text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. CARDWELL.
    (No. 8411.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 17, 1916.)
    1. Negligence <&wkey;136(9) — Jury Question.
    Negligence, whether of plaintiff or defendant, is generally a question of fact, and becomes a question of law only when the act done is in violation of law, or when the facts are undisputed and admit of but one inference.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 293-297; Dec. Dig. &wkey;136(9).]
    2. Negligence <&wkey;136(9)' — Evidence — Dieected Verdict.
    To authorize a directed verdict on the issue of negligence, the evidence must be of such character that there is no room for ordinary minds to differ as to the conclusion to be drawn.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 293-297; Dec. Dig. &wkey;»136(9).]
    3. Railroads &wkey;>350(15) — Negligence—Contributory Negligence — Question oe Fact.
    Plaintiff, who was injured by his head striking the end of a projecting bolt while riding a mule through a passage underneath defendant’s railway, when his mule ran away, was not negligent as a matter of law, although he knew the bridge to be so low that a man on horseback must lean over to guard against injury.
    [IOd. Note. — For other cases, see Railroads, Cent. Dig. § 1168; Dec. Dig. <§=350(15).]
    4. Railroads <&wkey;350(15) — Negligence—Contributory Negligence — Question oe Fact.
    Where plaintiff, knowing the dangerous character of a passageway under a railroad crossing his inelosure, was injured while using it when his mule ran away, the fact that there was a grade crossing 1,800 feet east of such passageway did not make plaintiff guilty of contributory negligence as a matter of law in not using such grade crossing, where no showing was made that plaintiff had a right of way through the land on the other side.
    [Ed. Note.' — For other cases, see Railroads, Cent. Dig. § 1168; Dec. Dig. <§=350(15).]
    5. Railroads <&wkey;303(6) — Negligence—Injuries to Invitee or Licensee.
    Where defendant railroad closed a grade crossing that had been in use for 20 years and improved a passageway under its track connecting portions of plaintiff’s inclosure, which passageway was used by plaintiff and his landlord for six years, whether plaintiff’s right to use such passageway was by implied contract or whether lie was a mere invitee was immaterial in determining the defendant’s negligence in maintaining a defective passageway.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 966; Dec. Dig. <®=303(6).]
    6. Negligence <&wkey;32(l) — Injuries to Invitee or Licensee.
    The owner of premises who invites others thereon or knowingly permits them to use or remain thereon must exercise reasonable care so to use and maintain such premises as to prevent injuries to such licensee or invitee.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. § 42; Dec. Dig. <§=32 (1).]
    7. Negligence <&wkey;61(l) — “Proximate Cause.”
    The “proximate cause” of an injury in a legal sense is not necessarily the immediate or solo cause.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. § 74; Dec. Dig. <&wkey;61(l).
    For other definitions, see Words and Phrases, First and Second Series, Proximate Cause.]
    8. Negligence <&wkey;62(l) — Proximate Cause-Intervening Causes.
    If defendant’s negligence be a concurring cause operating at the same time in producing the injury as an intervening cause, it may be the proximate cause if the injury or some like injury could have reasonably been foreseen as a consequence of such negligence.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 76, 78; Dec. Dig. &wkey;62(l).]
    9. Negligence <§=62(1) — Proximate Cause-Intervening Cause.
    An injury will not be said to be proximately caused by an intervening agency other than defendant’s negligence, unless such agency entirely supersedes the act of negligence and was in itself responsible for the injury, and was of such character that it could not reasonably have been foreseen or anticipated, but, if both agencies are required to produce the injury or if both concurrently contributed thereto, one will not exculpate the other, since each would still be an efficient cause.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 76, 78; Dec. Dig. &wkey;62(l).]
    10. Negligence <&wkey;4 — Reasonable Care — Probability of Same Injury.
    To incur liability for negligence, it is not necessary that the tort-feasor must or could have foreseen that the particular injury occurred, but it is sufficient if it reasonably appears that an ordinarily prudent person could have foreseen that a similar injury might arise as a probable result.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. § 6; Dec. Dig. <§=4.]
    11. Railroads <&wkey;350(32) — Negligence — Proximate Cause — Jury Question.
    The fact that plaintiff’s mule was frightened and ran away did not relieve defendant of liability for its negligence; the proximate cause of the injury being for the determination of the jury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1100; Dec. Dig. &wkey;350(32)j
    12. Negligence <&wkey;136(25) — Proximate Cause —Jury Question.
    The proximate cause of an injury is ordinarily a jury question.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 326-332; Dec. Dig. &wkey;136(26).]
    13. Trial <&wkey;2C0<8) — Instructions Covered by General Charge.
    The refusal of a charge requested by defendant on contributory negligence is not error, where no exception or complaint is made to the court’s general charge on that issue.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 657; Dec. Dig. <@=>260(8)-]
    14. Trial c&wkey;]9i(8) — Instructions—Invading Province of Jury.
    An instruction that plaintiff was guilty of contributory negligence in the use of an underground passageway if he knew such use to be dangerous was properly refused as submitting certain facts in evidence as constituting negligence which invades the province of the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 429, 430; Dee. Dig. <§=191(8); Negligence, Cent. Dig. §§ 356-360; Railroads, Cent. Dig. § 1383.]
    15t Trial <&wkey;253(4) — Instructions—Ignor-, ing Issues — Contributory Negligence — Proximate Cause.
    An instruction that charged defendant for liability for negligently maintaining an instrumentality which resulted in plaintiff’s injury, and which ignored the issues of plaintiff’s con-tributary negligence and the proximate cause of the injury, was improper.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 613, 616; Dec. Dig. &wkey;253(4).]
    16. Trial <&wkey;>296(3) — Instructions—Cure by Oti-iek Instructions.
    Error in giving such instruction held prejudicial, and not cured by other instructions properly presenting the issues of contributory negligence and proximate cause.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 709; Dec. Dig. <&wkey;>296(3).]
    17. Railroads &wkey;>348(l) — Negligence—Injury from Defective viaduct — Similar Viaducts.
    The fact that a railroad bridge is constructed in the same manner as all other bridges of its kind is not conclusive that its maintenance for use as the roof of an underground passageway between portions of an inclosure was not negligence.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1138, 1140, 1141; Dec. Dig. &wkey; 348(1).]
    Appeal from District Court, Montague County; C. F. Spencer, Judge.
    Action by Albert Cardwell against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    John Speer, of Bowie, and J. M. Chambers, of Dallas, for appellant. W. S. Jameson and Paul Donald, both of Montague, and J. A. Templeton, of Ft. Worth, for appellee.
   CONNER, C. J.

The plaintiff was a tenant upon the farm of the estate of D. C. Jordan, through which defendant’s line of railroad passes, the tenant houses being on the north side and the balance of the farm land on the south side of the right of way, which runs in a general direction from east to west. Panther creek crosses the farm running in a northerly direction, and over this creek defendant has a bridge about seven feet high beneath which a passway has existed since the road was built in 1885 or 1886. About 1895 the right of way was for the first time fenced. At this bridge the fences at either end were turned in and attached to the end of the bridge, leaving an opening way under the bridge and across the right of way. At the time the right of way was fenced there was a crossing on the right of way about 360 yards east of the bridge, which had been constructed and maintained by the railway company for the use of the owner of the farm, D. C. Jordan, from the time of the construction of the road until the right oí way was fenced. Gates were placed in the right of way fence, and the crossing was thereafter continuously maintained and used until about the year 1904 or 1905, when the defendant closed the gates leaving open the passway already mentioned under the bridge. At the time of closing the gates appellant’s section men leveled down the bed of the creek under the bridge so as to make it more passable. This bridge was constructed in the usual way with bolts extending from the timbers above down through the stringers and the ends of the bolts extended two or three inches below the underside of the stringers, and the bridge was at all times so low that a man could not ride on horseback under it without leaning over to prevent his head from striking the under parts of the bridge.

