McDow v. Rabb , 1882 Tex. LEXIS 12 ( 1882 )

Delany, J. Com. App.

In his charge the judge, after stating that the legal title was in the- plaintiff, proceeds as follows: “ Defendant shows no written muniment of title in A. E. Gates, but contends that such a deed should be presumed from long length of possession of the land, and the declarations of John Rabb. Possession, to justify such a presumption, must be actual and notorious for a period of more than ten years; the mere cutting of timber would not constitute such possession.” This is assigned as error, and we think correctly. The charge is perhaps not objectionable as an abstract proposition, except that it rather vaguely uses the expression “ more than ten years.” But it is not applicable to the case made by the proof. There was certainly much more proved than the mere cutting of timber. There was an open, visible, habitual appropriation of the timber for a series of years — indeed as long as there was timber to appropriate. This was done under an avowed claim of title, accompanied by the assessment of the land as the property of Gates, and the payment of taxes upon it by him. When the timber was exhausted, he, in 1800, fenced the land, put it in cultivation, and continued to cultivate it until his death in 1863; and the cultivation was continued by his executor until the fences were swept away in 1869.

These things were done under the very eyes of ,John Eabb, who for several years was living within half a mile of the land, and at no time more than six miles away, until his removal from the county in 1869. Besides this positive proof, there is strong negative evidence which can hardly be overlooked. There is not a circumstance stated in the record from which we can infer that after the year 1852 John Rabb ever claimed the land, or exercised any act of ownership over it, or paid any taxes upon it. These two neighbors appear to have been friends through life, and the charabter of Gates, as it is exhibited by one of the plaintiff’s witnesses, renders it extremely improbable that he would have trespassed upon his neighbor’s property. This witness, upon his cross-examination, testified that he was Gates’ overseer for a term of four years, commencing in 1854; that he, under Gates’ orders, constantly used the timber for the plantation, sometimes having as many as ten hands on the land at a time making rails, and never .suspecting that any one else than Gates had any claim to the land. Considering all these circumstances, together with the declaration of John Rabb in 1858 that he had sold the land to Gates, and without noticing the character of the two deeds made to plaintiff in 1874, we think the court should have instructed the jtiry that they might presume a conveyance from Rabb to Gates. Dailey v. Starr, 26 Tex., 462, is hardly a stronger case than this. In that case the judge instructed the jury that “a, power to sell would be presumed.” They so found, and the supreme court affirmed a judgment rendered upon that verdict. We have had some difficulty in determining whether the court erred in excluding the declarations of Gates that he had bought the land from Rabb. Ordinarily, whenever it becomes important to prove that a man did any act, whatever he may have said about the act while it was being done is admissible as part of the act. 1 Greenl., 108-9. But this rule should not be unnecessarily extended, as it may enable a party to make evidence for himself in the absence of his adversary. Without discussing the matter further, we conclude that the court did not err in excluding these declarations.

The charge of the court upon the statute of limitation is .assigned, as error. The judge, after quoting the statute (Pasch. Dig., art. 4624), says: “The possession here referred to is actual, open and notorious. The mere cutting of timber is not such possession.” We have already said that the proof shows much more than the mere use of the timber. The charge asked by the defendants, and refused, is as follows: “To constitute such adverse possession, there need not be a fence, building or improvement made; but it is sufficient for the defendants to show that they, and those under whom they claim, have exercised visible and notorious acts of ownership over the premises in controversy for the time limited by the statute.’

The language of the statute is “ peaceable possession, and cultivation, use or enjoyment thereof.” In the preceding section, which limits the time to five years, the statute, in addition to these requirements, demands a deed duly recorded and the payment of taxes. In the section next preceding the last, limiting the time to three years, the statute demands possession and, at the least, a consecutive chain of title from the government down to the occupant. Thus we see that as the time is extended the statute becomes less exacting; but possession is required in every instance, and our courts have held that this means an actual possession. But the difficulty still remains of determining what is the meaning of the words “actual possession.” So far as I know, our supreme court has not determined what acts shall constitute this possession. In Whitehead v. Foley, 28 Tex., 285, Justice Wheeler says: “Ho general definition short of the assertion of a merely arbitrary rule can relieve the question of difficulty in its application to particular cases. ‘ Actual, visible and substantial inclosure is decisive proof of such disseizin and of the limits of it.’ Angel on Lim., 395 and notes. But there are many cases which hold that an inclosure is not essential to constitute an actual possession”—citing a number of cases. -

In Steagall v. Huff, 54 Tex., 197, Justice Bonner says: “ Without deciding that a case might not arise in which there would be such adverse possession and enjoyment of the land by the use of the timber thereon as would support the statute of limitation, we are of opinion that the occasional use of the land for timber purposes, without actual residence upon or cultivation of any part of it, as shown by the testimony in this case, was not such open, notorious and visible occupation as would constitute that adverse possession, use or enjoyment by which the presumption of notice and acquiescence upon the part of the true owner would arise to bar his right.”

This was said in reference to the statute of five years. Again, do the words “actual possession” have the same meaning when we apply them to the long as to the short terms of limitation ? It is certain that other words similarly applied do not have the same meaning in the different cases. The phrase “ color of title,” when used with reference to the limitation of three years, means one thing, but when applied to that of ten years it means a very different thing. A void deed or will is worthless in the one case but available in the other. Charle v. Saffold, 13 Tex., 94; Wofford v. McKenna, 23 Tex., 36; Kilpatrick v. Sisneros, 23 Tex., 114.

A too strict construction might render it impossible to acquire some kinds of real estate by prescription. It might be very difficult, perhaps impossible, to build upon a sand bank, or to inclose a rock quarry, or to cultivate a forest. But when a man, under an open, avowed claim of title, enters regularly into the business of selling sand from the bank, or rock from the quarry, and this is continued for the length of time required by the statute, this has been thought sufficient.

In the case before us the possession of Gates from 1852 to 1869 might perhaps be thought sufficient to satisfy the demands of the statute. But the statute was suspended from January, 1861, to March 30, 1870. Wood v. Welder, 42 Tex., 396.

[Opinion delivered January 30, 1882.]

From 1869 to 1874 the grasp of defendants upon the property was much less firm than before, and the ten years cannot be made out unless we hold that the payment of taxes during this latter period, together with the open claim of title and the control of the property, would be sufficient. This we are not prepared to do, though authorities are not wanting which would seem to justify it.

We think the court erred in holding that defendants could not avail themselves of the defense of estoppel without pleading it specially. Mayer v. Ramsey, 46 Tex., 371; Wright v. Doherty, 50 Tex., 34. The error,, however, is immaterial, as we do not think plaintiff ought to be estopped by the remark made by his father, John Rabb, to McDow in 1858, that he had sold the land to Gates. It was a mere casual remark, dropped in the course of a negotiation about other property. It was not made to influence the action of McDow, and there could have been no reasonable expectation at the time" that it would do so. Williams v. Chandler, 25 Tex., 11.

We conclude that the judgment should be reversed and the cause remanded.

Reversed and remanded.