Wm. M. Rice Institute v. Goolsbee

PLEASANTS, C. J.

This is an action of trespass to try title brought by appellee against appellant to recover a tract of 160 acres of land, a part of the International & Great Northern survey No. 2, Tyler county. The only issue in the case is that of limitation. Appellant has a record title to the International & Great Northern survey before mentioned, and appellee was not entitled to recover the land sued for unless he has acquired title thereto under the 10-year statute of limitation. There was a trial jury in the court below which resulted in a verdict and judgment in favor of plaintiff.

The facts disclosed by the record upon the issue of limitation are as follows: The International & Great Northern survey, of which the land in controversy is a part, lies immediately west of the lower Addison Sapp survey, the west line of the Sapp being the east line of the International & Great Northern survey. Another Addison Sapp survey known as the “upper Addison Sapp” lies immediately north of the lower Sapp and north of that portion of the International & Great Northern in controversy in this suit, the south line of the upper Sapp being the north line of the lower and the 160-acre tract in controversy. In 1879, T. E. Goolsbee, whose wife owned 120 acres of land in the lower Sapp survey adjoining the International & Great Northern survey, went upon the land in controversy, and made improvements thereon and on the adjoining land of his wife. He built a dwelling house just over the line of the Sapp on the land in controversy and within a short distance of its northeast corner, and inclosed and put in a field of about 35 acres on his wife’s land in the Sapp survey. The house was not inclosed with the field, but was in a smaller inclosure of about two acres, not more than three-fourths of which was on the land in controversy. This inclosure was 134 varas from north to south and 80 varas from east to west, and did not at any point extend more than 60 varas over on the land in controversy. Within this small inclosure and on the land in controversy he built a smokehouse, a crib, and a potato house. A few years after he built his dwelling house he made an addition to it which extended over on his wife’s land. He also built a barn and shop on his wife’s land within said inclosure. His orchard and garden were also within said smaller inclosure and included the land upon both surveys. There was a lane or roadway about 40 feet wide between the field and the inclosure around the houses, garden, and orchard. When he made this settlement he knew where the line of the Sapp survey was, and intended to build his house on the International & Great Northern survey for the purpose of acquiring title to 160 acres thereof by limitation. The evidence is sufficient to sustain the finding that more than 10 years before the institution of this suit T. E. Goolsbee had the 160 acres in controversy surveyed and the corners marked and that he continuously claimed this 160 acres for more than 10 years prion to August 16, 1904, when he and his wife conveyed it to appellee. This suit was brought in December, 1904. During all of the 10 years in which T. E. Gools-bee claimed the land, the premises before described were occupied and used by him, or by tenants under him, but no possession, use, or occupancy was shown of any portion of-the land than the small strip before described.

Under its first assignment of error appellant assails the judgment upon the ground that the possession and use by appellee’s vendor, T. E. Goolsbee, of the small portion of the land in controversy before described was not sufficient to give notice to appellant that Goolsbee was claiming 160 acres of its land, and therefore could not, under the 10-year statute of limitation, give Goolsbee constructive adverse possession of that portion of the 160 acres not actually occupied by him. Upon a former appeal of this case a judgment of the court below in favor of plaintiff was reversed and cause remanded. The evidence upon that trial failed to show that T. E. Goolsbee was claiming the specific tract of 160 acres described in the petition during the 10 years of his occupancy of the small portion thereof before described. Rice v. Goolsbee, 45 Tex. Civ. App. 254, 99 S. W. 1031. The question we are now called upon to decide, if presented upon' that appeal, was not passed upon. In the case of Bracken v. Jones, 63 Tex. 184, our Supreme Court held that one could not acquire title by limitation to 160 acres of his neighbor’s adjoining land by inclosing and cultivating with land of his own 4 acres thereof for more than 10 years. The(ground upon which this decision was based was that the inclosure of so small a portion of land with land belonging to the trespasser was not notice to the owner of a claim to any portion of his land outside of such inclosure. In discussing the question Judge Willie says: “It can scarcely be said that in such a case as the present the possession is notorious, visible, and distinct so as to fulfill the requirements of the 10-year section of the statute of limitation. Whilst the true owner is chargeable with a knowledge of the boundaries of his land, he can hardly be affected with notice that a neighbor, who has encroached a few feet upon his tract, is doing so for the purpose of acquiring title to 640 acres of it. 1-Ie would rather impute it to a mistake on the part of the apparent trespasser as to the division line between them. Whilst this might not excuse the party trespassed upon for not asserting his right to the land actually occupied by the trespasser, it would certainly save him from such consequences as the loss of a section of his land. The party encroaching would be entitled to no more than the land actually occupied by him.”