The plaintiff rented and moved upon the Jordan farm and cultivated it for the years 1910 and 1911, and in passing from the residence on the north to the farm on the south continuously used the passway under the bridge, until the time of his injury, as hereinafter detailed, which was in April, 1911. At the time of his injury plaintiff was attempting to cross the right of way riding one mule and leading another. About the right of way fence on the north side the mule he was riding became frightened at a piece of tie lying on the ground and ran under the bridge, where plaintiff’s head came in contact with the end of one of the bolts projecting below the stringers, thus causing the injuries for which damages were sought. The evidence shows that the plaintiff knew the conditions of the crossing under the bridge, knew of its approximate height, and of the extending bolts, and knew that it was dangerous, and reguests had been made several times of the section foreman to have the company open the gates that had been closed; the foreman, however, declining to so act, stated that he was without authority to do so, though the requests were forwarded to those “higher up.”

The plaintiff alleged that the crossing east of the bridge had been put in under a contract with D. O. Jordan, and that the closing of the gates in 1904 was illegal. It was further alleged that the crossing under the bridge was dangerous and negligently constructed and maintained.

The defendant answered by a general denial, plea of contributory negligence, and specially denied that it had designated the bridge as a crossing or authorized any agent or employé to so designate it.

The trial was before a jury, and resulted in a verdict and judgment in the plaintiff’s favor for the sum of $6,000, and the defendant railway company has appealed.

Appellant first insists that the court erred in refusing to give its requested charge peremptorily instructing the jury to find a verdict for the defendant. One ground of the contention is that the evidence conclusively showed that plaintiff was guiity of contributory negligence. It is true that the evidence without conflict snows that for more than a year prior to the plaintiff’s injury he knew that the bridge in question was not high enough to ride under it without stooping, and knew of the presence of the bolts extending below the timbers, and knew in a general way that tile crossing was a dangerous one; yet we do not believe that the court would have been justified in taking the issue away from the jury. The rule by which we should be guided has been oftén announced, but, perhaps nowhere more clearly than by Justice Brown of our Supreme Court in the case of Lee v. I. & G. N. Ry. Co., 89 Tex. 583, 36 S. W. 63. He there said:

“Negligence, whether of the plaintiff or defendant is generally a question of fact, and becomes a question of law to be decided by the court only when the act done is in violation of some law, or when the facts are undisputed and admit of but one inference regarding the care of the party in doing the act in question; in other words, to authorize the court to take the question from the jury, the evidence must be of such character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it.”

The rule was reiterated and applied in the case of Choate v. S. A. & A. P. Ry., 90 Tex. 82, 36 S. W. 247, 37 S. W. 319, and has been followed by many other cases that might be cited. In the case before us it is clear that the plaintiff at least violated no statute in attempting to use the underground passage as he did. The testimony to our minds makes it evident that after closing the gates east of the bridge, as was done, the servants and employés of the appellant company in a measure prepared the passway under the bridge to supply a needed passage across appellant’s tracks that had been destroyed by the acts of appellant in closing the long-standing gates theretofore provided. Plaintiff, as the testimony showed, had used this underground passway for more than a year, and perhaps others, and the record discloses no previous resulting injury. The jury in answer to the submission of the issue evidently found, under the court’s charge, that the plaintiff was not guilty of contributory negligence at the time and under the particular circumstances he attempted to go under the bridge on the occasion in question, and the mere fact that in a general way the plaintiff knew of the dangerous condition of the bridge is not conclusive against the plaintiff on the issue of his contributory negligence. In the case of G., C. & S. P. Ry. Co. v. Gasscamp, reported in 69 Tex. 545, 7 S. W. 227, the plaintiff, Gasscamp, was injured in attempting to pass over a bridge upon a public road where the highway crossed the tracks of the railway company. The plaintiff himself testified to the defective condition of the bridge and to his knowledge of the fact, and it was there contended, as here, that he was guilty of contributory negligence in that he attempted to ride across the bridge when he knew it was defective and dangerous. In disposing of the question the court said

“The issue of contributory negligence was submitted to the jury, and has by the verdict been determined in plaintiff’s favor. This is conclusive of the question, unless we can say that the act of plaintiff was negligent in law, or at least that it tended so strongly to establish negligence on his part that the verdict should not be permitted to stand. According to the rule in this court, in order that an act shall be deemed negligent p”ér se, it must have been done contrary to a statutory duty, or it must appear so opposed to the dictates of common prudence that we can say, without hesitation or doubt, that no careful person would have committed it. It is apparent that this cannot be said of the plaintiff’s conduct in this case.”

In this connection reference was made to the line of authorities, which in such cases imposes upon the traveler the duty of selecting another safe passageway, if there be one, and further says:

“It is accordingly held, on the other hand, that if the passenger or traveler have no other convenient way, the mere fact that he takes the chances of a known danger and attempts a passage is not controlling proof of his negligence. Whether the act be negligent or not depends upon the circumstances attending it; and the question is for the determination of the jury” —citing numerous cases with approval, in one of which (County Commissioners v. Burgess [61 Md. 29, 48 Am. Rep. 88]), the following language was used: In this case the knowledge of the plaintiff was some evidence of negligence, proper to go to the jury to be considered by them in conjunction with the condition of the bridge of which he had knowledge, and to be found a bar only in case they found the bridge from the proof to be wholly unfit for use, and that he knew its true condition.”

And our Supreme Court concluded by stating:

“This language recognizes the correct rule and is strictly applicable to the case now before us. The defendant by showing that many persons habitually used the bridge with safety proved that a mere attempt to cross it was not conclusive evidence of negligence.”

The ease from which we have quoted so liberally has not only been followed and applied by this court, but by many others. See Cowans v. F. W. & D. C. Ry., 40 Tex. Civ. App. 539, 89 S. W. 1116; 3 Notes to Texas Reports, p. 911.

In the case before us there was an attempt made to show that the plaintiff had another and a safe way to cross appellant’s right of way, in that there existed a grade crossing over appellant’s right of way with gates in the right of way fences some 900 feet east of the grade crossing that had theretofore been closed as hereinbefore stated, but we have attached but little, if any, importance to this testimony from the fact that it evidently was not a convenient crossing in the sense that we can say as a matter of law that the plaintiff’s failure to use it amounted to contributory negligence. In the same connection it was shown that the plaintiff’s landlord did not own the land on the north side of the right of way of the free grade crossing last mentioned, and no evidence, as we recall, has been pointed out indicating that the plaintiff would have had any legal right to cross the right of way from the farm on the south, which he was cultivating, to and over the land owned by such other person on the north so as to get to the tenant houses where plaintiff lived, situated almost immediately north of the crossing under the bridge. We think the issue of plaintiff’s contributory negligence was one for the jury’s determination.

