Upon a review by certiorari, the Court confines its discussion
to the matter relied on in procuring the writ.
An enclosure bounded on three sides by a fence and on the fourth
by deep water (Nueces Bay) will sustain a claim of adverse
possession under Rev.Stats., Texas, Art. 5674, if the other
elements -- claim under registered deeds, payment of taxes,
pasturing of cattle and exclusion of others -- are also
present.
227 F. 1015 reversed.
The case is stated in the opinion.
Page 247 U. S. 241
MR. JUSTICE HOLMES delivered the opinion of the court.
This is a suit to recover 1,280 acres of land in San Patricio
County, Texas. There was a trial by jury in which the court
directed a verdict for the plaintiff as to all but certain excepted
portions not in controversy here. Exceptions were saved by the
defendants, the petitioners, to their not being allowed to go to
the jury on the question whether they had a good defense under the
Texas statutes of limitation, but they were overruled and the
judgment was affirmed by the circuit court of appeals. A petition
for certiorari was allowed on the suggestion that there was a
manifest conflict between the ruling and the decisions of the state
court.
An Act of July 22, 1870, declared that a land certificate for
1,280 acres theretofore issued to General Sam Houston for military
services was a "just claim from its original date," and authorized
the issue of a "patent on the same, in the name of the heirs of
General Sam Houston, deceased." General Houston's will gave
discretionary power to his executors to make such disposition of
his personal and real estate as might seem to them best for the
interests of his family. In July 22, 1871, Houston's surviving
executor made an instrument purporting to convey the
above-mentioned land warrant and the interest of Houston's estate
and heirs to Colman, Mathis, and Fulton. On December 30, 1872, the
warrant was located on land already occupied by those grantees, and
the executor's conveyance to them was recorded on July 17, 1873.
The defendants held deeds under the successors of Colman, Mathis,
and Fulton. A patent was issued "to the heirs of Sam Houston,
deceased," on June
Page 247 U. S. 242
22, 1874. The plaintiff derived its title from these heirs under
deeds executed in 1914.
A plausible argument can be made that the working of the Act of
1870 and other pertinent facts and statutes which we do not recite
was to give to the land warrant the validity and effect that it
would have had if lawfully executed in General Houston's life. But,
as that is not the ground upon which the writ of certiorari was
asked or granted, we confine our discussion to the matter relied
upon in asking the intervention of this Court.
Hubbard v.
Tod, 171 U. S. 474,
171 U. S. 494.
The defendants alleged that, if the deeds did not give them a good
title, still they had held peaceable and adverse possession of the
land, using and enjoying the same, paying taxes thereon, and
claiming under deeds duly registered, for more than five years, and
therefore that this suit was too late under Rev.Stats. Texas, Art.
5674. They contended that the fact appeared as matter of law, and
also that at least the jury might find for them and sufficiently
saved the question as against the view taken by the court
below.
There was evidence that the land in question was part of a large
pasture fenced on the north along the Chiltipin Creek and on the
east and west by fences running from the creek to deep water in
Nueces Bay. There was evidence also that the defendants or their
predecessors had paid the taxes, had pastured their cattle there,
and excluded those of others, and that they claimed under duly
registered deeds. The ground in which the court ruled as it did and
refused requests of the petitioners was stated by it to be that the
water front on Nueces Bay was not "such a barrier as would put in
motion the statutes of limitation." This ruling was in deference to
Hyde v. McFaddin, 140 F. 433, 442. But that case was
decided on peculiar circumstances, and we do not think an extensive
citation from the Texas decisions necessary to show that, when the
other elements of adverse
Page 247 U. S. 243
occupation are present, deep water upon one side of a
parallelogram is as good a barrier as a fence. Evidently that is
the law in Texas as well as elsewhere, and an enclosure by fences
and the Nueces River has been said to sustain the defense of the
statute as well as fences all around.
Dunn v. Taylor, 107
S.W. 952, 956; 102 Tex. 80, 87. The arguments of the respondent on
this point, at the most, do no more than offer considerations of
fact that possibly it might be entitled to present to the jury when
the case next is tried.
Judgment reversed.