
    LONG v. THOMPSON & TUCKER LUMBER CO.
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 30, 1911.)
    1. Adveese Possession (§ 114) — Nature-Visible and Notorious Possession — Evidence.
    Evidence in trespass to try title held to show that defendant for more than five years had peaceful and notorious possession of part of the land in controversy, claiming the entire tract and paying taxes thereon.
    [Ed. Note. — Eor other cases, see Adverse Possession, Dec. Dig. § 114.]
    2. Adverse Possession (§ 100) — Nature-Constructive Possession.
    Where defendant, who claimed an entire survey of land under color of title, had peaceful and exclusive possession of part' of the land for more than the statutory period and paid taxes upon the whole, he acquired title to the entire survey; his actual possession of part being in constructive possession of the whole.
    [Ed. Note. — Eor other cases, see Adverse Possession, Cent. Dig. §§ 547-574; Dec. Dig. § 100.]
    Appeal from District Court, Trinity County; S. W. Dean, Judge.
    Trespass to try title by John D. Long against the Thompson & Tucker Lumber Company. Erom a judgment for defendant, plaintiff appeals.
    Affirmed.
    Nunn & Nunn and Crow & Phillips, for appellant. Lane, Wolters & Storey, Kenley & Minton, and Wm. A. Vinson, for appellee.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   McMEANS, J.

This is a suit of trespass to try title brought by John D. Long against the appellee, Thompson & Tucker Lumber Company, and Henry Ward to recover the John D. Long 492-acre survey of land in Trinity county. The defendant, Thompson & Tucker Lumber Company, pleaded a general denial, not guilty, and the statutes of limitation of three, five, and ten years, and certain special pleas, which, in the view we take of the ease, need not be set out. An agreed judgment was rendered in favor of Henry Ward for 100 acres of the land in controversy, and, as he is not a party to this appeal, his pleadings were omitted from the record. The case was tried before a jury and resulted in a verdict and judgment for appellee for the land in controversy except the 100 acres recovered by Ward. Erom this judgment the plaintiff, after his motion for new trial had been overruled, has appealed.

The appellant’s second assignment of error is predicated upon the refusal of the court to give his special charge No. 3, which instructed the jury to find for plaintiff against appellee on the issue of limitation. The appellee urges an independent proposition in which it contends that the proof deduced on the issue of five years limitation requires an affirmance of the judgment without regard to the correctness of the rulings of the court below in matters urged in other assignments of error presented by appellant in his brief.

In view of these opposing contentions, we will first consider the evidence bearing on the issue of five years limitation, which was the only period of limitation submitted by the court to the jury. On October 29, 1888, George A. Wright sold the land in controversy to Thompson & Tucker Lumber Company, by deed bearing said date, which was duly acknowledged and recorded in the deed records of Trinity county on November 30,1888. Thompson & Tucker Lumber Company paid all taxes on the land each year from the year of its purchase to the time of filing of this suit, which was December 2, 1908. The sawmill plant of the Thompson & Tucker Lumber Company is situated about one-fourtb of a mile north of the north line of the land in controversy, In 1896, J. M. Thompson, then president of the company, and acting for it, had a pond constructed for the purpose of furnishing water for the mill and for horses and cattle of the company. This pond was several acres in extent, and a portion of it was upon the land in controversy. In the early part of 1897, the Thompson & Tucker Lumber Company inclosed with a fence about 35, 40, or 50 acres of land. This inclosure included the pond and also 25% acres in the northeast corner of the Long survey, and extended over upon the Grandberry survey on the east and another survey upon the north. The purpose of making this inclosure was to make a pasture for the stock owned by the company as well as¡ the milch cows and horses owned by its officers, agents, and employés, and the pasture was kept inclosed and so used for more than ten years consecutively. At the time the fence was built, and continuously since then, the lumber company claimed the Long survey, knew its boundaries, and knew that a part of the inclosure was upon it. The inelosure was for more than five consecutive years after its construction sufficient to keep stock in or out. The testimony is undisputed, and we think it is sufficient to show that the Thompson & Tucker Lumber Company had and held the peaceable and adverse possession of 25% acres in the northeast corner of the John D. Long survey continuously for a period of more than five years prior to the institution of this suit in December, 1908, using and enjoying the same and paying all taxes thereon, claiming the land under a deed duly registered in the county where the land is situated, and that the extent of the inclosure and the character of its use were such as to unmistakably indicate an assertion of claim of exclusive ownership by said lumber company to the entire tract of land described in the deed.

This being true, the actual possession of the lumber company of the 25% acres drew to it the constructive possession of all the land described in the deed. We think, therefore, that no judgment could have been rendered under the testimony other than for the defendant. This conclusion obviates the necessity of passing upon other assignments presented by appellant in his brief, for, if errors in other matters are shown, they are, in view of our conclusion above stated, wholly immaterial to a proper disposition of this case.

The judgment of the court below is affirmed.

Affirmed.  