It is further insisted that there was no proof of a contract on appellant’s part to maintain a crossing oyer its right of way, as plaintiff' alleged, and that plaintiff’s right to use the underground passage, at most, was that of an invitee only; but in these contentions we find no foundation for a peremptory instruction. It is true no witness testified to an express contract by appellant to maintain a crossing over its right of way, but it was shown without dispute that a crossing was provided and maintained by appellant as early as 1883 or 1880, and continuously used by D. 0. Jordan, the owner of the farm through which appellant’s line of railway extended, until the right of way was fenced in 1895, that at this time the crossing was continued, appellant placing in its right of way fence gates through which the owner might pass from his residence to the cultivated portion of his farm, and that the crossing and right of way gates were maintained until the gates were closed in 1901 or 1905, covering a period in all of some 20 years, and this evidence, in our judgment, authorized an inference that at the time appellant constructed its road in 1885 the owner, D. O. Jordan, then reserved, or to him was then granted by the appellant company, the right to pass over appellant’s right of way and track, as, it is evident, was an imperative need of the situation caused by the construction of the road, and the situation of the owner’s houses and cultivated lands. And, as it seems to us, the action of appellant’s employés in preparing the underground passageway, as they did, is susceptible of no other reasonable construction than that it was intended that such underground passageway should be substituted for that which had been closed, presumably for appellant’s convenience. It is certainly true that within the knowledge of appellant’s employés, not only of the section men, but of those higher up, the owners and tenants of the D. O. Jordan iarm continued to use, as they were compelled under the circumstances to do, the underground passageway from about 1904 or 1905, when the crossing gates were closed, until the plaintiff’s injury in April, 1911, and there is no evidence indicating that appellant, or any one for it, protested against such use of the underground passageway. On the contrary, the evidence as a whole relating to the subject, as we view it, amounts to a recognition on appellant’s part of a right to so use such underground passageway, or certainly to an invitation and permissive use of the same, and whether one or the other, as we think, can make but little difference in the degree of care required of appellant in maintaining the underground crossing.

No principle seems better established in the authorities than that the owner of premises who invites others thereon, or knowingly permits them to use or remain thereon, must exercise at least ordinary care to so maintain and use his premises as to prevent injuries to such invitees or licensees. Johnson v. Atlas Supply Company, 183 S. W. 31, by this court, not yet officially published.

It is further insisted with apparent force that appellant’s negligence in maintaining the underground crossing in the manner in which it was maintained, even if negligent, was not the proximate cause of the plaintiff’s injury, the contention being that the fright and running of the mule, and not the condition of the bridge, was the proximate cause, and the following cases are cited in support of this contention: T. & P. Ry. Co. v. Doherty, 15 S. W. 44; T. & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 .S. W. 162; Neely v. E. W. & R. G. Ry. Co., 96 Tex. 274, 72 S. W. 159; St. B. S. W. Ry. Co. v. Wilkes, 159 S. W. 126; Hartnett v. Boston Store, 265 Ill. 331, 106 N. E. 837, L. R. A. 1915C, 460. We shall not undertake to make a close analysis of these cases and attempt to show the particular respects in which they are distinguishable from the one we now have before us, but even in the Bigham Case, cited by appellant, it was said, among other things:

“We are not prepared to hold that in no case can the original cause of the injury be deemed the proximate cause, where an independent and disconnected agency has supervened and brought about the result. The fact of the intervention of an independent agency, it occurs to us, hears more directly upon the question whether the injury ought, under all the circumstances, to have been foreseen; and, where this latter fact appears, we think that the original negligent act ought to be deemed actionable.”

And in Seale v. Railway Co., 65 Tex. 274, 57 Am. Rep. 602, it was said:

“If the intervening cause and its probable or reasonable consequences be such as could reasonably have been anticipated by the original wrongdoer, the current of authority seems to be that the connection is not broken.”

The “proximate cause” in a legal sense is not necessarily the immediate or sole cause. If the negligence of the defendant be a concurring cause, operating at the same time in producing the injury as the intervening agency, it may be a proximate cause, if the injury, or some like injury, could have been reasonably foreseen to follow as a consequence of the negligence shown. See Gonzales v. City of Galveston, 84 Tex. 3, 19 S. W. 284, 31 Am. St. Rep. 17; Shippers’ Compress & Warehouse Co. v. Davidson, 35 Tex. Civ. App. 558, 80 S. W. 1032; Obermeyer v. Logeman Chair Co., 120 Mo. App. 59, 96 S. W. 677; Sickles v. M., K. & T. Ry. Co. of Texas, 13 Tex. Civ. App. 434, 35 S. W. 493, and authorities therein cited. As said in one of the cases cited (Shippers’ Compress & Warehouse Co. v. Davidson, supra):

“Intervening agencies sometimes interrupt the current of responsible connection between negligent acts and injuries, but, as a rule, these agencies, in order to accomplish such a result, must entirely supersede the original culpable act, and be in themselves responsible for the injury, and must be of such a character that they could not have been foreseen or anticipated by the wrongdoer. If it required both agencies to produce the result, or if both contributed thereto as concurrent forces, the presence and assistance ©f one will not exculpate the other, because it would still be the efficient cause of the injury.”

As it seems to us, the language just quoted applies here. The bridge in question was known by appellant and its employés, whose duty it was to see to the maintenance of its tracks and ditches, to be too low. The existence and situation of the projecting bolts were known; for appellant invokes proof of the fact that its construction was as all other bridges of like kind, and that in all such cases the superstructures were fastened to the stringers by protruding bolts, and as it seems to us, it could have been easily foreseen that an injury similar to the one in question might arise. It is not necessary that the tort-feasor must or could have foreseen that the particular injury complained of would probably occur. It is sufficient if it reasonably appears that a person of ordinary prudence in the light of all the surrounding circumstances should have foreseen that some injury of a similar character might arise as a probable result. M., K. & T. By. Co. of Texas v. Morgan, 49 Tex. Civ. App. 212, 108 S. W. 725; M., K. & T. Ry. Co. v. Harrison, 56 Tex. Civ. App. 17, 120 S. W. 254; Greer v. Railway Co., 158 S. W. 740. In the case before us it seems clear that the low structure of the bridge and protruding bolts was a concurrent operating cause of appellee’s injury, and, if the maintenance of the bridge in the condition it was shown to be constituted negligence, as was for the jury’s determination, then, as it seems to us, the mere fact that the mule was frightene'd at something by’the roadside does not prevent the negligence of the appellant, if any, from being the proximate cause in a legal sense of appellee’s injury. It must have been within the contemplation of appellant from the necessarily constant use of the passageway by a farmer and his tenants that it would be used by men and horses, and by the passage of wagons, and that occasion might arise when some unexpected happening would bring the user in contact with the low-hanging bridge. At least, as we think, it was for the jury’s determination; for, as said in Railway Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256:

“The true rule is that what is the proximate cause of an injury is ordinarily a question for the jury * * * it is to be determined as a fact in view of the circumstances attending it.”

The above rule is approved in Sickles v. Railway Co., 13 Tex. Civ. App. 434, 35 S. W. 495. The question of proximate cause was submitted to the jury in this case, and we think properly so. So that on the whole we conclude that for no reason assigned did the court err in refusing to give the peremptory instruction. Appellant’s first assignment will accordingly be overruled.

In appellant’s second assignment complaint is made of the reiusal of the court to give the following special instruction requested by appellant:

“Gentlemen, at the request of the defendant, I charge you as follows: That if you find and believe from the testimony in this case that the use of the underground passageway used by plaintiff was a dangerous one, and that all the dangers were apparent to plaintiff before an,d at the time he was injured, then he was guilty of contributory negligence in using the same, and your verdict will be for the defendant.”

