Juliana de las Fuentes et al. v. C. M. McDonald, 85 Tex. 132

GAINES, Associate Justice. This was an action of trespass to try title, brought by appellants and two other plaintiffs, to recover of appellee a tract of four leagues of land granted by the State by letters patent to Valentin de las Fuentes, “ his heirs or assigns.” Upon a trial before the court a judgment was rendered in favor of each of two of the plaintiffs for an undivided interest in the land and against the other plaintiffs in favor of the defendant. The plaintiffs who lost the suit have appealed.

The trial judge did not prepare formal conclusions of law and fact, but at the request of the parties, filed a brief statement, showing that he gave judgment in favor of defendant against the appellants upon his plea of the statute of limitations of five years. The plaintiffs introduced testimony which showed that they were the heirs of the original grantee. The defendants introduced deeds to one Charles Callaghan to the land in controversy (under which he claimed title by virtue of the statute of limitations of five years), and also the will of Charles Callaghan showing a devise of the grant to him.

The will was admitted to probate in January, 1875, by the clerk of the District Court of Webb County. To the introduction of the will in evidence the plaintiffs objected, upon the ground that the clerk of the District Court had no power to take probate of a will. The court having overruled the objection, its ruling is assigned as error.

The Act of June 2, 1873, amendatory of that of August 15, 1870, “prescribing the mode of proceeding in District Courts in matters of probate,” provided, that the clerks of such courts should have power, among other things, “ to probate wills * * * when there is no contest.” (Acts 1873, 175; 2 Pasch. Dig., art. 5462a, p. 1187.) The judgment admitting the will to probate recites that there was-no contest. But it is insisted; that the Legislature had no power under the then existing Constitution to confer this jurisdiction upon the clerk of the court.

Section 9 of

article 5 of the Constitution of 1869 provides, that “ the said clerks shall exercise such powers and perform such duties appertaining to the estates of deceased persons, lunatics, idiots, minors, and persons of unsound mind, in vacation, as may be prescribed by law; provided, that all contested issues of law and fact shall be determined by the District Court.” If this provision stood alone, the language is clearly broad enough to permit the Legislature to confer the jurisdiction in question. The probate of wills is a matter “ appertaining to the estates of deceased persons.” But it is urged that the language used in

section 7 of the same

article shows that these words were not intended to be used in so comprehensive a sense.

Section 7 contains this provision: “ The District Courts shall also have original and exclusive jurisdiction for the probate of wills; for the appointing of guardians; for the granting of letters testamentary and of administration; for settling the accounts of executors, administrators, and guardians; and for the transaction of all business appertaining to the estates of deceased persons, minors, idiots, lunatics, and persons of unsound mind, and for the settlement, partition, and distribution of such estates, under such rules and regulations as may be prescribed by law.” We understand the contention to be, that the mention both of “ the probate of wills,” and of “ business appertaining to the estates of deceased persons,” shows that the framers of the Constitution did not understand that the former was included in the latter; and that the same words, when found in

section 9, must be construed in the same restricted sense. The argument is certainly plausible. But constitutions, like other written instruments, are not always free from tautology. A striking example is found in both of the sections we have cited, in the use of the words ' ‘ idiots, lunatics, and persons of unsound mind.’ ’ The first two might well have been omitted, since lunatics and idiots are certainly " persons of unsound mind.” This serves to show that the framers of the Constitution, in drawing

section 7, were striving rather to define the powers of the court with great particularity, than to attain either elegance or logical accuracy of diction. At all events, the probate of wills is a business appertaining to the estates of deceased persons; and we think that the latter words, as employed in

section 9, were intended to be construed according to their usual meaning. If the matter of phraseology was thought of at all when the

section was written, the more general terms were alone adopted solely for the sake of brevity. We have no serious doubt about the correctness of this construction. But if our doubts were of a more serious character, we should hesitate long before yielding to a construction which would nullify so many judgments upon which important property rights depend. We conclude that the court did not err in admitting the will. Appellants also complain that the court erred in sustaining the defendant’s plea of the statute of limitation of five years.

It is claimed, that the evidence was insufficient to support the plea in each of the particulars necessary to be shown in order to complete the bar of the statute. In the view we take of the case, we need only to consider the sufficiency of the evidence adduced in order to show adverse possession. Three witnesses testified in behalf of defendant with reference to his possession of the land, and he testified for himself. Their testimony is in substantial accord, and shows the following facts: The boundaries of the land were at one time marked out, but it was never enclosed. It is fit only for grazing purposes.

There have never been any houses upon it. No part ■of it has ever had any enclosures upon it, except small pens made of posts and brush for the purpose of penning sheep. These were renewed every year. The defendant and Callaghan’s heirs were the owners of 65.000 or 80,000 sheep. Their principal ranch was on another tract of land, twenty-three miles distant from the land in controversy. The land was used for “ grazing and lambing purposes.” How many sheep were kept upon it does not appear. One witness states that in 1871 there were 13.000 sheep upon the land. How many were there during other years is not shown.

Another witness says, ' ‘ When we took the sheep off, we alwaj’S left goats on it. The sheep and goats were in charge of shepherds.” Cattle belonging to others were permitted to graze upon the land. The possession, such as it was, was taken by Callaghan in 1871, and seems to have been kept up until the bringing of the suit. There have been several cases decided in this court in which the effort has been made to show an adverse possession of land by merely grazing cattle and horses upon it; but it has uniformly been held that the possession was not sufficient to meet the requirements of the statute. Mason v.

Stapper, 8 S. W. Rep., 598; Sellman v. Hardin, 58 Texas, 86; Andrews v. Marshall, 26 Texas, 212; Murphy v. Welder, 58 Texas, 241. It must be conceded, that in some of these cases were facts as strong in favor of the claim of adverse possession as in the case before us; yet we think them to be sufficient to indicate the rule in this court to be, that the mere occupancy of the land by grazing live-stock upon it, without substantial enclosures or other permanent improvements, as not sufficient to support a plea of limitation under our statutes.

Unenclosed land in this State has ever been treated as commons for grazing purposes, and hence the mere holding of live-stock upon it lias not been deemed such exclusive occupancy as to constitute adverse possession. There must be “an actual occupation of such nature and notoriety as the owner may be presumed to know that there is a possession of the land.” Whitehead v. Foley, 28 Texas, 291. “Otherwise a man may be disseised without Ms knowledge, and the statute of limitations run against him while he has no ground to believe that Ms seisin lias been interrupted.” 4 Mass., 416.

We think the testimony insufficient to show adverse possession, and therefore the judgment must be reversed. We deem it unnecessary to determine other questions presented by the second assignment of error. The judgment is reversed and the cause remanded. Reversed and remanded. Delivered June 3, 1892.