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clear right of way when the engineer whistles for signals, regardless of whether there was any special occurrence at that time to cause him to do so, his failure to discharge that duty was negligence, and the defendants would be chargeable with any injury resulting proximately therefrom. The character of the employment of the operator not being such as to warrant holding as a matter of law that it was his duty to look out before giving the signal, we are called upon to determine whether there is any evidence tending to prove that such duty devolved upon him. The testimony material to the determlnation of this question follows:

Excerpts from Plaintiff's Testimony. "I do not remember how long I had been on top of this car when we got into Higgins. As we approached every station we get orders; we are supposed to be governed by the board, and as the engineer whistles for signals the agent handles the board. I forget the correct name of this board, but it is a board that has a couple of arms projecting up above the track, one on the right side and one on the left in order to handle the trains coming in there. and when the engineer whistles for signals, the agent handles this board by a lever from the inside, and we got a proceed signal, and we went right through. By proceed signal, the best I can remember, I believe the right arm went down in order to show a clear right of way. We were at the end of the yard when the engineer whistled for the signal, and that is about one-half mile, I believe. When the board dropped for him, the engineer answered by whistles to let the trainmen know that he got a proceed signal *The depot there has kind of a bay window. That picture fully represents it; yes, sir; and there is a bay window or projecting window out this way (indicating) which is to enable the man in there can watch the trains from both ways."

and he went on.

"Q. You did not look for any obstructions? A. That was not my business.

"Q. You were busy when he whistled, and you just gave him the board? A. I gave him the board. I don't know how busy I was. see whether or not he had a clear right of way, "Q. You cannot say now that you looked to you based it on the instructions? A. The instructions you had were if he whistled, and you had no orders you just gave him the board."

The following excerpts are taken from the testimony of the station agent, W. H. Brewer. "The operator had charge of giving them the board. The operator was Cravens, and he is here as a witness. * * * I think there were three men in the station at that time, possibly four. I did not give the signal board when the whistle blew; it was another man that gave it. I did not know what the condition was as to the right of way. I did not look to see this. It is something like 300 feet down there to where these wires are. The window that we set in in receiving and answering signals from approaching trains is a bay window projecting out so we can look down the track either way; and it had glass windows in so that we can look down the track. The lever that operates this board is on that desk that sits in the bay window. When an incoming train whistles for the board, the man that is sitting there operating the board does his duty. He would look and see if there is a clear right of way, I suppose, but I don't know as it is incumbent to do that. The engineer does not whistle to know if there is a clear track; he whistles to know if we have orders for him. The literal meaning in the book is that when we drop the board that it is a clear track. You see we haven't time to run out every time a train whistles. We are busy. and when a man whistles for the board we haven't time to run and look up and down the track; we have to tend to our duties, which keep us at our desk all of the time. We give him the board when he whistles for it if we have no orders for him. He is supposed to see the

C. S. Cravens testified on direct examina- main track himself, and if he sees any obstruction as follows:

"I reside at Higgins, and resided there in October of 1910, and acted in the capacity of first trick [track] operator for the railroad. I should judge that the accident to the plaintiff occurred about 11 o'clock. I remember the time and was there that day, and was handling the board at that time. I gave a signal for the train to pass there, because the engineer asked for it by giving four blasts of the whistle, and I answered by giving him the board, to go on through. I meant by that that I had no orders for him. At that time I did not know, had no advice and had no reason to know, that there were any wires or overhead obstruction there. I knew nothing about the wires; no, sir; and had no reason to believe or think they were in a dangerous condition. I did not know that this house was being moved, and did not know that the telephone wires were being tampered with or had been tampered with."

On cross-examination he testified: "When he whistled I gave him the clear board, and just gave him the board because I had no orders for him.

tion on the track and don't stop he is responsible for it. He is out on the main line and can see more territory than we can. I do not know as a man on a train going 30 or 40 miles an hour would be charged with wires down at the depot when he whistles for the board; he could not see them. I don't think he could see them until he got pretty close. He could see the bulk of the wires I am pretty sure. How could you expect us to see the obstruction unless we could see it from the office. There was no obstruction between our office and those wires down there that I know of. There is no track where cars can stand that would obstruct our view of those wires from the office. There is nothing in the rules about our going out and looking up and down the track when we give a signal for a train to proceed nor to look up in the sky to see whether or not there is anything hanging from the sky. The right of way is located on the ground, and the railroad owns the right of way."