We think this assignment may bp briefly disposed of by the statement that the court submitted the issue of plaintiff’s contributory negligence in a charge not complained of on this appeal by any assignment of error, and by the further statement that, as we understand the rule, it is improper for the court to submit certain facts in evidence as constituting negligence if found by the jury. It is held that such a charge takes from the jury the question of negligence as a fact. See I. & G. N. Ry. Co. v. Dyer, 76 Tex. 156, 13 S. W. 377. The charge quoted plainly contravenes the rule stated, and appellant’s second assignment will therefore be overruled without further discussion.

Appellant’s third assignment, however, we find presents reversible error: Therein complaint is made of the action of the court in giving the following special instruction at the plaintiff’s request, viz.:

“If at any time after closing of the gates crossing the agents of the defendant in charge of the right of way did any acts or said anything to encourage or invite the plaintiff to use said bridge crossing as alleged by him, and he thereafter did use said bridge crossing under the said bridge, defendant would be liable for any damage sustained by plaintiff if caused by the negligent manner in which said crossing was made or maintained under the bridge as heretofore indicated in the main charge, if defendant was negligent as alleged.”

A mere reading of the charge, as we think, renders it apparent that thereby the issue of plaintiff’s contributory negligence was excluded. Under the evidence it seems plain that the issue of contributory negligence was in the ease. It was so regarded by the court, and apparently by the parties; for, as stated, it was submitted- to the jury without objection on the part of either plaintiff or defendant, and the special charge requested instructed the jury, regardless of the issue of contributory negligence, to find for plaintiff upon a determination in his favor of the facts stated in the special charge. It may be noted, too, that the special charge likewise excludes the issue of proximate cause, which seems also to have been in the case, and was’certainly submitted by the court to the jury as one of the issqes by it to be determined.

Appellee, however, insists that the reference in the special charge to the main charge renders the above strictures unfound-eel, but we cannot so conclude. Tbe words “as heretofore indicated in the main charge” plainly, as we think, relate to the issue of appellant’s negligence in the matter of maintaining the bridge in the condition it was. At least such reference seems altogether insufficient to convey to the jury the idea that the special charge was to be qualified by the court’s instructions on the issues of contributory negligence and proximate cause. Nor can we say, as appellee further insists, that the special charge was harmless under the operation of Rule 62a (149 S. W. x). So that, as already stated, we have been unable to avoid the conviction that the special charge was upon the weight of the evidence, in that it ignored and excluded vital issues in the case to appellant’s probable prejudice, from which it must follow that appellant’s third assignment should be sustained and the judgment reversed. See I. & G. N. Ry. Co. v. Underwood, 64 Tex. 463.

A number of other'assignments of error are presented, but we cannot notice each particularly without unduly extending this opinion. We think it sufficient to say that they have been examined, and we find no reversible error in them. Possibly we should add that the fact that the bridge as originally constructed was constructed as all other bridges of the kind is by no means conclusive on the issue of appellant’s negligence in maintaining the bridge as an underground passageway. As originally constructed, it may have been and was intended for an altogether different purpose, and for the purpose intended in all things sufficient, but when later applied to the additional use as a covering for the passageway, as indicated by the testimony in this case, the question further appropriately arises as to whether appellant’s maintenance of the bridge in its original form for the new uses to which it was put constituted negligence.

We conclude that all assignments of error should be overruled except the third, which we sustain, and because of the error therein complained of it is ordered that the judgment be reversed, and the cause remanded.
      @=cjFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexos

      <S=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: CONLEY, C. J.

license: Public Domain

text:
    HOUSTON OIL CO. OF TEXAS v. STEPNEY et al.
    (No. 45.)

    (Court of Civil Appeals of Texas. Beaumont.
    May 11, 1916.
    Rehearing Denied July 3, 1916.)
    1. Adverse Possession <&wkey;85(2) — Hostile Possession.
    On the issue of title by adverse possession the material point of inquiry is whether claimant has actually claimed adversely to the owner, and it is not material whether his claim would have been different if his knowledge of the title had been more correct.
    [Ed. Note. — For other cases, see Adverse Possession, Gent. Dig. §§ 501-503; Dec. Dig. <&wkey;
    2. Appeal and Error &wkey;1058(2) — Harmless-Error — Conversation with Deceased.
    In trespass to try title defendants claiming by adverse possession, excluding evidence of instructions by plaintiff’s deceased grantor to his agent to allow defendants to occupy the land permissively, was not error, whore-witness was permitted to testify that under such instructions he had permitted defendants to remain on the premises without paying rent, and that one defendant had told witness he was holding possession under such an arrangement.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 4195, 4201; Dec. Dig. &wkey;> 1058(2).]
    3. Adverse Possession <&wkey;115(l) — Question eor Jury — Duration and Continuity of Possession.
    In such action evidence of occupation by defendants and their predecessors, and conflicting evidence as to interruption thereof hold not to warrant peremptory instruction for plaintiff.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 691, 701; Dec. Dig. <&wkey;>-115(1).]
    4. Adverse Possession &wkey;>100(l) — Constructive Possession.
    The rule that possession by the true owner of a part of a tract gives constructive possession of all not actually adversely held does not apply where the true owner cuts logs from land which are sold him by the adverse occupant.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 547; Dec. Dig. <&^100(1).]
    5. Adverse Possession <&wkey;116 (5) — Instructions.
    In trespass to try title, defendant claiming by adverse possession, a charge that “adverse possession is a claim inconsistent with and hostile to the claim of another,” was not misleading as suggesting that defendants’ possession could be adverse, although against “another” than the owner, where the court also submitted the direct question whether defendants did in fact claim adversely to the true owner, naming him, and the jury answered in the affirmative.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 66; Dec. Dig. <&^116(5).J
    6. Adverse Possession <&wkey;70 — “Claim of Right.”
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5681, defining adverse possession as actual and visible appropriation of tlie land, commenced and continued under a “claim of right” inconsistent’ with and hostile to the claim of another, entry under “claim of right” simply means an entry not subordinate to another’s title, but with claim of right to the land, hostile and adverse to the true owner, although the person so entering knows he has no title except such as possession may confer.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 394-414; Dec. Dig. <&wkey;> 70.
    For other definitions, see Words and Phrases, First and Second Series, Claim of Right.]
    7. Adverse Possession &wkey;>68 — “Color of Title.”
    Color of title, by which is meant that which has the semblance or appearance of title, legal or equitable, but which is in fact no title, is not necessary to perfect title by adverse possession, in the absence of statutory provisions expressly or by clear implication requiring it.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 387-393; Dec. Dig. <&wkey;> 68.
    For other definitions, see Words and Phrases, First and Second Series, Color of Title.]

