“Assuming that the plaintiff is relying upon prior possession, proof of title in the defendant unquestionably operates to rebut the inference of ownership arising from plaintiff’s possession.”
How later courts described this case
- “Assuming that the plaintiff is relying upon prior possession, proof of title in the defendant unquestionably operates to rebut the inference of ownership arising from plaintiff’s possession.”
- recognizing adverse possession through tenant possession
- “Ordinarily a prima facie inference or presumption may be rebutted . . . .”
Written by the judges who cited it.
The opinion
SMITH, Justice.
The dissenting opinion delivered June 24,. 1964, is withdrawn, and the following substituted therefor.
I respectfully dissent. The Court has-passed upon the question of prior possession, and has held that plaintiffs have established prior possession; and, therefore, have title-to the .8 of an acre involved in this case. Prior possession was argued in the Court of Civil Appeals in connection with the points-that title was proved to be with the plaintiffs-under the ten-year statute of limitations. The contention was that the plaintiffs had prior possession of “the North 6 acres of Block 223.” No proof was made that plaintiffs had established title to the .8 of an acre *253 involved. In fact, the first metes and bounds description of this .8 of an acre appears in plaintiffs’ petition. All through plaintiffs’ briefs plaintiffs seek to get away from the void description contained in the deeds in their chain of title. The briefs describe the Reiter tract as being the North 6 acres, whereas the deeds in plaintiffs’ chain of title describe their land as being “the North six (6) acres, more or less, of Block Number Two Hundred Twenty Three (223) * * *»
I contend that there is no evidence in this record showing prior possession. It cannot be said, as a matter of law, that the plaintiffs have title under the theory of prior possession or any other theory. This case was tried to the Court without the aid of a jury. A take-nothing judgment was properly entered against the plaintiff.
A plaintiff in a trespass to try title suit may recover by (1) proving a superior title out of a common source; (2) proving title by limitations; and (3) proving prior possession, and that the possession had not been abandoned. See Land v. Turner, Tex., 377 S.W.2d 181 (1964). Since plaintiffs have asserted all three of these independent grounds of recovery as a basis for their claim to the 8 of an acre, I shall discuss these grounds separately.
Superior Title Out of a Common Source
In a trespass to try title suit, where the parties agree as to a common source, it is incumbent upon the plaintiff to discharge the burden of proof resting upon him to establish a superior title from such source. See Rule 798, Texas Rules of Civil Procedure; Davis et ux. v. Gale, 160 Tex. 309 , 330 S.W.2d 610 (1960).
By the entry of the “take-nothing” judgment against the plaintiffs the trial court held that the plaintiffs failed to discharge this burden. The plaintiffs are before this court urging that the trial court and the intermediate appellate court erred in holding against them on the issue of superior legal title.
The principal reason that the plaintiffs have failed to establish legal title is that description of the land in three deeds in their chain of title is fatally defective, and, therefore, void.
The description of the land in the deed from the common source to J. C. Engelman, Inc., dated July 21, 1924, is as follows:
“The north nineteen and nine-hundredths (19.09) acres, more or less, of Block Number Two Hundred Twenty-three (223), according to the subdivision of what is known as the La Blanca Tract out of the Llano Grande and La Blanca Grants, according to the plat thereof recorded in Volume 1, page 33, of the Map and Plat Records of Hidalgo County, Texas, said map or plat being herein referred to for greater certainty of description.”
Next in plaintiffs’ chain of title is a deed from J. C. Engelman, Inc., to T. L. Humble, dated July 22, 1924, which describes a tract of 6 acres, more or less, out of the J. C. Engelman, Inc., 19.09 acres, more or less., the particular description being:
“The north six (6) acres, more or less, of Block Number Two Hundred Twenty-three (223), according to the subdivision of what is known as the La Blanca Tract out of the Llano Grande and La Blanca Grants, according to the plat thereof, recorded in Vol. 1, page 33, of the Map and Plat Records of Hidalgo County, Texas, said map or plat being herein referred to for greater description.”
