
    WILLIAMSON et al. v. MILLER-VIDOR LUMBER CO.
    (No. 6872.) 
    
    (Court of Civil Appeals of Texas. Galveston.
    May 17, 1915.
    Rehearing Denied June 24, 1915.)
    1. Adverse Possession <&wkey;112 — Burden of Proof — Pact of Possession.
    In an action to recover land claimed by adverse possession under the 10-year statute of limitations, the burden is on plaintiff to show that he held peaceable and adverse possession of the land, either actually or constructively, for such time as would give him title.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 651, 653, 654, 657-659, 661-663, 665, 666; Dec. Dig. &wkey;>112.]
    2. Adverse Possession &wkey;>100 — Extent of Possession — Boundaries.
    Plaintiffs, in an action to recover land claimed under the 10-year statute of limitations, entered and improved a 12-acre tract within a prior patent, which in turn was included within the patent under which defendants claimed. Plaintiffs’ claim included also a part of the land covered by defendants’ patent, not included within the patent containing the 12-acre lot. Meld, that plaintiffs could not claim beyond the boundaries of the patent, wherein was located the 12-aere lot containing the improvements.
    [Ed. Note. — Por other cases, see Adverse Possession, Cent. Dig. §§ 547-574; Dec. Dig. &wkey;> 100.]
    3. Public Lands <&wkey;176 — Adverse Possession-Prior Acquisition of Title — Prior Patents.
    Plaintiffs, in an action to recover land under claim of adverse possession for 10 years, cannot question the validity of a patent from the state covering part of the land claimed and ex-ecu.tcd before their possession had ripened into title.
    [Ed. Note. — Eor other cases, see Public Lands, Cent. Dig. §§ 571-575; Dee. Dig. &wkey;176.]
    4. Public Lands <&wkey;176 — Validity oe Patent — Who mat Attack.
    Only the state or one holding a prior legal or equitable claim to real estate can set up the illegality in a patent from the state.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 571-575; Dee. Dig. &wkey;176.]
    Appeal from District Court, Jasper County; A. E. Davis, Judge.
    Action by P. P. Williamson and others against the Miller-Vidor Lumber Company, to recover land. From a judgment apportioning the land between the parties, plaintiffs appeal.
    Affirmed.
    John B. Warren, of Houston, for appellants. Townes, Foster & I-Iardwicke, of Beaumont, for appellee.
    
      
       Writ of error pending in Supreme Coart.
    
   LANE, J.

In 1874 one Ingalls, a surveyor, surveyed and located 160 acres of land in Jasper county, known as the Wm. Williamson pre-emption, with its north line running due east and west for a distance of 916 varas and its east line running due north and south for a distance of 846 varas. In 1876 the same surveyor surveyed and located a section of 640 acres of land lying partly in Jasper and partly in Orange counties, known as T. & N. O. survey No. 82. In making this survey, he began at the southeast corner of the T. & N. O. survey No. 81, which was located just north of said survey No. 82, and then ran due south 2,726 varas; thence due west 694 varas to the southeast corner of the said Wm.. Williamson pre-emption; thence due north with the east line of said Williamson pre-emption 846 varas to its northeast comer; thence due west with the north line of said Williamson pre-emption 916 varas to its northwest corner; thence due north 1,880 varas to the southwest corner of T. & N. O. survey No. 81; thence due east with the south line of said T. & N. O. survey No. 81, 1,610 varas to place of beginning. The T. & N. O. survey No. 82, up to the 18th day of May 1901, was public land. On the date last named the said survey No. 82 was patented by the state to one J. W. Sanders. On April 18, 1902, J. D. Sayers, Governor of Texas, conveyed to one Wm. Williams a tract of 130 acres of land, as segregated or detached scrap land, lying just north of the said Wm. Williamson pre-emption, which is bounded as follows: Beginning at the northwest comer of said Williamson pre-emption; thence due east 916 varas with the north line of the said Williamson preemption to its northeast corner; thence due north 800 varas for comer; thence due west 810 varas for corner; thence due south 800 varas to beginning. This last-named tract is embraced within the designated boundaries of said survey No. 82 patented to said J. W. Sanders, which is now claimed by the Miller-Vidor Lumber Company, appellees herein. At some time between’ 1896 and 1900 P. P. Williamson, appellant herein, took possession of and improved and inclosed some 10 or 11 acres of land lying about 600 or 700 varas north of the Williamson pre-emption and about 700 varas east of the west line of said survey No. 82, and which was, at the time he took possession thereof, wholly within the boundary line of said survey No. 82, as originally located, and as later described in the patent to Sanders. All of the improvements of said P. P. Williamson which were placed on said land for more than 10 years next prior to the filing of this suit was wholly within the boundaries of the Wm. Williams 130-acre tract. Por a better understanding of the location of the various tracts of land above described and the location of the improvements of the appellant Williamson, we attach hereto a map or plat of said land, to wit:

Assuming as correct the location of the surreys as platted above, we have marked in dotted lines the location of the land sued for by appellants as described in their petition. The cross mark indicates so much of the land sued for as is embraced within the boundaries of the Wm. Williams survey. The location of the improvements of the plaintiffs Williamson are indicated by the square on the plat.