      8. Advekse Possession <&wkey;12 — Claim ox Night.
    Claim of title or claim of right by the occupant is necessary in all cases where title is established by adverse possession.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 65, 387-393; Dee. Dig. <§»12.]
    9. Adverse Possession <&wkey;ll — Hostile Possession.
    No matter how exclusive and hostile to the true owner the possession may be in appearance, it cannot be adverse unless accompanied by the intent of the occupant to make it so.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 67 — 76; Dec. Dig. 11J
    10. Adverse Possession <&wkey;68 — Claim ox Bight — Length ox Claim.
    Entry and possession without a claim of right is nothing more than a trespass, and can never ripen into good title, no matter how long continued.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 387 — 393; Dec. Dig. 68.]
    11. Adverse Possession <&wkey;31 — Elements— Knowledge ox Owner.
    In order to make a good claim by adverse holding, the true owner must have actual knowledge of the hostile claim, or the possession must be so open, visible, and notorious as to raise the presumption of notice that the rights of the true owner are invaded intentionally and' with the purpose of asserting a claim of title adverse to his, so patent that the owner could not be deceived, and such that, if he remains in ignorance thereof, it is his own fault.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 128-133; Dec. Dig. <&wkey;> 31.]
    12. Descent and Distribution &wkey;>ll — Beal Property.
    Whore title to land has been established by limitation upon death of the occupants it descends to their heirs and becomes their separate property.
    [Ed. Note. — For other cases, see Descent and Distribution, Cent. Dig. §§ 40-44, 47, 180, 184; Dec. Dig. <&wkey;>ll.]
    13. Judgment &wkey;>707 — Conclusiveness — Parties.
    A judgment is not binding upon persons not parties nor privies thereto.
    [Ed. Note. — For other cases, see Judgment, •Cent. Dig. § 1230; Dec. Dig. <&wkey;>707.]
    14. Judgment <&wkey;743(2) — Oonclusiveness— Alter-Acquired Title.
    One is not estopped by a judgment that he has no title to land from setting up an after-acquired title, or a title based on the ten-year statute of limitations.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1253, 1276, 1284; Dec. Dig. &wkey; 743(2).]
    15. Appeal and Error <&wkey;10G2(l) — Harmless Error — Submission ox Interrogatory.
    The submission of an interrogatory the answer to which becomes immaterial by the submission and answer of other interrogatories is harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4212; Dec. Dig. 1062(1).]
    Appeal from District Court, Newton County; A. E. Davis, Judge.
    Action by the Houston Oil Company of 'Texas against Demps Stepney and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    Parker & Kennerly, of Houston, for appellant. Powell & Huffman, of Jasper, for ap-pellees.

      writ of error pending in Supreme Court.

   CONLEY, C. J.

This suit was brought by tile appellant, Houston Oil Company of Texas, as plaintiff below, against Demps Stepney and his wife, Lucy Stepney, and others, as an action of trespass to try title for recovery of a specific 160 acres of land, a part of the D. S. D. Moore league in Newton county, Tex., and for damages for cutting timber therefrom. All of the defendants filed disclaimers, except Demps Stepney and his wife, Lucy, who pleaded general denial, not guilty, and the ten-year statute of limitations.

By supplemental petition appellant alleged that during the receivership of the Houston Oil Company of Texas, to wit, on the 5th day of December, 1905, receivers in that cause filed suit against Demps Stepney in the United States Circuit Court for the Southern District of Texas, praying for the recovery of title to and the possession of the same land sued for herein, and, further, that the defendant, Demps Stepney, be enjoined from interfering with the title and possession of said receivers to said property; that said Demps Stepney filed an answer in said cause, and appeared by attorney, in which he undertook to establish title under the ten-year statute of limitations, that said receivers recovered judgment in said cause on the 28th of September, 1908, in which they were awarded title and possession of said 160 acres of land under the decree of the court duly entered, and which judgment they contend is a bar to said Demps Stepney and others claiming under him from disputing the title of the appellant in this cause.

By supplemental answer the appellees specially excepted to that part of the supplemental petition which sets up the federal court judgment as a bar: First, because said petition shows on its face that, if any judgment was obtained against Demps Stepney, the same was recovered in the United States Circuit Court for the Southern District of Texas, in the city of Houston, Harris county, Tex., in the exercise of its equity powers •in the receivership against the Houston Oil Company of Texas by intervention in said original suit in equity, No. 54, brought by the Maryland Trust Company of Baltimore against the Kirby Lumber Company and the Houston Oil Company of Texas, two Texas corporations, and that said court had no jurisdiction over the person of Demps Stepney or over the land in controversy, because the receivers of the Houston Oil Company of Texas, in their intervention No. -, against Demps Stepney, were asserting a legal title to real estate against Demps Step-I ney, who was in actual, adverse possession ol the land in controversy; and, second, because said receivers of the Houston Oil Company of Texas nor the Houston Oil Company of Texas were in possession of the land sued for and described in said judgment, and therefore could not entertain or maintain a suit in equity therefor; their right being one of ejectment, they had a complete and adequate remedy at law, which could be brought only in Newton County, Texas, where the land was situated, and the defendant, Demps Stepney, resided, and the said judgment is therefore void; third, because said pleadings show upon their face that Demps Step-ney, one of the defendants only in this cause, was a party to said suit in the Circuit Court of the United States, and that Lucy Stepney, who was one of the defendants in this suit, was not a party to the suit in which the alleged judgment was obtained.

The defendants also further answered, denying that any citation had ever been served upon Demps Stepney or his wife in the federal court suit, nor that they or either of them ever knew that a suit was filed against them in which the alleged judgment was obtained against Demps Stepney, and that the judgment entered therein is against Demps Stepney only for land, which at the time of the filing of said suit and obtaining said judgment was, and is now, the homestead of Demps Stepney and Lucy Stepney, and that said Lucy Stepney is and was not a party to said suit and judgment, and same is therefore void. All the demurrers and exceptions were overruled.

During the trial of this cause the appellees, to avoid the effect of this judgment, and in addition to attacking it as being void for want of jurisdiction, offered testimony to prove that Levi Levias and his wife, Mary Levias, who were the father and mother of Demps Stepney’s wife, Lucy Stepney, lived on the land in controversy and matured a complete limitation title to it before their death, and that consequently when they died Lucy Stepney and the other heirs (whose interest Demps Stepney and wife have acquired since the judgment in the federal court suit in 1908) inherited said land as their separate property, and that consequently the judgment against Demps Stepney alone was not binding on Lucy Stepney nor the other heirs who were not parties to that suit.

The court submitted the case upon special issues to the jury, as follows, to wit:

“Question No. 1: Have Demps Stepney and his wife, Lucy Stepney, had and held peaceable and adverse possession of the land described in their answer, cultivating,, using, or enjoying the same, for ten consecutive years prior to January 16, 1914? You will answer this question ‘Yes’ or ‘No,’ as you may determine the fact to be. * * *
“Question No. 3: Did Levi Levias and wife have and hold peaceable- and adverse possession of the land described in plaintiff’s petition and defendants’ answer, cultivating, using, or enjoying the same, for ten consecutive years prior to January 16, 1914. You will answer this question ‘Yes’ or ‘No,’ as you may determine the fact ta be.
“Question No. 4: Did Demps Stepney and his wife, Lucy Stepney, live upon the 'land described in plaintiff’s petition and in defendants’ answer in peaceable and adverse possession, claiming, using, cultivating, or enjoying the same, 'for more than ten years consecutively before the 1st day of January, 1914? You will answer this question ‘Yes’ or ‘No,’ as you may determine the fact to be. * * *
“Question No. 6: Did Levi Levias claim the land on which they were living adversely against Judge D. R. Wingate? Answer ‘Yes’ or ‘No.’
“Question No. 7: Did Levi Levias’ wife claim the land on which she was living adversely against Judge D. R. Wingate? Answer this question ‘Yes’ or ‘No.’ ”
The jury answered the questions as follows, to wit:
“Question No. 2 we answer ‘Yes.’
“Question No. 3 we answer ‘Yes.’
“Question No. 4 we answer ‘Yes.’
“Question No. 6 we answer ‘Yes.’
“Question No. 7 we answer ‘Yes.’ ”

Upon motion of the appellees, judgment was entered in their favor on the answers of the jury to the several questions propounded' to it, and from this judgment the Houston Oil Company of Texas has duly perfected an appeal.