Was any part of the foregoing testimony in the light of the whole sufficient to go to the jury on the question of whether the operator was charged with the duty of inspecting the

right of way from his seat near the window templation of "any evidence" to support the before giving the proceed signal in response conclusion that it was the duty of the operato the engineer's whistle? The following ex- tor before answering the engineer's signal cerpt from the station agent's testimony is to look out on the right of way. Joske v. held by the Court of Civil Appeals to be suffi- Irvine, 91 Tex. 574, 44 S. W. 1059. cient:

"The lever that operates the board is on the desk that sits in the bay window. When an incoming train whistles for the board, [if] the man that is sitting there operating the board does his duty, he would look to see if there is a clear right of way, I suppose, but I do not know as it is incumbent to do that. The engineer does not whistle to know if there is a clear track; he whistles to know if we have orders for him. The literal meaning in the book is, when we drop the board, that is a clear

track."

We are of opinion that the Court of Civil Appeals erred in holding the testimony of the station agent sufficient to go to the jury on the question of the operator's duty.

As the facts seem to have been fully developed on the trial, we recommend that the cause be reversed, and judgment rendered for the defendants.

PHILLIPS, C. J. The judgment recommended by the Commission of Appeals in the above case is adopted and will be entered as the judgment of the Supreme Court.

It is plain from the station agent's statement quoted that it was not the duty of the operator to look out for the track. "The engineer does not whistle to know if there is a clear track; he whistles to know if we have orders for him." There is no testimony in the record contradicting this statement. In addition, the operator testified that he gave the engineer the "clear board" when (Commission of Appeals of Texas, Section B. he whistled "because I have no orders for him."

The station agent testified, "The literal meaning in the book is, when we drop the board,, that it is a clear track." There is no other conclusion to be drawn from the references of the station agent and the operator to a "clear board" and a "clear track” than that both expressions meant there were no orders for the engineer.

[2] That portion of the testimony quoted by the Court of Civil Appeals bearing directly on the operator's duty is as follows: "When an incoming train whistles for the board, [if] the man that is sitting there operating the board does his duty, he would look and see if there is a clear right of way, I suppose, but I do not know as it is incumbent to do that."

The only fact specifically stated by the witness having any relation to the operator's duty to look out is, "I do not know as it is incumbent to do that." It is true that the station agent says "he would look and see if there is a clear right of way I suppose" if the operator does his duty, but this supposition of the witness, even in the absence of his unequivocal statement that he did not know whether it was incumbent on the operator to look, does not carry with it that degree of probative force necessary to form the basis of a legal inference. At most, the supposition, alone, would do no more than raise a mere surmise as to what the duty of the operator was on such occasions. This testimony, even if we eliminate from it the positive statement referred to, and disregard the apparent contradiction mentioned by the Court of Civil Appeals, falls short in legal con

STILES et al. v. HAWKINS et al. (No. 14-2591.)

Dec. 21, 1918.)

1. HUSBAND AND WIFE 252-COMMUNITY PROPERTY-PUBLIC LANDS.

Whether public land purchased from the determinable by the character of the right by state is community or separate property is which the title thereto had its inception. 2. HUSBAND AND WIFE

252-COMMUNITY

PROPERTY-INCEPTION OF TITLE.

Where settlers on land, who had had the of 50 cents an acre under Act Aug. 26, 1856 land surveyed but had not made the payments (Acts 6th Leg. c. 128), assigned their interest to a then unmarried man, who, after subsequently marrying, made the payments and received patents for the land, the land became his separate property, subject to the right of the community for reimbursement for community funds used in completing the payments. 3. PUBLIC LANDS 178(1) PRE-EMPTION LAWS-ACQUISITION OF INTERESTS.

Under the Pre-emption Law, actual settlers

acquired a valuable right to their claims of such a character as to be subject of contract and assignment.

4. PUBLIC LANDS 172(2) POWER OF

STATE-RIGHTS OF SQUATTERS.

Where the state reserves land for railroad

purposes, and, upon the failure of the railroad, reopens the land to settlement, it is within the consideration shall be given those who have power of the state to say whether and what settled on the land during the period of reservation.

5. EXECUTORS AND ADMINISTRATORS 439 -ACTION CONCERNING LAND-PARTIES.

In trespass to try title brought by heirs of owner against his widow's devisees, it was not error to refuse to join the executors under the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

widow's will; such executors having no interest in the property.

