
    FLEMING v. MISLETOE HEIGHTS LAND CO.
    (Court of Civil Appeals of Texas.
    Dec. 31, 1910.)
    1. Appeal and Error (§ 928) — Record—Presumptions — Special Charges.
    AVhere, in trespass to try title, the statement of facts on appeal stated that it was agreed that plaintiff had connected itself with the sovereignty of the soil by regular chain of title, but there was neither abstract of title in the record, nor any evidence from which it could be determined who plaintiff’s predecessors in title were, or that they were ever in possession of the land, or that they at any time had a tenant who was in possession of any part of it, it could not be presumed in support of special charges that the proof actually showed that one L. ever owned the land, or that O. held the same as his tenant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3749-3754; Dec. Dig. § 92S.j
    2. Trespass to Try Title (§ 45) — Instructions — Assumed Facts.
    AVhere, in trespass to try title, the jury might have found that C.’s use of the land was in recognition of D.’s title, D. having purchased from and been put in possession 'by C., a special charge, assuming that C.’s use of the land about D.’s place for grazing cattle, sheep, or goats was hostile to that of D., was erroneous.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 67; Dec. Dig. § 45.]
    3. Adverse Possession (§ 116) — Instructions — Trespass to Try Title.
    In trespass to try title, a special charge that if D. refrained from making a claim against a railroad company, when it built a line through the land which D. claimed he was holding, or if he consented that S., who was occupying a part of the tract, should make no effort to hold the part occupied by him, when the owner demanded that S. sign a lease admitting that he was holding as a tenant, and D.’s intention was to conceal the fact that he was laying claim to the land in controversy, and that his action was a break in -the adverse and notorious claim of possession required by law to constitute title by limitations, the jury should find for plaintiff, was erroneous, in that D.’s failure to make a claim against the railroad company was not necessarily sufficient _to defeat his right to, hold the land under a claim of limitations, though his purpose was to conceal' the fact of his claim to the land, and also because the recognition of the right of the real owner by S., though assented to by D., could affect only that portion of the land occupied ‘by S. of which the land in controversy formed no part.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 66; Dec. Dig. § 116.]
    Appeal from District Court, Tarrant County; AV. T. Simmons, Judge.
    Trespass to try title by the Misletoe Heights Land Company against Lee Fleming. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    AArray & Mayer, for appellant. R. M. Rowland and Robt. Harrison, for appellee.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   SPEER, J.

This is an action of trespass to try title instituted by appellee to recover from appellant about nine acres of land known as blocks A and B of Misletoe Heights addition to the city of Ft. AVorth. The defendant answered by a plea of not guilty and interposed the statute of limitations of 5 and 10 years. A jury trial resulted in a verdict and judgment for plaintiff, and defendant has appealed.

Complaint is made of the following special charges given at the instance of appellee:

“(2) If the owner of the larger tract of land of which the land now in dispute was a part had a tenant in actual possession of any portion of such larger tract, and at the same time Dougherty was living on the land now in controversy but did not have tbe same actually inclosed and separated by a fence from the rest of said tract, then, while such situation continued, Dougherty’s possession was not ‘exclusive’ within the meaning of that term as used in the court’s main charge.

“(3) If you believe from the evidence that, at any time within the 10 years next preceding the filing of this suit (this suit being filed on the 31st day of January, 190S), Dougherty and Clack were both using the land about Dougherty’s place of residence for the purpose of grazing cattle, sheep, or goats, then you are instructed that such fact destroys the claim that Dougherty held exclusive possession of the land in controversy, and you will find for the plaintiff.

“(4) If you believe from the evidence that Clack was a tenant or representative in charge of the Misletoe Heights addition for H. C. Lowry, or the Misletoe Heights Land Company, and if Dougherty entered upon a portion of said land with the permission of Clack and not in hostility to him, then Dougherty became a tenant by sufferance of the land occupied by him, and his possession was not adverse within the meaning of the law, unless and until he distinctly repudiated such tenancy brought home to Clack, or the owner of the land, either by words or by notorious and unequivocal acts of exclusive ownership, notice that he had repudiated such tenancy.”

“(7) You are instructed that if you believe from the evidence that Dougherty refrained from making a claim against the railroad company, when it built a line of road through the tract of land Dougherty claimed he was holding, or that he consented that Sarsfield, who was occupying a part of the said tract, make no effort to hold the part occupied by him, when the owner thereof demanded that Sarsfield sign a lease, admitting that he was holding as a tenant, and that Dougherty’s intention and purpose in so doing, if he did so do, was to conceal the fact that he was laying claim to the land in controversy, and that his action was a break in the adverse and notorious claim of possession required by law to constitute a title by limitation, you are instructed to return a verdict in favor of the plaintiff.”

In the beginning of the statement of facts, we find this agreement: “It was further agreed that plaintiff had connected itself with the sovereignty of the soil by regular chain of title.” But no abstract of this title appears in the record, nor is there any evidence from which we can ascertain who ap-pellee’s predecessors in title were, or that they were ever in possession of the land in controversy, or that they ever at any time had a tenant who was in possession of the same, or any part of it. It is apparent, therefore, that appellant’s objection to the second, third, and fourth special charges, because of such absence of testimony, is well taken. We cannot assume that the testimony actually showed that H. 0. Lowry ever owned the land, or that Clack held the same as a tenant.

The third special charge is further erroneous in that it assumes that Clack’s use of the land about Dougherty’s place for grazing cattle, sheep, or goats, was hostile to that of Dougherty; whereas, the jury might have-found, under the circumstances, that Clack’s use of the land was in recognition of Dough-erty’s title, Dougherty having purchased from- and been put in possession by Clack.

The seventh special charge is erroneous-for two reasons: First, it is not necessarily true that Dougherty’s failure to make a claim against the railroad company for damages-when it built its line across the land would defeat his right to hold the same by limitation of 10 years, even though his purpose-was to conceal the fact of his claiming the-land; and, second, certainly Sarsfield’s recognition of the rights of the real owner, even though assented to by Dougherty, could affect only that portion of the land occupied' by Sarsfield of which the land in controversy was not a part.

For the error in giving these special charges, the_ judgment is reversed, and the cause remanded.

DUNKLIN, J., not sitting.  