A. L. Green and his wife, Lucile Hood, Elorine Hood, and John R. Hood, as plaintiffs, brought this suit against Mrs. Lula Cass and Milam County Lumber Company, in trespass to try title, seeking to recover a 10-foot alley, and have it restored to its use as such, and to recover its rental value; or, in the alternative, the damages sustained by the plaintiffs on account of the obstruction of the alley by the defendants.
Mrs. Cass filed a plea of not guilty, and pleaded the 5 and 10 years’ statutes of limitation, and sought to have the alley located and opened on and along a strip of land different from that sued for by the plaintiffs, and upon land claimed by the latter. The other defendant filed a disclaimer.
In its charge to the jury, the trial court defined and explained the 10-year statute of limitation, and then submitted to the jury two special issues, which were:
“(1) Is the plaintiffs’ cause of action for the recovery of the. land sued for barred by the statute of 10-year limitation? Answer Yes or No.”
“(2) What is the reasonable value per an-num, if any, to the plaintiffs A. L. Green and Fannie A. Green, for the use as an alley of a strip of land lying between the fence on the 'north of their property and the south line of the Cass property?”
The jury were also instructed that upon the first issue submitted the burden of proof rested upon the defendant Mrs. Cass, and that upon the second issue the burden of proof rested upon the plaintiffs A. L. Green and his wife. The jury gave a negative answer to the first issue, and $25 per annum *939as their answer to the second issue; and the court rendered judgment in favor of the plaintiffs against the defendants, who were contesting their right to recover, for the recovery of the strip of land sued for by plaintiffs for use as an alley, and for the sum of $95.88, for the value of the use to the plaintiffs of the strip of land as an alley for 3 years and 10 months, the period of time which had elapsed between the commencement of the suit and the trial; and the defendants referred to have appealed.
The property in controversy is part of what is known as lot No. 3, in the city of Cameron. Both parties claim under John W. Hood and his wife; the defendants’ title being the older. The deed from the Hoods to N. Cass, under whom the defendants claim, describes their property as being a part of lot No. 3, and beginning at the northeast corner; thence running south 71° west 90 feet to a corner; thence west 210 feet to the west line of the lot; thence north along the west line 90 feet to corner on Belton street, same being the northwest corner of lot No. 3; thence east along the north line of lot No. 3, 210 feet to the place of beginning, the same being 90x210 feet. The deed also contains the stipulation that an alley 10 feet in width is to be left open for all time between the land conveyed to N. Cass and the balance of lot No. 3. The deed referred to is dated July 20, 1889, and was duly recorded ‘October 12, 1891.
The plaintiffs claim title under subsequent deeds from the heirs of John W. Hood and his wife; and, while they concede the existence of the alley stipulated for in the deed under which the defendants claim, their contention is that the defendants have taken possession and deprived the plaintiffs of the use of the alley. Evidence was presented tending to show the existence of a fence run-. ning through the block from east to west, and near the center thereof'; and the defendants contend that their south line extends to that fence, and that the alley in question should be located south of the fence. The plaintiffs contend that the defendants’ south line does not extend to the fence referred to, but stops 10 feet short thereof, and that the intervening space constitutes the • alley in question. Without discussing in detail the various assignments of error, we hold that the testimony raised an issué of boundary, and that the trial court committed error •when it refused to submit that issue to the jury, as requested by the defendants.
There was testimony tending to show that a fence was built at the place referred to soon after the Hoods sold to IDr. N. Cass; and there was also evidence tending to show that the Hoods left the alley open on the south side of that fence, and that Dr. Cass and Mrs. Cass, his surviving wife, who holds under him, and the other defendants -who are her tenants have used all of lot No. 3 located north of that line. There was also some testimony tending to show that encroachments had been made by the property owners on the south side of the street upon which lot No. 3 fronted. The testimony referred to tended to show that the true south boundary line of the defendants’ property might be further south than 90 feet from what is now regarded as the south line of the street in front of that property; and it also tended to show that the Hoods and N. Cass had agreed that the south line of the Cass property should be where the old fence was located; and therefore we hold that the court should have submitted to the jury, under proper instructions, and required a finding as to the true location of the south boundary line of the defendants’ property.
We also hold that the trial court should have given appellants’ requested instruction, placing a limitation upon the testimony of the witnesses Elberf Blood and Otto Zavisch, as complained of in the seventh assignment of error.
Appellants’ third requested instruction, by which it was sought to apply the 10-year statute of limitation more directly to the case as developed by the testimony than was done in the court’s charge, should have been given, unless it was materially defective because it did not require a finding of use and enjoyment, which is part of the statutory definition of limitation. If a similar charge with that omission supplied should be asked at another trial, we think the court should give it.
We hdid that no error was committed by the court in reference to the question of 5-year statute of limitation. Limitation under that statute is available only when the party asserting it claims under a deed purporting to convey the property. Upon its face, the deed under which Mrs. Gass claims does not purport to extend more than 90 feet from the street upon which it fronts, and unless it is shown by testimony that at the time that deed was made the line of the street was located further north, or that the parties agreed upon a line further than 90 feet from the street as constituting the south line of the Gass property, the land asserted by the plaintiffs to constitute the alley was not included in the deed from the Hoods to N. Cass, and that is the deed under which it is sought to render available the 5-year statute of limitation. If upon another trial the jury should determine that the south lino of the Gass property is where Mrs. Gass claims it to.be, then she will show title to the strip of'land which plaintiffs claim is the alley in question, and she will not need any statute of limitation to bolster her claim.
Some other questions are presented in appellants’ brief, all of which have been duly considered and are decided in favor of ap-pellees. However, we suggest that upon another trial the court should submit to the *940jury clearly and distinctly, and require them to find the amount of damage, if any, which plaintiffs have sustained because of the defendants’ obstruction of the alley, if the jury find that it is located where the plaintiffs contend it is.
On account of the errors heretofore pointed out, the judgment of the court is reversed, and the cause remanded.
Reversed and remanded.