Stevens v. Pedregon
Stevens v. Pedregon
Opinion of the Court
This is an action of trespass to try title, brought by appellant against appellees, to recover a 17-acre tract of land 6 miles east of the city of El Paso, in the Rio Grande valley, and known as survey 215; the suit being filed August 24, 1910. The case was tried without aid of a jury, resulting in judgment for defendants, based upon plea of the 10-years statute of limitation.
The findings of fact and conclusions of law of the trial court are as follows:
“(1) The plaintiff, J. W. Stevens, is the record owner of said land, having bought the same from James A. Tays, administrator of the estate of Joseph W. Tays, on the 4th day of April, 1888, and paid therefor the sum of one hundred and seventy ($170.00) dollars.
“(2) I find that the defendant Catarino Pedregón on the 26th day of September, 1899, bought survey 214 from Mrs. Sarah J. Melendes, and that he immediately took possession of said survey 214, to wit, on the 26th day of September, 1899, and has been living with his family on said survey 214 ever since, and that said survey 214 immediately joins survey 215 on the west.
“(3) I find that the defendant Catarino Pedregón was advised by said Mrs. Sarah Melendes that survey 215 was not hers, and that if he would take possession of it and plant it and use it that he could become the owner of it by limitation, and that immediately after he took possession of survey 214 he commenced to use, occupy, and cultivate said survey 215, and to claim the land as his own, this being about the 1st of October, 1899. I find: That he planted sugar cane, vegetables, beans, watermelons, and other crops on a part of survey 215, the land in controversy, each year from 1899 to the present time, and planted more or less of it each year as he had water to irrigate it, and that about the time he moved onto 214 he planted a vineyard which extended onto 215, and covered about two acres of said survey 215, and that the same has been on said survey 215 and cultivated by Pedregón ever since that time.
“(4) The defendant Catarino Pedregón built a house on said survey 215 in the fall of 1899, near the center of the survey, and occupied said house by his tenants for about seven years, and then tore the house down and built another house a little further back on the property, which has remained on the *238 land ever since. That none of the land was fenced until about two years before the filing of plaintiff’s suit. That about that time defendant Pedregón fenced the land.
“(5) The county road, running from El Paso, Tex., down the Rio Grande valley, runs through the northern part of the land in controversy, and is the main highway of travel from El Paso to the east, and is used by the public generally traveling up and down the Rio Grande valley east of El Paso. That all parts of this land could be seen from this road, and that the said land in controversy is about six miles east of the city of El Paso, and that the country is densely populated, and that all the surrounding land is cultivated by farmers raising alfalfa, fruit, vegetables, and other crops, and that it was not customary to fence lands in the valley until about three years before plaintiff’s suit.
“(6) The Galveston, Harrisburg & San Antonio Railroad track runs immediately north of the land in controversy, and about 100 feet from the line.
“(7) I find that about two years before the filing of the plaintiff’s suit in this cause the defendant Catarino Pedregón sold to the defendants F. G. Alderete and Ike Alderete that portion of the survey in controversy lying between the county road and the railroad track, and that said defendants F. G. Alderete and Ike Alderete have been in possession of the same by their tenants, planting the same every year since they have had it with vegetables and other farm products as are raised in that valley, and that their possession of said part so bought by them dates from the time of their purchase from their codefendant Pedregón.
“(8) The possession, use, cultivation, and occupancy of said land by the said defendants in the manner above set out .was undisputed, peaceable, and adverse from the fall of 1899 until the filing of the plaintiff’s suit on the - day of-, 1910, except that about two years before the filing of plaintiff’s suit plaintiff’s son demanded the land as his father’s property, but defendant Pedregón refused to give it up claiming it as his own.
“Conclusions of Law.
“(1) Based on the foregoing findings of fact, I conclude that the defendant’s title by limitation is perfect as against the plaintiff’s claim of ownership.”
We adopt all of the conclusions of fact of trial court, except “the defendant Catarino Pedregón built a house on said survey 215 in the fall of 1899, near the center of the survey,” and, in lieu thereof, find that the house was built on the land about seven years only prior to the institution of the suit. In 1908 Pedregón conveyed a portion of the land in controversy to his codefendants, F. G. and Ike Alderete. Upon trial it was admitted by defendants that plaintiff was the owner of the record title and entitled to recover, unless barred by the 10-year statute of limitation, which was pleaded in bar of such recovery. The testimony abundantly supports all of the conclusions of fact of the trial court with reference to the cultivation and user by defendants of the premises, except as to the time the house was built. The testimony shows, and appellees concede, that the house was not built until about seven years prior to the institution of the suit, so-that, in order to support their plea of limitation, appellees must rely upon the possession evidenced for about three years by cultivation alone.
It is contended by appellants that the possession evidenced by cultivation alone, unaccompanied by inclosure or residence upon the land in person or by tenant, is not the adverse possession contemplated and required by our statute; that it is not actual possession, nor is it of that exclusive, continuous, notorious, and hostile character which must exist in order to support the statute. With reference to cultivation and user, the testimony shows that on -September 26, 1899, defendant Pedregón acquired survey 214 which lies west of and immediately joins survey 215, and that he immediately took possession of 214 on that date, and has been living with his family on 214 ever since. In March, 1900, he planted a vineyard on survey 214, which extended over onto 215, which vineyard has been in constant cultivation ever since that date; that about two acres of this vineyard was on 215; that at the time Ped-regón acquired and moved upon 214 he began to cultivate 215, planting and cultivating sugar Cane, corn, vegetables, beans, watermelons, and other things; that he grazed and put his animals upon that portion of the land which he did not cultivate and plow; that he cultivated all of survey 215 except some high places upon the land. The amount cultivated and planted also varied with the quantity of water in the irrigation ditch available for the irrigation of the land. Those portions of the land not cultivated, as stated above, were covered with weeds and mesquite brush; and the cultivation of the land was by the defendants in person and by tenants. Since the building of the house upon the land the same has been occupied by tenants of defendant. Prior to the time Pedregón acquired 214 he had cultivated and used the same as a tenant of a Mrs. Melen-des from whom he acquired the same, and while he was cultivating the same as her tenant, he also cultivated and used 215 for her. Ever since 1899 Pedregón claimed the land and has used and cultivated it to the exclusion of every one else, and was not interrupted in such use and cultivation. In 1907 the land was inclosed by a fence and in 1903 a house was built upon the land, which has been continuously occupied by tenants since its erection. The exact amount of the land in cultivation is not disclosed by *239 the testimony, but it is apparent from the testimony of the defendants and their witnesses that the major portion of the land was in cultivation constantly from 1899 to the date of the filing of the suit in 1910.
The only exception to this rule is in cases where it affirmatively appears that the improper testimony was taken into -consideration by the court.
Affirmed.
Reference
- Full Case Name
- Stevens v. Pedregon [Fn&8224]
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- Published