Smith v. Lancaster , 248 S.W. 472 ( 1923 )

The court decreed an easement for railway purposes across the lot to the width of the railway roadbed, which was 15 feet. The appellant contends that such decree was erroneous because (1) the evidence does not show that the appellee and those under whom it claims had and used the right of way continuously and without intermission for 10 consecutive years before the suit was filed, (2) the evidence does not show that the appellant was not, at any time during the period of adverse user and possession, under any disability which prevented the running of the statute of limitation, and (3) the evidence shows that the appellant's cause of action did not accrue until the will was probated in 1920. We think the assignments should be overruled.

The case of Hays v. Railway Co., 62 Tex. 397, was a suit of trespass to try title, wherein the owner of the land recovered the title to the same subject to the right of the defendant to enjoy the easement. There the principle was stated that —

"A party in possession of another's land claiming an easement is a trespasser if his claim is without foundation. If, in a suit by the owner of the soil, the plaintiff shows title to the land, and the defendant to the easement, the plaintiff recovers subject to the right of the defendant to enjoy the easement. If the defendant shows no title of this character the owner of the land dispossesses him altogether."

A "title of this character," meaning the right to have and enjoy the easement, is shown, as has been decided, where the railway company has had adverse use and occupation, continuous and uninterrupted, for the statutory period of 10 years. Shepard v. Railway Co., 2 Tex. Civ. App. 535,22 S.W. 267; Capps v. Railway Co., 21 Tex. Civ. App. 84, 50 S.W. 643; 1 Elliott on Railroads, § 401. See, also, Baker v. Brown, 55 Tex. 377; Compton v. Waco Bridge Co., 62 Tex. 722; Click v. Lamar County,79 Tex. 124, 14 S.W. 1048. "Ten years in this state," as stated in Haas v. Choussard, 17 Tex. 588, "would afford the same presumption of a grant, that twenty years would in England, and in other states, having the like limitation as to real actions."

"The burden of proof," though, as laid down in Railway Co. v. Wilson,83 Tex. 153, 18 S.W. 325, "is upon the party claiming an easement in the land of another, without any contract or express grant thereto, to establish all the necessary facts from which the right may be presumed in his favor. He must clearly show open and peaceable possession for the full period required under the statute to preclude a recovery of land against one having no other title, and with at least the implied acquiescence of the owner, and that during all of such time the use and enjoyment of the right has been exclusive, uninterrupted, and continuous, and under a claim of right adversely to the owner of the fee. If there is a failure to establish any of those essential elements by a preponderance of evidence, the claim to the easement cannot be maintained." Also "the burden of proof," it seems to be settled, "rests upon the one asserting a right of way over another's land by prescription to establish the negative fact" that the owner of the tract of land against which the prescriptive right is claimed was "free from legal disability during the prescriptive period," and "against whom a right by limitation could be acquired by adverse use." City of Austin v. Hall,93 Tex. 591, 57 S.W. 563; West v. City of Houston, 163 S.W. 679.

In the instant case there is involved in the court's decree the finding of fact, having evidence, we think, to support it, that the Texas Pacific Railway Company and its predecessors have used the strip of land for a roadbed and track in operating trains over it since 1903 to the bringing of the suit in November, 1922. And it appears that during all that period of time there was open and notorious possession and use by the railway companies under a claim of right adverse to the owner of the fee. In these facts apparently there would be a continuous use and enjoyment of the strip of land for railway purposes for 19 years, but it cannot be said that at the inception and during all that period of user of the right of way limitation would run, or a prescriptive right be acquired by adverse use. For, as the record appears, it could not be said that the appellant was "free from legal disability" during all the 19 years. By inference authorized to be drawn the appellant was not older than 21 years of age on September 30, 1908, nor over 35 years old at the time he filed the suit in November, 1922, assuming that he was one day old when his father died on October 1, 1887. In 1910 the appellant was, as appears, over 21 years old; and the period of limitation would be complete in 1920, which date was before the filing of the suit. It was in 1910 that, as is shown, the Marshall East Texas Railway Company, under decrees of condemnation, used, continuously and uninterruptedly, the strip of land for railway purposes. The use of the strip for railway purposes was such as, in the evidence, to clearly show that it was adverse to appellant's claim of ownership, and not under a mere permissive right or privilege from appellant.

The "disability" that appellees were called on to affirmatively negative was, we think, that of minority only. The "disability of insanity and of imprisonment was not required to be affirmatively shown to not exist. Insanity and imprisonment are, unlike minority, only exceptional occurrences in the lives and experiences of mankind, and it is on this account that it is a presumption of law that all men are sane and that they obey the laws. This presumption would obtain in this record, there being no evidence to show to the contrary.

The point should, we think, be overruled that the appellant's cause of action did not arise until the will was probated in 1920. There is no dispute in respect to the fact that the life tenant died in 1890, and that the will devised the fee in the land to the appellant. Under the statute the owner or claimant of the land is required, in order to avoid the statute of limitation, to "institute his suit" against one in adverse possession of the land "within 10 years next after this cause of action shall have accrued." The owner can "not afterward" bring the suit, as the language of the article states. Rev.St. art. 5675. And, according to the terms of the article, "his cause of action shall have accrued" when the adverse possession of the other person commences. There are excepted from the operation of this article of limitation such persons only who are under the legal disabilities of coverture, infancy, insanity, and imprisonment. Article 5684. The statute nowhere provides that the running of the statute will be delayed until a will is probated; and, moreover, it is the settled rule that an estate by devise takes effect immediately upon the death of the testator unless otherwise directed, and that the title of the devisee is not affected by the delay in probating the will. Long v. Shelton (Tex. Civ. App.) 155 S.W. 945. It is true that a will cannot be used as evidence of title, in view of the provisions of the statute until after it is probated in the manner and form prescribed by the law. Ochoa v. Miller, 59 Tex. 460; Moursund v. Priess, 84 Tex. 556, 19 S.W. 775. But the existence of a cause of action is not dependent on the availability of means for its enforcement. A cause of action may exist between parties who are unable to maintain the action for lack of testimony, or between parties who cannot be reached by a common jurisdiction. The will could legally have been probated at the death of the testator; and the fact that it was not done, from whatever cause, until 1920, would not rest upon a legal prohibition or excuse against its being probated earlier. Therefore it cannot be legally said, we conclude, that the cause of action in this suit did not arise before and until the will was probated.

The judgment is affirmed.