Appellants P. P. Williamson and wife, E. I. Williamson, and R. C. Conn, brought this suit against the Miller-Vidor Lumber Company on the 15th day of March, 1913. Appellants Williamson by said suit seek to recover from said lumber company title to tbe 160 acres of land described in tbeir petition, and shown by tbe dotted lines on tbe plat above. They base tbeir right to sucb recovery on tbeir plea of 10-year statute of limitation. Tbey pray for judgment for tbe 160 acres of land described in tbeir petition, but that, in tbe event tbe court should find that sucb recovery would not be an equitable partition between them and defendant, then tbey pray that tbe court appoint commissioners to make partition between said parties, and that said commissioners be directed to survey out and describe 160 acres of land out of tbe T. & N. O. survey No. 82 for them so as to include tbeir improvements, which would be equitable to all parties.

Plaintiff! R. O. Oonn sues to recover tbe growing timber on tlie land in question as a purchaser thereof from Williamson; and hence bis right to recover herein depends entirely upon tbe recovery of Williamson.

Defendants Miller-Yidor Lumber Company answered: First, by plea in abatement because of misjoinder of causes of action and parties; second, by general denial; and, third, by its trial amendment as follows:

“Comes now Miller-Vidor Lumber Company and with leave of the court files this its trial amendment and shows: That it does not claim: and has never claimed any of the land embraced within the boundaries of the Wm. Williams survey, partly in Orange and partly in Jasper county, Tex., as described in the patent thereto, issued to said Williams April 18, 1902, patent No. 439, volume 23, and defendant now disclaims said land. Defendant prays that this be considered a part of its first amended original answer.”

Upon these pleadings tbe case was tried before a jury. After both parties bad closed tbeir evidence, tbe court, upon motion of defendant, instructed tbe jury as follows:

“You are instructed to find for the defendants Miller-Vidor Lumber Company, the Texas & New Orleans Railroad section No. 82, and for the plaintiffs P. P. Williamson and E. I. Williamson, for all of the land sued for by plaintiffs situated on the Wm. Williams survey, and you will further find for the plaintiff R. C. Conn all the pine timber situated on the land sued for by plaintiffs P. P. Williamson and E. I. Williamson situated on the William Williams survey.”

Upon the foregoing instructions tbe jury returned tbe following verdict:

“We, the jury, find in favor of the plaintiffs X’. P. Williamson and E. I. Williamson for all the land sued for that is included in the bounds of the W. W. Williams survey of 130 acres of land, patent No. 439, volume 23. We also find for defendant the Miller-Vidor Lumber Company all of the land and timber on section No. 82, patent No. 267, volume 2, that is not on the W. Williams survey and claimed by the defendants in tbeir petition. We also find for plaintiff R. C. Conn for the pine timber on the land above awarded to plaintiffs Williamson.”

Upon this verdict the court entered judgment for plaintiffs Williamson for sucb portion of tbe land as sued for by them as is included in tbe boundaries of tbe Williams survey of 130 acres, and for tbe defendant Miller-Vidor Lumber Company all tbe land included within tbe boundaries of tbe said T. & N. O. survey No. 82, except sucn as is included in tbe boundaries of tbe said Williams survey, and for plaintiff Conn tbe pine timber on tbe land awarded to tbe William-sons.

From this judgment, plaintiffs have appealed.

Tbe effect of tbe first, second, third, fourth, and fifth assignments of error is that tbe trial court erred in instructing tbe jury as to its verdict upon motion of defendants: First.- Because there was evidence sufficient to require tbe court to submit to tbe jury tbe question as to whether tbe plaintiffs bad acquired title to the land sued for by the statute of limitation of 10 years. Second. Because there was evidence tending to show that plaintiffs bad acquired title to 160 acres of land, including tbeir improvements, and were entitled to have tbe jury locate tbe same for them or to have tbe same located by commissioners appointed by tbe court. Third. Because tbe undisputed evidence showed that plaintiffs held peaceable and adverse possession of the land sued for, claiming tbe same as their own for 10 years prior to tbe institution of this suit; that the title to tbe land sued for bad passed from tbe state at tbe time plaintiffs took possession of same, and that tbe fact that subsequently tbe state conveyed to Wm. Williams 130 acres of a larger body of patented land, which said 130 acres included in its boundaries tbe whole of plaintiffs’ improvements, would not confine plaintiffs’ claim of title by limitation within tbe boundaries of said 130 acres conveyed to said Williams. Fourth and fifth. That tbe undisputed evidence shows that plaintiffs bad held adverse and peaceable possession of tbe 160 acres of land claimed by them for more than 10 years prior to tbe institution of tbe suit.