The third deed in plaintiffs’ chain of title from the common source is a deed from T. L. Humble to the plaintiff, Edna H. Reiter, dated August 26, 1944. This deed describes the land conveyed as follows:
“The North six (6) acres, more or less, of Block Number Two Hundred Twenty-three (223), according to the subdivision of what is known as the La Blanca Tract out of the Llano Grande and La Blanca Grants, ac *254 cording to the plat thereof recorded in Vol. 1, page 33, of the Map and Plat Records of Hidalgo County, Texas.”
The words “more or less” render the description of the land attempted to he conveyed uncertain and indefinite to the extent that the land cannot be identified. Therefore, the deeds are void as legal conveyances of land. Plaintiffs seek to disregard the words “more or less” used in the description of the lands involved and desire to treat the descriptions as if they read: The North 19.09 acres of Block 223, and the North 6 acres of Block 223. Thus, plaintiffs would treat the words “more or less” as though they were added to an estimate of the quantity of land following a particular description. The words “more or less” cannot be ignored. The deeds in the instant case do not designate the land as the North 19.09 acres of Block 223, and the North 6 acres of Block 223. The words are not attached to an estimate of quantity following a particular description of the land. Since there is no particular description of the land, the acreage, or quantity becomes important in ascertaining what land was intended to be conveyed.
The rules announced in the case of Wooten v. State, 142 Tex. 238 , 177 S.W.2d 56 (1944), are controlling on the question. In that case, two tracts of land were involved. One of the tracts was described as the North part of Tract 10, Section 13, Blk. G-17, H. P. Melton Survey, containing 60 acres of land, more or less; and the •description given of the other tract was that it is the North end of Tract 10, Section 11, Block G-17, Thos. F. Main survey, containing 140 acres of land, more or less. The repondents in that case, just as the plaintiffs in the instant case, sought to disregard the words “more or less” used in the description of the two tracts. In holding against such contention, this court said:
“In the instant case, however, the words ‘more or less’ are not attached to an estimate of quantity following a particular description of the land; and since there is no particular description, the acreage, or quantity, becomes important in ascertaining what land is intended to be condemned. There is nothing to identify or define the north part of one tract and the north end of the other tract except the statement of the acreage, and that statement is qualified, made indefinite and uncertain by the addition of the words, ‘more or less’. The use of these words destroys the value of the statements of the acreage for the purpose of description. The substance of the description is: 60 acres, more or less, off the north end or part of one tract, and 140 acres, more or less, off the north end or part of the other tract. Is it 60 (and 140) acres or more than 60 (and 140) acres or less than 60 (and 140) acres? If more, how much more? If less, how much less? In our opinion, the description of the land contained in the petition for condemnation, in the award and in the judgment, is so indefinite and uncertain that the land cannot be identified with reasonable certainty. It follows that neither the commissioners nor the county court acquired jurisdiction.”
There is no material distinction between the Wooten case and the instant case. The “more or less” description in both instances simply described nothing and conveyed nothing. The reasonable certainty of description required for a valid conveyance is such that a surveyor could go upon the land and mark out the land designated. See Parker v. Fort Worth & D. C. Ry. Co., 84 Tex. 333 , 19 S.W. 518 (1892). No surveyor could go upon the land and mark out with certainty the location of the south boundary line of the north six acres, more or less, of Block 223. As stated in Norris v. Hunt, 51 Tex. 609 , 614:
“The true rule, as deduced from the authorities, seems to be that this description should be so definite and certain upon the face of the instrument itself, or by other writing referred to, *255 that the land can he identified with reasonable certainty.”
This rule was followed in the Wooten case. However, plaintiffs seek to distinguish the Wooten case on the ground that the description of the land in that case makes no reference to any other writing in aid of the description, whereas, the description in the instant case specifically says that the tract is 19.09 acres, more or less, and 6 acres, more or less, “according to the subdivision of what is known as the La Blanca Tract out of the Llano Grande and La Blanca Grants, according to the plat thereof recorded in Vol. 1, page 33, of the Map and Plat Records of Hidalgo County, Texas.” In making this contention, the plaintiffs are seeking to do exactly what was held could not he done in the Wooten case. The map showing Block 223 was introduced in evidence. This map of Block 223 does not show where the south boundary of “the North 6 acres, more or less” is to run. Plaintiffs base their entire argument on the premise that 6 acres, not 6 acres, more or less, can be located on the ground with the aid of the map. Since the words, “more or less” were used as a part of the description, it is unnecessary to decide in this case whether the description would be sufficient but for the use of those words. See Wooten v. State, supra. The use of these words as a part of the description destroys the value of the statements of the acreage for the purpose of description.
