Holden v. Boynton ( 1943 )

On Motion for Rehearing.

Upon rehearing appellants contend that as Smith went into possession of the tract of land in controversy under the English claimants, his subsequent attornment to the Dobson claimants was without effect.

This contention, of course, assumes that Smith went into possession of the lands in controversy under the English claimants. This assumption is unwarranted. As pointed out in the original opinion, the trial court found that the fence between the tract here involved and the balance of the property owned by the Dobson estate was during a major portion of the time since the judgment of 1930, in such shape that live stock could and did pass over the fences at will. It follows that Smith’s use of the premises for grazing purposes did not amount to possession under the limitation statutes, for “if the land was used * * * merely for grazing purposes, it must be shown that the tract was enclosed.” 2 Tex.Jur. 91.

This being the situation relating to Smith’s so-called possession at the time he secured a lease from Boynton, his use of the premises thereafter must be considered as being in accordance with the record title and certainly not adverse thereto.

The situation detailed as to Smith’s use of the disputed tract is similar to that disclosed by the record in regard to another tenant, Joe Amberson, who after the expiration of Smith’s tenure also acquired leases from both the English and Dobson claimants. Amberson testified that he did not claim possession or the right to use the tract of land in dispute under the lease from the English claimants, as it was not described therein. Amberson’s use of the premises, like Smith’s was not adverse to the record title of the Dobson claimants.

Appellants’ motion for rehearing is overruled.