We find: First. That there is no evidence tending to show that plaintiffs claimed or held any portion of tbe land sued for, except about 10 or 12 acres upon which their bouses, lots, and fields are situated for a term of 10 years prior to bringing this suit, and that all of said improvements are within tbe boundaries of tbe Wm. Williams survey, and within that portion of said survey shown by the cross marks in the plat or map above; that a small part of the old field of tbe original improvements is not included within tbe boundaries of tbe land sued for, nor was about 40 acres of tbe land which tbey bad inclosed in tbeir pasture for four or five years so included. Second. That some time prior to May 18,1901, plaintiffs built bouses, lots, and small fields upon about 10 or 12 acres of land within the boundaries of tbe T. & N. O. survey No. 82, and moved thereon, and that tbey have so resided ever since; that on said 18th day of May, 1901, tbe state of Texas patented all of said survey No. 82 to J. W. Sanders; that on tbe 18th day of April, 1902, J. D. Sayers, Governor of Texas, conveyed to one Williams the tract of 130 acres shown on the plat above, which is taken from the said survey No. 82 as patented to Sanders; that plaintiffs’ original improvements are all situated on said Williams survey; that up to or about January 2, 1913, at which time plaintiffs conveyed certain timber to R. O. Oonn, they never claimed any certain part of said survey No. 82 and up to about 4 or 5 years prior to bringing this suit had only 10 or 12 acres in their possession; that about 4 or 5 years prior to bringing this suit they built a fence around about 65 acres of said survey No. 82, about one-third only of which is embraced in the boundaries of the land sued for; that by this suit and the answer filed by them in cause No. 3315, styled Miller-Yidor Lumber Go. v. Williamson, in the district court of Orange county, in the early part of 1914, plaintiffs abandoned and disclaimed any former claim they had to any portion of said survey No. 82, except that part which is described in their petition in this suit. We also find that the evidence shows that, prior to bringing this suit, appellants never openly or adversely claimed any portion of said survey No. 82 outside the boundaries of the Wm. Williams survey, and that up to or about that date they had never asserted title or claim to any part of the land described in their petition, except that part shown in cross- marks on above plat, which consisted of about 10 or 12 acres, wholly on the Williams survey. Third. That as plaintiffs were suing to recover title to 160 acres of land, under the statute of limitation, the burden of showing that they had held peaceable and adverse possession of some certain land either actually or constructively for such time as would give them title, was upon them, and that there was no such showing made in this case.

We conclude that as plaintiffs were upon the land covered by their original improvements, consisting of about 10 or 12 acres only, which was wholly on the Williams survey of 130 acres, they cannot claim beyond the boundaries of said Williams survey, and, as they were mere trespassers upon the land, they were not in a position to question the validity of the conveyance of the state of Texas to Williams, and as their possession had not ripened into a title by time, prior to such conveyance to Williams, they cannot question its validity. They cannot be heard to say to the state that, if you had not conveyed this land to Williams, we would have been entitled to recover a larger tract from Miller-Vidor Lumber Company on our plea of limitation, and therefore we question your authority to make said conveyance.

Since the land was patented by the state to Williams, the legal title passed to the patentee, and no one but the state or some one holding a prior legal or equitable claim could set up the illegality of the patent to Williams. See McLeary v. Dawson, 87 Tex. 524, 29 S. W. 1044; Dawson v. McLeary, 25 S. W. 705; Gullett v. O’Connor, 54 Tex. 416; Decourt v. Sproul, 66 Tex. 368, 1 S. W. 337; Yarbrough v. De Martin, 28 Tex. Civ. App. 276, 67 S. W. 177.

For the reasons above stated, we conclude that the court did not err in giving the instructions complained of in appellants’ assignments 1, 2, 3, 4, and 5. They are therefore overruled.

Appellant’s sixth assignment insists that the title to the land lying west and south of the land awarded to appellants was in issue, and, as the judgment rendered did not dispose of such issue, such judgment is void. There is no merit in such contention. Appellants sued for the land described in their petition after having abandoned and disclaimed any title to any other land on said survey No. 82, as described in the patent to Sanders, and appellee had specially disclaimed as to the land referred to in said assignment, and therefore the title to same was not in issue in this suit. We therefore overrule said sixth assignment.

We have examined appellants’ seventh assignment and overrule same.

We also overrule appellants’ ninth assignment, which insists that the court erred in overruling appellants’ motion to retax the costs, all of which was taxed against appellants.

We find no such error committed in the trial of this cause in the court below, if any, as should cause the reversal of judgment of the trial court, and therefore said judgment is affirmed.

Affirmed. 
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