Plaintiffs rely upon the case of Zeppa v. Houston Oil Co. of Texas, Tex.Civ.App., 113 S.W.2d 612 , (1938), wr. ref. In that case the description involved was “the East 100 acres” out of a larger boundary definitely described by metes and bounds. There is nothing in the holding in this case which runs counter to either the holding in the instant case or the Wooten case, supra. The respondents in the Wooten case relied upon cases similar to the Zeppa case, but this court in distinguishing the cases cited pointed out that in none of those cases was the specification of the number of acres intended to be conveyed qualified by the words “more or less.”
To recover in trespass to try title, the plaintiff must recover upon the strength of his own title. Hejl v. Wirth, 161 Tex. 609 , 343 S.W.2d 226 (1961). Where the parties stipulate common source, the burden rests upon the plaintiff to connect each party with the common source, and to establish a superior title from such source. See Bosse v. Cadwallader, 86 Tex. 336 , 24 S.W. 798 ; Davis, et ux. v. Gale, supra. Plaintiffs failed to discharge their burden of proving superior title out of La Blanca, the common source.
Prior Possession
The Court holds that plaintiffs are entitled to judgment for title and possession of the .8 acre in question because they have proven prior possession. The trial court found that plaintiffs had failed to prove prior possession. The Court holds that a deed from La Blanca to Hester, in defendants’ chain of title, only conveyed to Hester an easement for canal purposes. I contend that the deed conveyed a fee simple title, instead of an easement. If I am correct, then the question of prior possession is not in the case. In order to clarify my position, I start by setting out portions of the 1904 Hester deed:
“Know all men by these presents; That the La Blanca Agricultural Company * * * has granted, sold and conveyed and by these presents does grant, sell and convey unto the said A. F. Hester, Trustee, of the County of Cameron and State of Texas, all those certain tracts or parcels of land situated in the County of Hidalgo, State of Texas, with the improvements thereon, and more particularly described as follows:
1) [Then follows the description of a 10-acre tract.]
2) “Also the canal, laterals and flumes, and rights-of-way therefor *256 now existing on the following lands, and also any further rights-of-way that may he required for the purpose of building, extending and maintaining canals, laterals and flumes for the purpose of irrigation, on, across, along and around the following described tracts or parcels of land to wit: * * *. [Then follows the description of several tracts.]
3) “And also along and over the following described tracts or parcels of land which were conveyed to ‘La Blanca Agricultural Company’ by the following named persons to wit: — ” [Then follows the description of land which includes the land in dispute.]
The principal question on this point is the same as that which was presented to this court for decision in the case of Texas Electric Ry. Co. v. Neale, 151 Tex. 526 , 252 S.W.2d 451 (1952). Did the deed convey to the grantee merely an easement, that is, the right to use the land for a right of way, or did it convey the title in fee?
In the Neale case, this court recognized that there are two lines of authorities, but •clearly distinguished the two and then held that the Neale case was in harmony with the line of cases holding that the deed under consideration conveyed the title in fee rather than a mere easement. What was said in the Neale case in 1952 is equally applicable to this case. In Neale, the Court after stating that the question of whether a deed conveyed merely an easement or a fee title had been before the Court many times, said:
“There are two lines of authorities, the one represented by Right of Way Oil Co. v. Gladys City Oil etc., Co., 106 Tex. 94 , 157 S.W. 737 , 51 L.R.A., N.S., 268, and the other by Calcasieu Lumber Co. v. Harris, 77 Tex. 18 , 13 S.W. 453 , and Brightwell v. International-Great Northern R. Co., 121 Tex. 338 , 49 S.W.2d 437 , 84 A.L.R. 265 . Generally stated, the rules announced by these decisions are: First, that, as in the Right of Way Oil Company case, [ 106 Tex. 94 , 157 S.W. 739 ] a deed which by the terms of the granting clause grants, sells and conveys to the grantee a ‘right of way’ in or over a tract of land conveys only an easement; and second, that, as in the Cal-casieu Lumber Company case and in the Brightwell case, a deed which in the granting clause grants, sells and conveys a tract or strip of land conveys the title in fee, even though in a subsequent clause or paragraph of the deed the land conveyed is referred to as a right of way.
