WILLIAM D. WINSTON, GILBERT M. SPRING, AND WILLIAM DREW PERKINS v. SABINE RIVER VALLEY MORTGAGE ASSOCIATION, INC.--Appeal from 1st District Court of Newton County

    NUMBER 13-01-588-CV

    COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  BEDINBURG

WILLIAM D. WINSTON, GILBERT M. SPRING,

AND WILLIAM DREW PERKINS, Appellants,

v.

SABINE RIVER VALLEY MORTGAGE

ASSOCIATION, INC., Appellee.

On appeal from the 1st District Court of Newton County, Texas.

O P I N I O N

Before Justices Hinojosa, Rodriguez and Wittig[1]

Opinion by Justice Wittig

This is a trespass to try title case. After Elmer Simmons died, his daughter conveyed, by special warranty deed, a 120-acre tract in Newton county to appellants, William D. Winston, Gilbert M. Spring and William Drew Perkins, attorneys. Appellants had represented the heirs and received the conveyance in consideration for their attorneys= fees on the estate matter. Appellee, Sabine River Valley Mortgage Association, Inc., claimed both a prior recorded deed and limitations by adverse possession. In a bench trial, District Judge Joe Bob Golden, ruled in favor of appellee on the basis of adverse possession. In a single issue, appellants attack the legal sufficiency[2] on the defense of limitations. We affirm.

I

Both appellants and appellee claimed record title through Elmer David Simmons. Simmons=s name appears on a deed to appellee, prior to his death in 1987. After Simmons=s death, his daughter conveyed the 120-acre tract to appellants. Appellants argued at the trial that Simmons did not have good title when he conveyed the tract to appellee. And this seems to be partially true, because the witnesses and record reveal lists of sixty-one potential heirs to the three different parcels comprising the 120-acre tract, plus another list of fourteen heirs to tract 2, which is not in issue.[3] However, that argument would apply as well to appellants= claim to title. This may explain appellants= sole focus on the legal sufficiency of appellee=s claim.

At trial, appellee introduced testimony that the tract was enclosed by a fence extending 2100 feet around the property. The fence stopped at the creek, said to be impassable by cattle. Cattle were run on the property after appellants took possession in 1987. The cattle operation, including Long Horns, buffalo and cross-bred Brahman, ceased in 1996. Timber was sold off the tract at least twice, in 1987 and 1997. Some trees were replanted. A garden was planted plus cropping including an okra patch, corn and peas. However, as appellants= counsel aptly noted, these crops were on the undisputed tract 2, not the 120 acres. Appellee offered testimony that it planted maize on some of the disputed acreage, for the purposes of attracting game. The contested tract was also hunted by various family members of appellee=s employees. Although there was a cabin, this too was located upon the undisputed tract 2. On the other hand, the 120 acres in dispute, was only accessible by a road through appellee=s tract 2. Appellee=s witness also testified the company built roads throughout the property. Testimony showed peaceful, uninterrupted enjoyment of the land by appellee. Appellee=s possession was also Aquiet@ except for occasional dog hunters. Both parties paid taxes intermittently.[4]

II

The record does not contain findings of fact and conclusions of law. In a nonjury trial, where findings of fact and conclusions of law are neither filed nor timely requested, it is implied that the trial court made all necessary findings to support its judgment. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992) (citing Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989)). When, as in this case, a reporter=s record is brought forward, these implied findings may be challenged by factual or legal sufficiency points, the same as jury findings or a trial court's findings of fact. Holt Atherton, 835 S.W.2d at 84; State v. One (1) Residence Located at 1204 North 12th Street, Alamo, Tex., 907 S.W.2d 644, 645 (Tex. App. Corpus Christi 1995, no writ). If the evidence supports the implied findings, we must uphold the judgment of the trial court on any theory of law applicable to the case. In re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984); Lassiter v. Bliss, 559 S.W.2d 353, 358 (Tex. 1977). When a party attacks the legal sufficiency of an adverse finding on an issue on which he has the burden of proof, he must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chemical Co. v. Francis, 46 S.W.3d 237, 241-242 (Tex. 2001). In reviewing a matter of law challenge, the reviewing court must first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Id. If there is no evidence to support the finding, then the reviewing court will examine the entire record to determine if the contrary proposition is established as a matter of law. Id. And the issue should be sustained only if the contrary proposition is conclusively established. Id.