Under the first assignment of error it is contended that the court erred in refusing to lot the appellant, Houston Oil Company of Texas, ask the witness Demps Stepney whether, if he had known that the land they were living on was at the time and during the early part of their claim the land of D. R. Wingate, he would have claimed it adversely against him; it having been developed by the evidence that D. R. Wingate owned the land during a part of the time limitation was running, and that Levi Levias, the father-in-law of Demps Stepney, was an old slave of Judge Wingate. The evidence shows that Levi Levias and Mary Levias moved on the land in controversy somewhere between the years 1871 and 1873, the exact date being in controversy; that Levi Levias lived on this place until his death, which is fixed by the witnesses from the year 1879 to 1889; that Mary Levias continued to live on this land until her death, which occurred some time subsequent to that of her husband, and the date of which is also in controversy, it ranging from 1886 until later years; that the land in controversy is situated principally on a 400-acre tract, and only partially on a 300-aere tract, both of which tracts belonged to Judge D. R. Wingate. The jury found from the evidence submitted to them that Levi Levias and Mary Levias, his wife, had matured limitation title to the 160 acres of land in controversy. The evidence also shows that neither Levi Levias nor Mary Levias, his wife, nor Demps Stepney, knew that Judge Wingate ever owned or claimed any of the land in controversy.

If limitation title was perfected in the heirs of Levi Levias and his wife, Mary Levias, at the date of the death of the latter, as the jury found by their verdict, it is immaterial wliat Demps Stepney might have done if he had known who the .true owner was. If, as a matter of fact, Demps Stepney had claimed the land in controversy for a sufficient length of time to mature limitation title, it is quite immaterial what he would otherwise have done had his information as to the ownership of the land been different. The material point of inquiry was whether he had actually claimed the land adversely to the owner, and not whether his claim would have been different if his knowledge of the title had been more correct. The court did not err in excluding this evidence, nor in refusing to give the special requested instruction based thereon defining the meaning of “adverse possession.” This assignment is therefore overruled.

Under the second assignment of error the appellant complains of the action of the court in refusing to allow it to ask the witness B. P. Wingate about the instructions he had received from his father, D. B. Wingate, with reference to permitting Levi Levias and his wife, and Demps Stepney and his wife, to live on the land which they claimed, and which was part of the land owned by D. K. Wingate, deceased, and a part of the land in controversy, without requiring them to pay rent either to him or to D. B. Wingate. The record shows that this witness had testified that his father made him agent for the purpose of looking after the lands. He said that “his father charged him what to do and told him to exempt old man Levi, and not to charge him any rent or anything that way.” The appellees objected to the introduction of this evidence, and the record shows that the court ruled:

“lie can testify that his father put him in charge of that land to look after the land, and ho can testify that he didn’t collect any rents from Levi Levias, because of the instructions received, but, as to telling what was told him by his father, detailing the conversation between him and his father, I don’t think it admissible, but he can tell what he did under the instructions.”

There was no error in this ruling of the court, and, besides, at another place in his testimony, this witness was permitted to tell the jury, without objection, speaking of tbe conversation which he had with Levi Levias before his death, that:

“He (Levias) told me that Father told him he could go out on any of tlie land he wanted to and stay there as long as he wanted to, and he wouldn’t charge him any rent for it.”

This is practically the same evidence as the court excluded. There is no merit in this assignment of error, and it is overruled.

Under the third assignment of error the appellant urges that the court should have given the special requested instruction to peremptorily return a verdict for the appellant—

“because the evidence failed to shpw ten years’ adverse possession beyond the amount of land in the actual possession of the appellees, as the testimony was undisputed that the owner of the real title was logging a part of the land in controversy, which was covered by deeds to him, and consequently, by reason of such actual possession incident to tho logging operations, he had constructive possession of all of the land covered by said deeds not in the actual adverse possession of tho claimants.”

An investigation of tbe evidence discloses tliat Levi Levias and his wife went on to the 160 acres in controversy and settled a home thereon between the years 1871 and 1873; that they cleared two fields and had in cultivation about 10 acres; that they built bouses, rciads, and fences on said land; that they lived there until they both died, some'time in the SO’s, the "dates of their respective deaths being heretofore referred to. Demps Stepney wont to live with his father-in-law, Levi Levias, in 1878 or 1879, and after his death continued to farm a portion of tho improvements for his mother-in-law, Mary Levias, until her death. After the death of his mother-in-law Demps Stepney and his wife continued to live on the land, and have claimed same until the filing of this suit in 1914. The evidence is conflicting as to the exact date Levi Levias went on the land. It varies from 1871 to 1S77, and the death of old man Levi Levias is also uncertain; the dates ranging from 1879 to 1889. These were all conflicting issues .which were settled by the special verdict in favor of ap-pellees, in answering questions 3, 6, and 7. The evidence as to the "logging operations was conflicting. While the evidence shows that Walter Wingate, acting for his father, did some small amount of logging on the 160-acre tract in controversy, yet Demps Stepney testified that he sold him the logs. While it is the rule of law that the true owner possessing a part of a tract of land shall give constructive possession of all of the land which is not in actual possession of the adverse claimant, yet, if Walter Wingate purchased the timber from Demps Stepney, and went on tbe land and cut tbe timber under sucb circumstances, there would not be any break in tbe continuity of tbe adverse claimant’s possession, and the rule as urged by tbe appellant in this assignment would not apply. The evidence upon this issue was also conflicting, and was settled by tbe above answers of tlie jury to tbe special issues propounded to them. This assignment of error is therefore overruled.

Under the fourth assignment of error appellant contends that the court’s charge on adverse possession, although abstractly correct, is misleading, in view of the fact that the court had, in the hearing of the jury, refused to permit the plaintiff to ask the defendant Demps Stepney if he .would have claimed the land in controversy adversely to Judge Wingate if he had known that Judge Wingate had owned it, because it states “that adverse possession is a claim inconsistent with and hostile to the claim of another,” whereas the charge should have stated that the possession is not adverse if the claimant does not claim the land against the person ■who is at tlie time the real owner; that this charge as given might reasonably have impressed the jury with the idea that, though the claimant did not claim against anybody who in fact owned it, ■ the possession was still adverse if they claimed against others.

The charge as given by the court on adverse possession is a correct statement of the law, and in connection with that charge the court also submitted to the jury the direct question as to whether or not Levi Levias and Mary Levias did in fact claim the land adversely to Judge Wingate, and the jury answered in the affirmative. There is no' reason, therefore, for the inference that the jury could have formed any impression that the possession of the land was adverse, within the meaning of the charge of the court, although the claimants were not holding against Judge Wingate. There is no merit in this assignment, and it is also overruled.

Under the fifth assignment of error the appellant urges upon the court that the verdict of the jury and the judgment of the court thereon are unsupported by the law and the evidence, because the uncontradicted evidence shows that there “never was any entry or possession held under a claim of right” by Levi Levias or his wife, or by Demps Stepney and his wife, or by any person under whom the appellees claimed; that the only claim of right which the appellees’ evidence shows ever to have been held by Levi Levias and wife was such only as might arise by reason of the bare fact of occupancy, conflicted with adverse claim, and that there was absolutely no evidence tending to show that the entry by Levi Levias and wife was made on land which he claimed to own, or that there was ever any claim of right under which the possession was held.”

Since the decision by the Supreme Court in the case of Stevens v. Pedregón, 173 S. W. 210, there seems to have been created some confusion in the minds of the profession as to the correct meaning to be given the terms “under a claim of right,” as contained in Vernon’s Say les’ Ann. Civ. St. 1914, art. 5681, which, in defining adverse possession, contains the following language:

“Adverse possession is an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.”