“It is our opinion, after careful consideration of the deed and the decisions, that the case is ruled by Calcasieu Lumber Co. v. Harris, 77 Tex. 18 , 13 S.W. 453 , and Brightwell v. International-Great Northern R. Co., 121 Tex. 338 , 49 S.W.2d 437 , 84 A.L.R. 265 , rather than by the Right of Way Oil Company case. In the case last mentioned the granting clause of the deed granted and conveyed ‘the right of way, two hundred feet in width, over and upon the above-described tract of land’, whereas the granting clause in the deed here under construction grants, sells and conveys to the grantee ‘the following described piece or parcel of land’. It does not purport to convey merely a right of way or merely an easement. There do appear in the deed words which show the purpose for which the grant is made, but those words do not undertake to reduce or debase what has been granted from a fee title to a mere easement.”
The Court should recognize, as it did in the Brightwell case, supra, that the decision made in the Calcasieu Lumber Company case “has become a rule of property under which titles and securities of immense value have been acquired in this state, and it should not now be disturbed or changed.” This is especially true where, as here, the *257 plaintiffs have wholly failed to prove a record title. The argument that the defendants abandoned the canal has no basis in fact. The failure to have water in the canal at a certain time cannot have the .effect of destroying the provisions of the La Blanca-Hester deed which clearly show that a tract or parcel of land was conveyed upon which to build a canal.
In the present case, as in the Neale case, supra, La Blanca granted, sold and conveyed “all those certain tracts or parcels of land,” which are described therein. The La Blanca-Hester deed does not purport to convey merely a right of way or an easement. The “tracts or parcels of land” described in the deed include not only the land described as acreage, but also land described as canals. A canal for carrying water is real estate. Mudge v. Hughes, Tex.Civ.App., 212 S.W. 819 (1919) no wr. hist.
That part of the granting clause in the above deed which refers to future rights of way that may be required for the purpose of irrigation on, across, along and around the following described tracts or parcels of land was a conveyance of an equitable title to such lands as might later be required and selected to be used as a canal. Upon such selection being made by Hester or his successors (defendants), legal title to such property became vested in them, superior to the rights of any subsequent purchasers of said land after the deed was recorded in 1904. See Turner v. Hunt, 131 Tex. 492 , 116 S.W.2d 688 , 117 A.L.R. 1066 (1938). This case, in principle, stands for the proposition that where a grantor conveys to a grantee the right to select smaller tracts out of a larger definitely described boundary, the grantee becomes the equitable owner of such tracts, and upon exercise of his right of selection, he becomes vested with legal title to the selected parcels. Where the instrument granting such right of selection has been recorded, as here, then all subsequent purchasers of tracts out of the described lands are charged with constructive notice of such right of selection in the first grantee, and take subject thereto. In the present case, La Blanca intended to give to Hester the right to specific tracts for canal purposes, such tracts to be selected out of the larger, definitely described boundaries as the need for such canals arose. Inasmuch as defendants’ predecessor acquired fee title, rather than just an easement for canal purposes, plaintiffs cannot recover said land by proving prior possession, and that the possession had not been abandoned.
In trespass to try title the plaintiff has the burden of proving prior actual possession of the property in litigation, which possession is exclusive and peaceable, to initiate “prior possession.” In the light of the record in this case it cannot be said, as a matter of law, that plaintiffs’ predecessor T. L. Humble, acquired such exclusive use of the .8 acre in dispute. The testimony raised an issue of fact as to “prior possession” and the trial court resolved the issue against the plaintiffs.
This being so, it is unnecessary to unduly lengthen this dissent with a discussion of the Court’s position that “a break in plaintiffs’ paper chain of title leaving an apparent outstanding title in a third party does not destroy plaintiffs’ case under the doctrine of prior possession.” My silence as to this matter in no respect is to be construed as implying consent to the Court’s position in this regard.