When the party opposing a claim or defense has lost the issue at trial, it may attack the legal sufficiency of the evidence by establishing that there was no evidence to support the finding in favor of the opponent's claim or defense. Garza v. Alviar, 395 S.W.2d 821, 824 (Tex. 1965). We will sustain the challenge when the record discloses: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence conclusively proves the opposite of the vital fact. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). In reviewing the evidence under a no evidence point, we consider all the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party's favor. Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285 86 (Tex. 1998). In evaluating legal sufficiency, we are required to determine whether the proffered evidence as a whole rises to the level that would enable reasonable and fair minded people to differ in their conclusions. Id. at 286.

III

In their brief, appellants argue three cases, which we review in turn. They first argue, Orsborn v. Deep Rock Oil Corp., 267 S.W.2d 781 (Tex. 1954). While appellants note this is a thirty-plus page opinion, they furnish no pinpoint cites. So we are left to suppose that from Orsborn they argue that limitation title cannot be acquired by grazing unenclosed land. Id. at 785. Perhaps appellants allude to the language that when the disputed tract of land has been casually or incidentally enclosed with other land, especially when other land is held by the possessor under deed, the incidental enclosure and the occasional grazing of the disputed tract by cattle straying from the titled land will not amount to such adverse and hostile possession and use as will support the statute of limitations. Id. On the other hand, Orsborn also discusses possession. When possession is exercised with the rights that pertain to an owner alone, this is deemed to be sufficient evidence of an adverse claim, in the absence of some evidence indicating that it is held in subordination to the title of the real owner. Id. Even under the brief factual review above, we do not believe Orsborn is the right horse to support the heavy burden appellants undertake.

Next, appellants argue that when the use relied upon to acquire limitation title is grazing, there must be at the same time a sufficient enclosure that will give evidence that the land was designedly enclosed and that a claim hostile to the true owner is being asserted. Cunningham v. Eastham, 465 S.W.2d 189, 194 (Tex. Civ. App.BHouston [1st Dist.] 1971, writ ref=d n.r.e.).[5] Cunningham also observes that a creek can be a sufficient enclosure when the stream was of such Awidth and depth as to turn cattle of ordinary disposition.@[6] Id. Neither will Cunningham turn the tide or cross over the river.[7]

Finally, appellants cite Parker v. McGinnes, 809 S.W.2d 752 (Tex. App.BHouston [1st Dist.] 1991). Sadly, this opinion was withdrawn. Parker v. McGinnes, 842 S.W.2d 357 (Tex. App.BHouston [1st Dist.] 1992, writ denied). But we glean from the opinion on rehearing the holding that: AWithout his enclosure of the lots, we find there was no evidence of L.B.'s adverse possession of the lots.@ Id. at 362. The evidence here however, shows enclosure and other exclusive uses hostile to appellants= claims.

IV

Adverse possession as defined in section 16.021 of the civil practice and remedies code is "an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person." Tex. Civ. Prac. & Rem. Code Ann. ' 16.021(1) (Vernon 1986); see also Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990); Garza v. Maddux, 988 S.W.2d 280, 288 (Tex. App.BCorpus Christi 1999, pet. denied); Clements v. Corbin, 891 S.W.2d 276, 278 (Tex. App.BCorpus Christi 1994, writ denied). To establish title through adverse possession, "the possession must be of such character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant." Clements, 891 S.W.2d at 278 (quoting Rick v. Grubbs, 214 S.W.2d 925, 927 (Tex. 1948)).

The applicable limitations periods asserted, the three, five and ten years statutes respectively, state in pertinent part:

A person must bring suit to recover real property held by another in peaceable and adverse possession under title or color of title not later than three years after the day the cause of action accrues.

