Black v. Goolsbee , 226 S.W. 463 ( 1920 )

This was a suit in trespass to try title. Appellees owned the record title, but appellants claimed the land under the statute of limitation of ten years. The trial court instructed a verdict for appellees, to which appellants duly excepted.

The father of appellants, under whom they claim, had cleared up a small field of four or five acres on the land in controversy, which he held under fence and which he cultivated every year for more than ten years. During this period of time necessary to complete the occupancy of ten years, the record owners went upon the land, cut and removed the timber, and built a tram across it, which was used in removing the timber; also, at this same time, they entered and cut and removed timber from the little field held by Black under fence. While this timber was being cut and removed, Black asserted no claim to it, nor did he oppose the record owners in cutting and removing it. There was no occupancy for ten years by appellants, and those under whom they claim, before the timber was cut, nor was there such occupancy for ten years after the timber was cut.

In Evans v. Houston Oil Co., 211 S.W. 605, we had before us a similar statement of facts. In disposing of this issue, we held that the entry by the true owner for the purpose of cutting and removing the timber, and the cutting and removing of the timber, were sufficient to stop the running of limitation in favor of the limitation claimant.

This principle is also recognized in South Texas Development Co. v. Manning, 177 S.W. 998. Quoting from the syllabus:

"The occupancy of uninclosed land for the purpose of cutting timber under authority from the true owner was sufficient to break the continuity of possession of an adverse claimant."

The judgment of the trial court is affirmed.