We think the reasoning of Judge Willie in the case cited is applicable to the facts of this case. The possession of T. E. Goolsbee of the small strip of the land in controversy cannot be disassociated from his possession and use of the larger tract owned by his wife, and the facts of this case present prima facie merely a case of a slight encroachment by an adjoining landowner upon the land of his neighoor. Giving full force to the presumption that the owner .knows the location of the boundary lines of his land (a presumption which appears to the writer to be violent when the land is unoccupied and its lines are not marked, and their location can only be fixed by course and distance from marked corners or other known and fixed objects), we do not think the occupancy by Goolsbee of the small strip of land before described should be held sufficient to give notice to the owner of the International & Great Northern survey that such occupant was claiming ICO acres of his land. If the owner of the International & Great Northern survey, knowing the exact location of his line, had gone upon his land and observed that in building his dwelling house Goolsbee had placed it on the line, one portion of the house being on one survey and the remainder on the other, and that the inclosure surrounding said house and the outhouses used in connection therewith were similarly situated — that is, some of them on one survey and some On the other — while the field which formed much the larger portion of the inclosed lands was entirely on the land owned by Goolsbee’s wife, we think such owner would have reasonably concluded that this small encroachment upon his land should be imputed to mistake on the part of Goolsbee as to the exact location of the line of his wife’s land. The case would be different if Goolsbee had not owned and cultivated the larger portion of the land embraced in the inclosure, because in that event the owner of the land in controversy would not have likely been misled as to the purpose and intent of the occupancy of his land by Gools-bee. The encroachment in this ease was much less in extent than that in the case of Bracken v. Jones, supra, and we think the extent of the encroachment, and not the character of the use to which the land covered thereby is put, should determine its sufficiency as notice of adverse claim by constructive possession of land not actually occupied.

It seems to us that the owner of land thus held by a trespasser would be more likely misled by the situation shown by the facts of this case than by an encroachment consisting only of inclosure and cultivation of his land. The fact that the dwelling house was partly on one survey and partly on the other, and that the outhouses used in connection with the home were similarly situated would, we think, naturally lead' such, owner to suppose that the trespasser was on his land by mistake, 'because it would be unreasonable to presume that one claiming land and intending to acquire title thereto by limitation should designedly so place his improvements as to render such intention doubtful. If the claimant’s improvements are designedly placed in this way it should be regarded as an attempt to acquire the land of another by trick or artifice, and the statute should not be made to subserve such purpose. It cannot be said that the possession shown in this case was of that fair, open, and visible character necessary to constitute adverse possession under our statute of limitation, of any portion of the land in controversy outside of appellee’s inclosure. Bracken v. Jones, 63 Tex. 184; Tucker v. Smith, 68 Tex. 473, 3 S. W. 671; Titel v. Garland, 99 Tex. 201, 87 S. W. 1152; Downs v. Powell, 116 S. W. 873.

The evidence in the case being undisputed and the facts fully developed, the judgment of the court below should be reversed, and judgment rendered in favor of appellant for all of the land in controversy except that portion within appellee’s inclosure, and it has been so ordered.

Beversed and rendered.