Tex. Civ. Prac. & Rem. Code Ann. ' 16.024 (Vernon 1986).

(a) A person must bring suit not later than five years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who:

(1) cultivates, uses, or enjoys the property;

(2) pays applicable taxes on the property; and

(3) claims the property under a duly registered deed.

Id. ' 16.025.

(a) A person must bring suit not later than 10 years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property. . . .

c) Peaceable possession of real property held under a duly registered deed or other memorandum of title that fixes the boundaries of the

possessor's claim extends to the boundaries specified in the instrument.

Id. ' 16.026.

V

We believe the evidence supports the trial court=s implied findings. It was undisputed that all parties claimed under a deed from a common predecessor in title. Appellee testified a fence was erected some 2100 feet enclosing the property to the bayou. As noted by appellants, under the applicable case law, there are two kinds of fences: "casual fences" and fences that "designedly enclose" an area. Orsborn, 267 S.W.2d at 786. If the fence existed before the claimant took possession of the land and the claimant fails to demonstrate the purpose for which it was erected, then the fence is a "casual fence." Id. The purpose of the enclosure created by appellee was the running of cattle, which was done for nine years. Thus, appellee=s fence designedly enclosed an area.

Another essential element in an adverse possession claim under the ten year limitations statute is that the claimant's possession must be an actual and visible appropriation of the land for ten or more consecutive years. Rhodes, 802 S.W.2d at 645. The record reveals that in addition to fencing the property, appellee lived, hunted, grazed cattle, built roads, clear-cut timber, and replanted timber. Appellee=s testimony also established uninterrupted enjoyment of the land until the lawsuit in 1999. Appellee=s possession was actual and visible (as well as exclusive) for the additional reason that it had the only road access due to the configuration of the property. We are pointed to no evidence of use or attempted use by anyone other than appellee and an occasional poacher. Nor is there any evidence of any other asserted claim, other than under appellants= posthumous deed.

As our highest court held, "the question of adverse possession normally is a question of fact, so only in rare instances is a court justified in holding that adverse possession has been established as a matter of law." Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex. 1985). We are constrained to defer to the fact finder=s superior ability to judge the credibility of the witnesses and the weight to be given their testimony. Accordingly, when we consider all the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party's favor, appellants= legal sufficiency challenge must fail. See Associated Indem. Corp., 964 S.W.2d at 285 86. Appellants= sole issue is overruled.

The judgment of the trial court is affirmed.

DON WITTIG

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 12th day of December, 2002.

[1]Retired Justice Don Wittig assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. ' 74.003 (Vernon 1998).

[2]Appellants= issue states: ADid the evidence, under a preponderance of creditable standard, establish the elements necessary to sustain a defense based upon any Statute of Limitation Statute?@ In their argument summary, they state: AThe well defined legal criteria, in a land dominated by the Rule of Law, was not met by Defendant/Appellant=s evidence.@ Based on these assertions, and the fact appellants make no argument concerning factual sufficiency, we deduce appellants= issue is one of legal sufficiency. See Tex. R. App. P. 38.1(e),(g) & (h).

[3] Appellants conceded at trial no claim to tract 2, consisting of forty acres of the original 160-acre patent. The State of Texas issued an original patent to Simon Lewis in 1882. Other testimony indicated C. E. Lewis could not be connected to anyone. Not all the heirs of Simon Lewis were known. Accordingly, both our opinion and the judgment of the trial court must be strictly construed to apply to the named parties.

[4] Counsel for appellants wittily quipped in response to the trial court=s inquiry about taxes, that Aeveryone in Newton county except me@ paid taxes on the land.

[5] Once again, appellants afford us no pinpoint cite. We hope we found the right acorn.

[6] Appellants candidly admit to being uninformed about the ordinary disposition of cattle. They criticize Cunningham, observing the Pacific Ocean would serve as an enclosure, but that such evidence was not presented below. We disagree. The only evidence of the creek indicated cattle would not cross this dead bayou.

[7] ALet us cross over the river and rest under the trees.@ Stonewall Jackson, after being mortally wounded at Chancellorsville. May 10, 1863.