The ten-year statute of limitations of 1841, which remained unchanged until'1879, when the present statute was enacted, did not specially provide that the possession should be adverse, nor was the term “adverse possession” used or defined in the statute. However, the courts, in construing that act, held that the ' peaceably possession provided for upon the part of the claimant of necessity must be adverse to the claim of the true owner, and not held in subordination of his title. Redding v. Redding, 15 Tex. 251; Hudson v. Wheeler, 34 Tex. 366. In the early case of Portis v. Hill, Administrator, 3 Tex. 278, Mr. Justice Wheeler defined adverse possession as “an actual visible and exclusive appropriation of the land commenced and continued under a claim of right, either under an openly avowed claim or under a constructive claim, arising from the acts and circumstances attending the appropriation, to hold the land against him who is seized.” When the ten-year statute of limitations was amended in 1879, and “peaceable possession” and “adverse possession” expressly defined, the language of Mr. Justice Wheeler defining “adverse possession” wasi almost adopted verbatim et literatim. Since the enactment of the limitation statute in 1841, and since the amendment of 1879, there has been an unbroken line of decisions declaring that it did not matter how tortious or wrongful may-have been the seizure of the adverse claimant, if possession be continued for the time required by statute, it would give title, pre-clusive of all claims.

In the case of Charle v. Saffold, 13 Tex. 112, Mr. Justice Hemphill said:

“It thus appears that naked possession will secure title for 640 acres, without inclosure, ® * * and the circumstances under which the possession is taken are altogether' immaterial to the right, provided the occupant claimed for himself and adversely to all others. No matter how tortious or wrongful may be the seizure, if possession be continued for the time limited by the statute, it will give title, preclusive of all claims. * * * The object of the statute in its longer terms is not to settle questions in relation to good or bad faith, the right or wrong of the possession; it proceeds on other principles. As said in Cliolmondley v. Clinton, 2 .Tac. & Walker, 155: ‘A tortious act can never be the foundation of a legal any more than an equitable title. It is no more favored by a court of law than a court of equity, considered nakedly by itself, but the statute bar arises from other principles. Admitting the title, if it could be inquired into, to be clearly in favor of the plaintiff and against the defendant, still the question is whether he has prosecuted that title in time. The qui-et and repose of the kingdom, the mischief arising from stale demands, the laches and neglect of the rightful holder, and all the other principles of public policy take away the remedy notwithstanding the title veri domini and the tortious holding of the possession. To advert to the merits is to shift the question from the real subject of inquiry. The case never arrived at that point; it is stopped in limine in courts of equity as of law. The title is changed in both by operation of a public law upon public principles, without regard to original private right. ■ If the negligent owner has forever forfeited by his laches, his right to any remedy to recover, he has in effect lost his right to recover.’ ”

In the case of Kinney v. Vinson, 32 Tex. 126, the court said:

“The statute of limitations of ten years does not involve the question of good faith in the naked possessor. The language of the act is broad and unqualified, and the legislation was based, no doubt, upon the policy of compelling those who had a right of entry under title to take actual possession of their lands, and have the country settled at the peril of being ousted by those who would settle the land and improve the country. It is, then, a mere question of fact as to the adverse possession for that period of time.”

The result of the holding of the court in the ease of Craig v. Cartwright, 65 Tex. 413, was that, if one entered upon the land of another without right and erected houses and opened fields thereon, continuously occupying the house and using the fields for such purposes as the land is adapted thereto, although a trespasser, still, if this continues or he permitted by the true owner to continue for the period prescribed by the statute, without interruption, this “naked trespasser” will, under the law, lose that character, and become the owner-of the land.

The case of Link v. Bland, 43 Tex. Civ. App. 519, 95 S. W. 1110, is directly in point on the issue involved under this assignment. That case was a suit by J. W. Link against Richard Bland, in trespass to try title for 640 acres of land in Orange county. The defendant, among other defenses, pleaded the statute of limitation of ten years as to 160 acres of land sued for, including his residence and improvements, the 160 acres being specifically described in his answer, and disclaimed as to the remainder of the survey. There was a verdict for the defendant as to the 160 acres. Under the first assignment of error the appellant assailed the verdict of the jury and the judgment of the court in that case on the ground “that the undisputed evidence showed that defendant’s possession was not commenced or continued under a claim of right, as required by the statute.” The court, in considering the question, said:

“From the evidence in the record as to the appellee’s possession we deduce the following facts: The suit was begun September 8, 1904. In February, 1894, appellee, who was a married man, moved upon the section of land in controversy with his wife. He built a dwelling house with other usual improvements of a home, on the southeast quarter of the section, before moving on it, cleared land, put about 4 acres in cultivation the first year, which was after-wards increased to 10 acres in cultivation and 15 acres in pasture. He has continuously lived with his family on the land since first moving there in February, 1894, and has always claimed the land adversely to the owner and all other persons. When he first began to clear the land for his home, he thought the land was on section 22, a school section, but found out before his house was built, and before he took up his residence, that it was on section 19, and that the section belonged to the Texas & New Orleans Railway Company. Appellee’s intension was to hold the land in hostility to the owner and every one else, but he testified that he had no title to the land, that he had never bought it, nor inherited it,, nor had anybody ever given it to him. Knowing ho had no title, he took possession claiming, and intending to claim, the land by virtue of his possession, and continued to occupy it as his home under such claim based upon his possession alone, from and after February, 1894. His possession was during all this time open and notorious, and was exclusive and hostile to the owner and all others. Appellee testified that ho knew that the land was not his, and that he did not claim to own it when he first went on it; that he never asserted a better title than the Texas & New Orleans Railway Company, but his testimony shows clearly that what he meant by these expressions was that he had no title to the land, and never claimed to have any except what his naked possession gave him, and never asserted any hostile claim except such as could be predicated upon his possession. The undisputed evidence shows clearly that appellee’s possession was an actual and visible appropriation of the land, adverse to all the world, and that he at all times claimed whatever right such possession gave him, without at any time claiming to be the owner of the land in the sense of having title or right except such as inhered in, and was attached to, such possession.
“Appellant’s contention as to the law upon this state of facts can best be stated by the following quotations from his brief: ‘The language of the statute applying to the contention of appellant in this case is plain: “Adverse possession is an actual and visible appropriation of the land commenced and continued under a claim of right inconsistent with, and hostile to the claim of another.” Under this statute a man, to start the statute of limitations running, must bo an honest claimant of the land he is in possession of. The statute was made to protect persons honestly claiming their property and in the possession thereof. The statute was not made nor intended to deprive the owner of land of his title thereto, at the claim of a possessor thereof in bad faith, who was occupying the land without a claim of right; in other words, knowingly, without title, and without tlie right of possession. There is no law in Texas that protects a naked squatter on the lands of another. His term of occupancy as a naked squatter, and knowing that he had no right to enter or hold the land, and not claiming to have any such right, would never ripen into title, and possession of this kind was never intended to ripen into title or deprive the owner of any rights of property.’ Appellant lays much stress upon the provisions of article 3349, Iiev, St. 1895, defining adverse possession to be ‘actual and visible appropriation of the land commenced and continued under a claim of right, inconsistent with, and hostile to the claim of another,’ and it is strenuously insisted that the undisputed evidence shows that ap-pellee did not enter into possession under such ‘claim of right’ as is here intended.
“It cannot be denied that he claimed whatever right his possession entitled him to, hut it is insisted that the entry and possession must be upon at least a claim of ownership and right of possession, independently of the possession itself. We think this is a fair statement of appellant’s contention. The law has clearly been settled otherwise by an unbroken line of decisions in this state. It was held by the Supreme Court in Charle v. Saffold, 13 Tex. 112: ‘It thus appears that naked possession will secure title for 640 acres without inclosure, or 1,000 or 2,000 with inclosure; and the circumstances under which the possession is taken are altogether immaterial to the right, provided the occupant claims for himself and adversely to others. No matter how tortious or wrongful may be the seizure, if possession be continued for the time limited by statute, it will give title preclusive of all claims; * * * no question is made or is open relative to the bona tides "or mala lides of the possession.’ This doctrine has been followed in numerous cases, of which we need only cite the following: Craig v. Cartwright, 65 Tex. 421; Word v. Drouthett, 44 Tex. 369; Bruce v. Washington, 80 Tex. 372, 15 S. W. 1104; Cox v. Sherman Hotel Co., 47 S. W. 809. It is true that the statute defining adverse possession was not passed until the adoption of the Revised Code of 1879 (article 3198, Rev. St. 1879), and that of the cases cited Charle v. Saffold and Word v. Drouthett were decided prior to that date; but the statute referred to only incorporates as a part of the law the very construction placed upon the former law as to what was necessary to constitute adverse possession, as laid down in Portis v. Hill, 3 Tex. 279; Craig v. Cartwright, supra.
“There is no intimation in the evidence that appellee held in subordination to the title of appellant or any one else. He says that he intended to hold the land until he was put off, by which is evidently meant until ho was divested of possession by some one whose title' was superior to whatever rights his possession gave him. Appellee was a naked possessor, but such persons are clearly within the protection of the statute, even where they take and hold possession with the intention of acquiring title by limitation to something to which they have no claim otherwise. None of the cases cited by appellant in his brief support his contention. It will be found that all of them turn upon the point that the .possession has been in subordination to the title of the owner, or under circumstances which show that it was not intended to be adverse to the owner, or did not show a visible appropriation of the land. Appellee’s possession gave him title to 160 acres of the land.”

