Dargan v. Keystone Mills Co.

WALKER, Chief Justice. This appeal involves the title to 550 acres of land on the Lemuel Smith survey in Montgomery county. The action was in trespass to try title, with Keystone Mills Company and Charles D. Stephens as plaintiffs, and appellants, the heirs of James T. D. Wilson, as defendants. Plaintiffs claimed the land by metes and bounds, pleading their chain of title specially, and specially pleading the several statutes of limitation. James T. D. Wilson held as a remote grantee under the original grantee, and it was the theory of appellants that the subsequent conveyances through which appellees hold were absolutely void because of defects in the description of the land conveyed. The deeds thus attacked by appellants constitute essential links in ap-pellees’ chain of title. On trial to the court without a jury, judgment was for appellees for all the land in controversy. The findings of the court necessarily include the findings for appellees on their pleas of the statutes of limitation of five and ten years. We quote, in substance, from appellees’ brief the. following summary of the testimony on the issues of limitation. Beginning with 1913, appellees held under deeds which appellants conceded on oral argument sufficiently identified the land to support the pleas of limitation. In addition to the 550 acres of land in controversy, these deeds covered 400 acres of land not in controversy on this appeal. It was clearly shown that appellees regularly .assessed and regularly paid the taxes on the land in controversy in strict compliance with the five-year statute of limitation. Appellee Keystone Mills Company received a deed conveying said tract of 950 acres on January 29, 1913, and it was filed for record and recorded on March 21, 1913. In January of that year the company staked out its tramroad from the mill at Waukegan down southward through the Lemuel Smith survey, and as far as the Ilamlett survey. The construction of the mainline tramroad was at once begun and reached and crossed the Smith survey in 1913, one of the witnesses fixing the time as in June, July, or August of that year. In constructing the railroad the company cleared up the right of way, graded the portions • necessary, .built the necessary bridges, laid the cross-ties, and placed thereon 35-pound steel rails, switches, spurs, turnouts, etc. As soon as the railroad was built the company began to cut its timber on the Smith survey and hauled it to the mill over the railroad and, in doing so, at least six trains, and sometimes more, a day, passed over the road at least six days a week, and sometimes on Sunday, continuous and without intermission, until they cut out their timber south of the mill — the last cutting shown to have been in June, 1924. The railroad was dismantled and the rails removed in the fall or winter of that year. During the whole of the period from the beginning of the construction of the railroad in the early part of 1913, until the company stopped the logging operations in June, 1924, it continuously employed two track crews, consisting of from five to seven or more in each crew, using hand cars, in constructing, maintaining, and keeping in repair said railroad. In connection with the operation of said railroad and its trains the company cut and removed all of the timber on its lands in the Lemuel Smith, and Alphonso Steel surveys, as well as other surveys in that vicinity, and, in doing so, constructed or maintained pens or corrals on those lands for the holding and feeding of forty mules and three horses. One of these pens was on the land in controversy in the Smith survey for several years (about two and one-half years). To feed its mules and horses the company built a spur track from the main line and placed *1055 and kept thereon a “feed ear” adjacent to the mule pen (as long as the mule pen was maintained). From the time the company bought the timber from R. D. McDonald (January, 1913) down to the present time, it maintained a caretaker who frequently and continuously patrolled its lands (including the land in controversy) and kept the lines well marked and kept trespassers therefrom. During the period of the logging operations above referred to, the land in controversy, together with the land adjacent thereto, was pine timber land, the chief value thereof being the timber thereon, said lands in that vicinity being very sparsely settled, there being only one family residing on the 3,000 acres owned by the company; one of the witnesses stated that the land in that vicinity was n-ot fit for farming. The testimony shows that from the time it bought the land in controversy and timber thereon, up to the present time, the company claimed the title thereto and assessed and paid the taxes-thereon each year from 1914 to 1932, inclusive, before delinquency; and assessed and paid the taxes on its railroad and appurtenances each year from 1914 to 1924, inclusive, before delinquency. Opinion. This case involves the force and ef-. feet of a possession of the land by appellees through the construction, maintenance, operation, and use of the tramroad across the eastern end of the land in controversy for a period of more than ten years. The construction of a “tramroad possession,” as constituting an adverse possession within the meaning of our statutes of limitation, was fully discussed by the Commission of Appeals in Houston Oil Co. v. Billingsley, 213 S. W. 248, followed by this court in McCarthy v. Houston Oil Co., 221 S. W. 307, 308 and Niles v. Houston Oil Co., 288 S. W. 614. See, also, our opinion in Furlow v. Kirby Lmbr. Co., 53 S.W.(2d) 642, 643. We think the holding of the Commission of Appeals in the Billingsley Case warrants the conclusion that adverse possession evidenced only by the use of the land for tramroad purposes may be sufficient, under certain circumstances, to mature a limitation title. We cite the following attendant circumstances as supporting the tramroad possession: (a) Appel-lees were not mere disseisers or intruders, but entered under a claim of right, evidenced by a chain of title extending back to the original grantee. In Whitehead v. Foley, 28 Tex. 284, it was said: “There is a generally recognized, obvious, and important distinction between possession taken by a mere naked disseizor or intruder — that is, one who enters without claim or color of title — and a possession taken by a person under a colorable title.” (b) From 1913 appellees held under recorded deeds sufficient to give constructive notice to the world that they claimed to the extent of their boundaries, as described in the deeds. 2 Tex. Jur. 182; Holland v. Nance, 102 Tex. 183, 114 S. W. 346. (c) The taxes were regularly assessed and paid by appellees, (d) They marked out and renewed from time to time the boundary lines around this land, kept a watchman who had general supervision of all of their lands, and visited this land regularly for the purpose of keeping off trespassers and of asserting for appellees their claim to the land, (e) Appellees were in actual use and occupancy of all the land about two years or more in cutting off the timber, (f) During the timber cutting period spur tracks were run from the main tram line into the timber for the purpose of removing it. (g) For more than two years during the limitation period appellees maintained upon the land stock pens in which they kept their mules and spur tracks upon which they kept feed cars, etc. (h) Appellees’ testimony would support the conclusion, quoting the testimony of one witness, that “the land was not fit for farming; the sawmill men bought the land, the timber and all; there were few cattle in that section of the country and though the land may have had some other value except for timber, its chief value was for timber.” This conclusion would describe the land generally in the section of country where the land in controversy is situated and, as shown by the general statement given above, there was practically no farming in that section of Montgomery county during the period when appellees were operating their tram line. Under the construction given this character of testimony by the Commission of Appeals in the Billingsley Case, supra, appellees occupied, used, and enjoyed the land for more than ten years for the purposes to which it was primarily adapted, thereby bringing themselves within the rule of adverse possession, as announced in Nona Mills Co. v. Wright, 101 Tex. 23, 102 S. W. 1118, 1121, where it was said: “To constitute adverse possession, the party occupying the land must in some way appropriate the land for some purpose to which it is adapted.” The authorities cited abundantly support the conclusion of the trial court that appellees had perfected their title under both the five and ten years statutes of limitation (Rev. St. 1925, arts. 5509, 5510). It follows that the judgment appealed from should be in all things affirmed, and it is accordingly so ordered. Affirmed.