter he leased to Ramon Flores only the 948.35 acres purchased from appellees.
THE EVIDENCE
1. Defendant’s exhibit No. 3 admitted into evidence was the grazing lease from appellant to Ramon Flores on April 6, 1976. Appellant charged rent for 1200 acres, but later upon complaint of tenant and by agreement reduced the rent to correspond to the 948.35 acre tract. Flores testified he never asserted adverse or open hostile claim to appellees. His testimony, even if conflicting, could have been considered by the jury in its implied findings and infer-*233enees in support of its verdict. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273, 276 (1958). (Emphasis added). The jury was correct that there was no continuous adverse possession for the statutory period.
2. Plaintiffs exhibit 14 admitted into evidence was the oil and gas lease executed by appellant on March 7, 1972. Appellant leased “all of Share No. 4 containing 948.35 acres. The jury could have considered this evidence as a basis for its implied finding, reasonable inferences and deductions. Harrison v. Harrison, supra. The jury was correct that appellants did not actually and visibly appropriate the land in dispute for ten years.
3. Plaintiffs exhibit 23 admitted in evidence is a rental receipt showing a delay rental on the oil and gas lease paid to appellant on January 2, 1979 for the tract of land described as 948.35 acres in Share No. 4 of the Antonio Salinas Estate.
4. Plaintiffs exhibit 15 admitted in evidence was a deed of trust executed by appellant on April 21, 1979, as security for the payment of a promissory note to Union National Bank. The security given was on the 948.35 acres tract.
5. Dr. Garcia testified that he only paid taxes on the 948.35 acres which he purchased from appellees. He admitted that he did not pay taxes on the 59.88 acres of land which he claimed by adverse possession. “The payment of taxes is not necessary to support ten year limitation title, however, the failure to pay taxes will be considered as probative evidence that an adverse claim was not made.” (Emphasis added.) See Davis v. Carriker, 536 S.W.2d 246, 251 (Tex.Civ.App.—Amarillo 1976, writ ref d n.r.e.). This was a factor which the jury could have considered in its finding that appellant was not in continuous possession or actually and visibly appropriated the land in dispute for the ten year period.
The majority relies heavily on the testimony of Abraham Palacios, Jr. which the jury in its prerogative chose to disregard. Royal v. Cameron, 382 S.W.2d 335, 339 (Tex.Civ.App.—Tyler 1964, writ ref’d n.r. e.). (Emphasis added). The jury further disregarded all of the conflicting and contrary testimony.
The majority is of the opinion that the witness Abraham Palacios, Jr., one of the appellees, judicially admitted that the fence that divided their land from appellant’s lands was the true boundary line that had existed for the ten year period. I do not agree. In Texas, the term “judicial admission” has been defined as a “waiver of proof” during the course of a judicial proceeding. United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224 (Tex.Civ.App.—San Antonio 1951, writ ref’d). The rule by which a party’s recovery in a lawsuit is barred by his own testimonial declarations is one of public policy, that being, it would be as absurd as it manifestly would be unjust to allow a party to recover after he has clearly and unequivocally sworn himself out of court. Carr, 242 S.W.2d at 229. The five rules set forth by then Associate Justice Norvell in the Carr ease must apply before a party’s testimony is conclusive against him. Griffin v. Superior Insurance Co., 161 Tex. 195, 338 S.W.2d 415, 419 (1960). It is incumbent upon appellant to satisfy these five following requirements:
(1) That the declaration relied upon was made during the court of a judicial proceeding;
(2) That the statement is contrary to an essential fact embraced in the theory of recovery or defense asserted by the person giving the testimony;
(3) That the statement is deliberate, clear and unequivocal. The hypothesis of mere mistake or slip of the tongue must be eliminated. If the statement merely contradicts some other portion of the party’s testimony, conclusive effect cannot be given thereto, but a fact issue is presented for the determination of the jury;
(4) That the giving of the conclusive effect to the declaration will be consistent with the public policy upon which the rule is based; and
*234(5) That the statement is not also destructive of the opposing party’s theory of recovery. In other words, the declaration must be one relating to a fact upon which a judgment in favor of the opposing party may be based.
Abraham G. Palacios, appellee, made the declarations during the course of the proceedings in the instant case; satisfying the first requirement. The statements were contrary to an essential fact embraced in appellee’s suit to try trespass to title because the witness admitted to the belief that the fence was the true boundary line; satisfying the second requirement. The witness’ statements, however, were not deliberate, clear and unequivocal; first, the statements were of a matter held as an opinion or belief, second, such belief was mistaken, and finally, the statements were contradicted by other testimony of Abraham G. Palacios. To give conclusive effect to these statements would not be consistent with public policy because Mr. Pal-acios was not unequivocally swearing himself out of court. Finally, although the declaration relates to a fact upon which a judgment in favor of appellant may be based, it does not establish the admitted element as a matter of law. Testimony of parties to a suit must be regarded as evidence, not as facts admitted. Carr, 242 S.W.2d at 228. In the instant case the declarations were to be given whatever weight the trier of fact, the jury, resolved. Here the resolution was in favor of the appellees. Appellants failed to satisfy the mandatory requirements of the Carr case. I therefore reiterate that the jury apparently chose to disregard this testimony.
Appellant contends and the majority agrees that the evidence conclusively established the adverse possession of the disputed land and further that there was no evidence to support the jury’s findings to the special issues 1, 2, 3, 6 and 16.
In deciding appellants’ “conclusive” contentions, we must review the whole record to ascertain if the probative evidence establishes as a matter of law the asserted proposition. In this connection the probative evidence must be sufficient to convince reasonable minds that there is no material fact issue concerning the asserted proposition. But, however, where there is probative evidence contrary to the asserted proposition, the matter must be resolved by the fact finders. Shop Rite Foods, Inc. v. Upjohn Co., 619 S.W.2d 574, 578 (Tex.Civ.App.—Amarillo 1981, writ ref’d n.r.e.). The majority ignores the established Texas rules in this regard. The question of whether appellant’s claimed use of the disputed land was such as to give notice of exclusive, hostile and adverse possession was a question of fact to be determined by the jury. Lundelius v. Thompson, 461 S.W.2d 153 (Tex.Civ.App.—Austin 1970, writ ref’d n.r. e.). (Emphasis added.) The jury correctly found the issue unfavorable to appellant.
It was the jury’s exclusive prerogative, as the trier of fact, to judge the credibility of the witnesses and the weight to be given their testimony, to resolve conflicts in the testimony of witnesses, to believe part of a witness testimony or disregard it. Royal v. Cameron, supra; Diaz v. Cantu, 586 S.W.2d 576, 580 (Tex.Civ.App.—Corpus Christi 1979, writ ref’d n.r.e.). An appellate court cannot substitute its judgment for that of the jury, even though after reviewing the evidence it may have reached a different conclusion from that of the trier of fact. Johnson v. Buck, 540 S.W.2d 393 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n.r.e.).
On the assignment that there was no evidence to support the jury’s findings, the reviewing court considers only the evidence favorable to the verdict and judgment and must sustain the verdict and judgment if there is evidence of probative force to support it. Freeman v. Texas Compensation Insurance Co., 603 S.W.2d 186, 191 (Tex.1980). Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). The whole record has been reviewed and there is more than sufficient evidence to support the jury’s findings and verdict. Accordingly, I would affirm the judgment of the trial court.