Vasquez v. Meaders , 156 Tex. 28 ( 1956 )

Mr. Justice Smith

on Rehearing delivered the opinion of the Court.

The respondent has filed his motion for rehearing calling our attention to the fact that the Court of Civil Appeals did not pass upon his Point Three which was an assignment in that court involving the sufficiency of the evidence, and he urges that if the case is to be reversed by this court it must be remanded to the Court of Civil Appeals for consideration of the point over which it has final jurisdiction.

The Court of Civil Appeals held there was no evidence to support an implied finding that petitioner’s possession was of such unequivocal notoriety as to create the presumption that respondent and other record owners of the land had knowledge of the adverse claim of petitioner. That holding includes the lesser holding that the evidence is insufficient to show unequivocal notoriety. Generally, such included holdings require a remand to the trial court. Barker v. Coastal Builders, 153 Texas 540, 271 S.W. 2d 798. However, where the holding of “no evidence” results from an erroneous concept of the law, our policy is to remand to the Court of Civil Appeals for further consideration by that court. Hale v. Texas Employers’ Ins. Ass’n., 150 Texas 215, 239 S.W. 2d 608.

The Court of Civil Appeals’ holding of no evidence in this case resulted from an erroneous concept of the quantum of evidence necessary to prove unequivocal notoriety. Accordingly, the case is remanded to the Court of Civil Appeals for consideration of respondent’s Point Three.

In all other particulars, the respondent’s motion for rehearing is overruled. Respondent’s motion for rehearing is granted in part and overruled in part.

Opinion delivered July 11, 1956.