Title by Limitation
The holding of the trial court denying plaintiffs a recovery under their plea of the five-year statute of limitations of Texas is not before this court.
Plaintiffs’ remaining contention that the evidence establishes their title under the ten-year statute of limitations, Article 5510, Vernon’s Annotated Civil Statutes is without merit.
It is well settled that in order to establish title under the ten-year statute of limitations, possession must not only be actual, *258 but also visible, continuous, notorious, distinct, hostile and of such a character as to indicate unmistakably an assertion of claim of exclusive ownership in the occupant. See Heard et al. v. State et al., 146 Tex. 139 , 204 S.W.2d 344 (1947). Plaintiffs’ claim is based, in part, on possession and use of the property by tenants. In this regard, the law is well settled that a tenant cannot assist in the building of a limitation title for a landlord beyond the actual land leased. See Williams v. Fuerstenberg et al., Tex.Com.App., 23 S.W.2d 305 . With these general rules in mind, we consider plaintiffs’ limitation claim.
After the deed from Engelman, Inc., to T. L Humble, father of plaintiff Reiter, was executed in 1924, Humble went into possession of the “north six acres” of Block 223. The only evidence in the record, which indicates that Humble actually used the specific .8 acre in question during the time he lived on this land, came from the witness, Mr. R. M. Hughes, who lived to the south of the “Humble tract.” According to Mr. Hughes, Humble used the western part of the tract for farming “for a long time.” However, there is no evidence as to what constituted “a long time.” While the record is not clear, it appears that the western end of Block 223 was completely enclosed by fences around 1934. Wesley Van Matre, Humble’s only tenant, testified that he began working the land in 1941, and worked it each year until 1949. According to Mr. Van Matre, he pastured cattle on the enclosed .8 acre during these years, but further testified as follows:
“Q. And isn’t it a fact that other neighbors put stuff in this canal strip out there, and used it for grazing?
“A. Well, before I went there they did.
“Q. In other words, the District made no objection to letting you graze stuff on there, as far as they were concerned?
“A. Yes, Sir.
“Q. In other words, you did it with their permission and consent ?
******
“A. Yes, we done it with their consent.”
Humble moved off the land some time before 1943. Thereafter, on August 26, 1944, he executed the deed to plaintiff Reiter, wherein he conveyed the “north six acres more or less,” of Block 223. Plaintiff Reiter never came onto any part of this land from the time of execution of this deed, until after this suit was filed in 1958. Therefore, any adverse possession by her would have to be through tenants.
As noted above, Wesley Van Matre worked the “Humble tract” from 1941-1949. Upon leaving the land, John Van Matre moved on the land as plaintiff Reiter’s tenant. He testified that he commenced running cattle across the .8 acre “as soon as Wesley had left.” There was nothing to put defendants on notice that John Van Matre was making any greater claim to the land in question than had his brother Wesley, who, as noted above, testified he used the .8 acre with defendant’s consent. In fact, John Van Matre stated that he made use of the land “under the same circumstances” that his brother Wesley had.
John Van Matre ceased to make use of the “Humble tract” in early January, 1953. Thereafter, for approximately six weeks, no person used or occupied said land. On February 14, 1953, plaintiff Reiter’s husband made a verbal lease of the “Humble tract” to R. M. Hughes, without any reference as to boundaries. Mr. Hughes did not maintain the fences around the western part of Block 223. He testified that he made no use of the .8 acre in dispute until 1956, at which time the canal area was leveled off. He did begin raising crops on the leveled canal strip in this year, and continued to do so down to 1958, when this suit was filed. However, even during the time of this use, Hughes did not claim to be holding the .8 *259 acre for plaintiff Reiter as the exclusive owner thereof. He stated that he was asserting whatever interest plaintiff Reiter might have in the canal strip (the .8 acre) as one member of the public, as a property owner in the Irrigation District, “like anybody else along the canal.” It is clear from all of the foregoing that plaintiffs’ attempt to establish ten-year title by limitation is not sufficient to meet the strict requirements of the statutes.
The judgments of the trial court and the Court of Civil Appeals should be affirmed.
GRIFFIN, J., joins in this dissent.