The language of the Supreme Court in the case of Stevens v. Pedregón must be read in the light of the facts which the court was discussing in that case. It is to be noted that the court was considering the statutory definition of adverse possession. Quoting Vernon’s Sayles’ Statutes, it said:

“Adverse possession is an actual and visible appropriation of the land commenced and continued under a claim of right inconsistent with and hostile to the claim of another. Article 5681.”

No matter in what jurisdiction the determination of what constitutes adverse possession may arise, the decisions and textbooks are unanimous in declaring that such possession, among other things, must be hostile. Color of title (and by which we moan that which has the semblance or appearance of title, legal or equitable, but which is in fact no title) is not necessary under any of the authorities to perfect title by adverse possession, in the absence of statutory provision which expressly or by clear implication required it. 1 Cyc. 1084. However, claim of title or claim of right by the occupant is in all cases necessary. 1 Cyc. 1028. No matter how exclusive and hostile to the true owner the possession may be in appearance, it cannot be adverse unless accompanied by the intent on the part of the occupant to make it so. The naked possession unaccompanied with any claim of right will never constitute a bar. Where a party enters upon land and takes possession without a claim of right, his occupation is subservient to the paramount title, not adverse to it. It is nothing more than a trespass, and, no matter how long continued, can never ripen into a good title. Sellman v. Hardin, 58 Tex. 86; Murphy v. Welder, 58 Tex. 235; Schleicher v. Gatling, 85 Tex. 270; 1 Cyc. 1028, 1029.

In order to make a good claim by adverse holding the true owner must have actual knowledge of the hostile claim, or the possession must be so open, visible, and notorious as to raise the presumption of notice that the rights of the true owner áre invaded intentionally, and with the purpose of asserting a claim of title adverse to his, so patent that the owner could not be deceived, and such that, if he remains in ignorance of, it is his own fault. 1 Cyc. 996 and 1000. This was the sense in which Mr. Justice Brown was considering the phrase “claim of right,” and entry under “claim of right,” as therein used, simply means an entry not in subordination of another’s title, but, on the contrary, that the claimant’s entry on the land and his acts and possession incident thereto are of such a character as to manifest an immediate intention and purpose to claim a right or title to the land in himself hostile and adverse to the true owner. The cases Mr. Justice Brown cites are all upon the subject of possession by claimants to land, which possession was not held sufficient to charge notice on the true owner that his land was being adversely claimed, or not sufficient to set in motion the statutory bar to the true ownei’’s right. This conception of the meaning of the term, as used in that case, is further emphasized by subsequent language found in the same opinion, for the court specifically says:

“At no time from the first entry upon the land to the institution of this suit does defendant in error claim to have actually resided upon the land, nor to have the land or any part so inclosed, nor does he claim that at any time he had a tenant upon it for a length of time sufficient to constitute limitation under any provision of the law, or any decision of this court. Such possession as he claims to have had consisted of cultivating a small portion of the land one year at one place, and the next year at another, and some years there was no cultivation of any part of the land for the want of water. There was nothing in his acts that would indicate a claim of ownership -[or, as we may say, and in the sense in which the term was used by Mr. Justice Brown, of a claim of right] to the land. All that defendant in error did in the use of the land might have been regarded as harmless trespass.”

We do not think it was the intention of this case to overrule the long-established principle in this state that the good or bad faith inception of the entrance of the adverse claimant was not a subject of inquiry in the perfection of title by limitation, under the ten-year statute.

The jury having found that title by limitation had been perfected in Eevias and his wife, upon their death the land in question descended to their heirs, and became the separate property of the four daughters. The judgment in the federal court rendered against Demps Stepney, waiving the question of the jurisdiction of the federal court to render any such judgment, was not binding upon such heirs; they not being parties to that suit. The title acquired by Demps Stepney from these heirs came to him subsequent to the rendition of the judgment in that suit, and therefore he is not estopped by such judgment from pleading the after-acquired title, nor from setting up the ten-year statute of limitation as a basis of recovery affecting tile 160 acres of land involved in this suit. The fifth assignment of error is therefore overruled.

The sixth assignment of error charges that the court erred in not submitting appellant’s special charge No. 1, on the subject of adverse possession, and in submitting the one the court gave. What we have said heretofore in considering the first and fourth assignments of error disposes of the questions raised hereunder, and this assignment is therefore overruled.

Under the seventh assignment of error appellant urges upon us that the court erred in submitting to the jury question No. 2; they contending that any limitation title which might have matured in whole or in part during the marriage of Demps and Lucy 'Stepney by reason of their occupancy of said land would be community property, and that therefore the judgment against Demps Stepney alone would be sufficient, he being the head of the family, to divest both him and his wife of all title' to the land in controversy. The jury having found on another issue that limitation title to the land in controversy had been perfected in Levi and Mary Levias, the father and mother of Demps Stepney’s wife, and the other three heirs, the land in controversy descended to them as their separate property, and, even if there was error in the submission of question No. 2, it was harmless under the finding by the jury that limitation title had been perfected to this land by Levi Levias and his wife. This assignment of error is therefore overruled.

Having heretofore determined that the heirs of Levi and Mary Levias owned the land in dispute in their separate right at the time of the institution of the suit in the federal court against Demps Stepney, and they, not being parties to that suit, were not bound thereby, it is not necessary at this time to examine into the question affecting the jurisdiction of the federal court in said cause to render the judgment it did against Demps Stepney, even if the federal court had jurisdiction of the subject-matter of that suit, since its jurisdiction was wholly lacking over the real owners of the land.

The judgment of the trial court is therefore in all things affirmed; and it is so ordered.
      (g^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g=nFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes