August Titel v. Sherman Garland, 99 Tex. 201

GAINES, Chief Justice. The following is the statement of this case as made by the Court of Civil Appeals: “This is an action of trespass to try title brought by August Titel against Sherman Garland to recover 160 acres of land. The claim of title set up by plaintiff was limitation of ten years. “Defendant answered by plea of not guilty and specially pleaded that plaintiff had under the same possession on which he rests his plea in this case asserted, a claim by ten years’ limitation to 160 acres of the 1-4

section immediately adjoining the land in controversy, for which reason his claim in this case ought not to be heard. “A trial before the court without a jury resulted in a judgment for defendant and plaintiff has appealed. “The record justifies the following fact conclusions: About eighteen years ago plaintiff settled on

section 22 of block 2, W. C. B. B. Co., survey in Harris County, Texas, with the intention of purchasing same from the state. The land and its adjoining sections were open prairie land with unmarked lines and corners. Immediately south of

section 22 lay quarter sections 21 and 23, thus: “Plaintiff proceeded to place improvements on

section 22. In ignorance of true location of the south line of

section 22 he placed his south fence too far south taking in about 12 acres of quarter

section 21 and 11-2 acres of quarter

section 23 in the same enclosure as indicated by the above diagram. About fifteen years prior to the trial plaintiff "had a surveyor named Gillespie to make a survey of

section 22 for the purpose of locating its south line. This survey disclosed that his south fence included 12 acres of

section 21 and 11-2 acres of

section 23 as above indicated. The trial court found that he thereupon claimed the entire quarter

section 21 under this enclosure of a part and the finding is not assailed by appellee. Defendant owns quarter

section 21 but has had no possession of any part of it. “In 1894 Titel again had a survey made of

section 22 to ascertain if Gillespie’s survey was correct and it was in all things verified. For the same purpose he had the land resurveyed about eleven months before the trial, with the same result. It was agreed that if plaintiff was not entitled to the 160 acres he should not have judgment for the part actually enclosed. “The findings of the trial court do not cover the point, but we hold that the evidence is sufficient to authorize a judgment for Titel for the 160 acres in controversy unless he is debarred from asserting the dla-im because of his assertion of a like claim in the suit of Stafford Smith v.

Titel. "The facts upon this point are as follows: Stafford Smith was the owner of quarter

section 23. The same enclosure, under which appellant now claims quarter

section 21 under the ten years statute, also included about 11-2 acres of quarter

section 23 and possession thereof had been maintained for about fifteen years and more than ten years prior to the institution of the suit of Smith v. Titel. “In that case Titel pleaded that he had adverse possession of a part of the quarter section, cultivating, using and enjoying the same, claiming 160 acres thereof for more than ten years prior to the institution of the suit. The claim was not allowed and Smith recovered. Titel filed a motion for rehearing in that cause signed and sworn to by himself in which the claim was reiterated.

It appears without dispute that the basis of his claim was the 11-2 acres included in the enclosure which is made the basis of his claim in this suit. It is true that he had established on Ho. 23 an additional enclosure of about 23 acres, but it was undisputed that it had been in existence only three or four years, when the Smith suit was brought. The foregoing statement is as we think accurate save in one particular. It leaves the inference*that the defendant, Garland, was the owner of only the quarter of

section 21 upon which the plaintiff’s enclosure extended. That this is not correct is shown by the fact that the plaintiff in his petition does not sue for any specific tract of 160 acres, but sues for an undivided interest of 160 acres out of a tract of 640 acres—clearly

section 21—and alleges that the defendant owns the other undivided interest of 480 acres in the section. The plaintiff’s own testimony shows, that he enclosed the 12 acres on

section 21, under the mistaken belief that it was a part of

section 22, which he had bought from the, state. About 1889 he had a survey made by one Gillespie, who reported, that his enclosure extended too far south and encroached upon

section 21. He further testified: “When Mr. Gillespie made this survey fifteen years ago and I found this enclosure on 21 was no part of 22, I let the fence stand and claimed the land; I claimed in that land a hundred and sixty acres.” This is the only testimony we have found as to the nature and extent of his claim. It is clear that up to this time he claimed no land except such as he thought was embraced in

section 22. His claim, so far as the evidence discloses, was a mere mental process, known only to himself. There were no “external circumstances discovering that inward intention.” It would seem that when one purposes to hold the land of another, which he has neither occupied nor enclosed, by virtue of the statute of limitations, it should appear that he has exercised some acts of ownership over some definite part thereof calculated to apprise the owner that he is asserting “a claim of right” thereto, and the extent of that claim. When in this case the plaintiff discovered that his enclosure extended over upon

section 21, there was no change whatever in his conduct. There was nothing but an intention to claim “in that land 160 acres.” What 160 acres, he does not say. So undefined was the limits of the

part claimed that the able counsel, who brought this suit, did not attempt to define its extent, but sued for an undivided 160 acres of the 640 acre "tract. This it seems to us, is to construe the statute as if it was intended to punish the owner of land for permitting a continuous trespass of ten years upon a part of it by depriving him of at least 160 acres of his holding. We are of opinion, that a suit of this character can not be maintained.

The claimant under the statute of limitation should be able to say-not only that “I claimed 160 acres out of that land”—but also that he claimed some specific tract of land either more or less than 160 acres. We think the case is controlled by the principles announced in Bracken v. Jones (63 Texas, 184), and that under the pleadings and evidence no proper judgment could have been rendered, except one for the defendant.

It is true that the Court of Civil Appeals found that the plaintiff would have had title under the statute of limitation of ten years, but for the fact, that in the Smith suit he claimed 160 acres of

section 23 by virtue of the same possession. But the evidence upon the controlling points being undisputed, we think as a matter of law, the defendant was entitled to a judgment. Whether the Court of Civil Appeals were correct as to the effect of the claim made in the Smith case, we need not decide. We conclude that the judgments of the Court of Civil Appeals and of the trial court should be affirmed, and it is accordingly so ordered. Affirmed.