Ricker v. Murphy

LETT, J. (-after stating the facts as above). The appellants challenge the sufficiency of the evidence to support a finding of adverse possession of the entire tract of land, coextensive with the boundaries of the deed, under the five years’ statute of limitations. The appellants, as the court determined,^ holding the legal title to the land under the patentee, the constructive, possession of the land was in them, and this constructive possession would remain with them as holders of the fee until some hostile act, amounting in .law to an act of ouster, destroys this character of possession. Murphy v. Welder, 58 Tex. 235. The mere fact that appellees had a deed, even color of title, did not dispense with the necessity of a possession which is in some way hostile or adverse or entirely inconsistent with the claim of the true owner. Word v. Box, 66 Tex. 596, 3 S. W. 93. Except so far as pertains peculiarly to the 10 acres, whereon is located the cabin, there is an absence of any act or circumstances of dominion and control indicating possession that was hostile, exclusive, or entirely -inconsistent with the claim of the true owner. It cannot reasonably be said from anything appearing in the evidence, by act or circumstances, that the possession of Gilbert Lowden was, or was intended to be, coextensive with-the boundaries of the deed to Mrs. M. E. T. Murphy. The mere erection of the cabin is not sufficient; and the occupancy of the cabin, with use^ and possession confined to the 10 acres occupied, in-a way and manner indicating intention to carry the possession no farther than the inclosed part of the land, is not inconsistent with the true owner’s claim to the entire tract. The utmost effect, it is believed, that can be given to the evidence, is that Mr. Atkins rented to Gilbert Lowden a part of the land, with defined limits less than the whole tract, and that Gilbert Lowden entered upon the land under the rental agreement as a tenant of appellees, and cleared and fenced 10 acres and used and occupied the same, making annual crops thereon, for more than five years. Mr. Atkins expressly stated, and it nowhere appears different, “I rented part of the land to Gilbert Lowden.” While the “part of the land rented” is not definitely stated, it was intended-to he such part as Gilbert Lowden cleared and fenced for cultivation. And it was to this particular 10 acres cleared and fenced that Gilbert Low-den, as tenant, confined his possession -for the period of his 'tenancy, more than five years, and not exercising any dominion or control over any other portion of the tract. Whatever may be the right of appellees to the 10 acres, or even more, the right to the entire tract is not shown. The possession of ap-pellees by possession of the tenant Lowden would only be coextensive with the bounds of the lease or rental agreement, and not with the whole tract. Therefore the judgment is reversed, and the cause remanded for another trial.