6. TENANCY IN COMMON 15(10)-ADVERSE POSSESSION-REPUDIATION OF TITLE OF Co. TENANT-LIMITATIONS.

The possession of a cotenant, or tenant in common, will be presumed to be in right of the common title, and he will not be permitted to claim protection of the statute of limitations unless it clearly appears that he has repudiated his cotenant's title and is holding adversely thereto.

7. TENANCY IN COMMON COTENANT-ADVERSE

OF

TICE.

Action by Sam Stiles and others against B. F. Hawkins and others. A judgment for plaintiffs was reversed by the Court of Civil Appeals (158 S. W. 1011), and plaintiffs bring error. Judgment of Court of Civil Appeals reversed, and judgment of trial court reformed and affirmed by the Supreme Court as recommended by the Commission of Appeals.

Supple & Harding, of Waxahachie, and Langford & Chesley, of Hamilton, for plaintiffs in error.

15(7, 8) USES
S. C. Padelford, of Cleburne, and G. C.
POSSESSION-No- Groce, of Waxahachie, for defendants in er-

[blocks in formation]

129

11. EXECUTORS AND ADMINISTRATORS
(1)-REAL ESTATE-RECOVERY AS AGAINST
EXECUTOR.

In trespass to try title, a judgment against a defendant in possession as plaintiff's cotenant, whether considered as a devisee or as one whose interest as executor extended to only part of the land, was proper.

12. TRESPASS TO TRY TITLE 53-RENTS PERSONS LIABLE.

One who has never been in possession of property, the subject of suit for trespass to try title, and has never collected or received any of the rents, is not personally liable to plaintiff

for rent.

ror.

MCCLENDON, J. Plaintiffs in error brought this suit in trespass to try title against defendants in error to recover a onehalf undivided interest in two surveys in Ellis county of 160 acres each, and for partition. The main question for our determination is whether the land involved was the separate property of George Stiles or the community property of George and Zilpah Stiles. Defendants in error are devisees under the will of Zilpah Stiles, and plaintiffs in error are the heirs at law of George Stiles. The land sued for was a part of the Mis

sissippi & Pacific Railroad reserve. It was surveyed on April 2, 1857, one survey for W. W. Rawls, and the other for J. T. Rawls. On January 25, 1858, W. W. Rawls conveyed his survey to George Stiles for $200 cash. J. T. Rawls conveyed to James Smith on January 12, 1858, and the latter conveyed to George Stiles for $330 on September 7, 1858. George and Zilpah Stiles married on November 25, 1858. On September 10, 1859, George Stiles paid at the land office $162 to cover patent fees and amount due the state of 50 cents per acre on the two surveys, and patents were issued to him as assignee of his grantors; the patents being dated September 13, and November 23, respectively, 1859, and reciting that the grants were made "by virtue of an act to authorize the location, sale and settlement of the Mississippi & Pacific Railroad reserve passed on the 26th day of August 1856." George and Zilpah Stiles lived on the land until the death of the former in 1886. Zilpah Stiles continued to live upon the land after the death of her husband until about 1890, when she moved to Cleburne and later to Missouri. She married a man by the

name of Mullins about 1888. From the time of George Stiles' death until her death on December 13, 1909, she had possession of the land either in person or through tenants, cultivating it, collecting the rents, paying the taxes, and making some improvements, all of which were of a minor nature, except

that about two years before her death she

Error to Court of Civil Appeals of Third constructed a barn at a cost of about $600 to Supreme Judicial District.

replace one that had burned.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

The evidence showed that Mrs. Stiles visited Sam Stiles, one of the plaintiffs, and a brother of George Stiles, about twice a year for several years after the death of her husband; and Sam Stiles testified to a conversation between him and Mrs. Stiles, the effect of which, if true, amounted at least to a permissive use of the property by Mrs. Stiles during her lifetime. A similar conversation was testified to by one of the other plaintiffs.

This suit was filed on January 27, 1910. Zilpah Stiles by will devised the land in controversy to the defendants and named as executors B. F. Hawkins and Larkin New

the Revised Civil Code of Louisiana, in which state the community system prevails; and such is the rule under the statutes and decisions of this state." McClintic v. Midland Grocery Co., 106 Tex. 35, 154 S. W. 1158.

[2] In order to determine that question, it becomes material to examine the statutes under which the surveys were made. On December 21, 1853, the Legislature passed an act by which it was designed to promote the construction of a railroad from a point in the east line of the state to a point on the Rio Grande river at or near El Paso. Under

unappropriated land that belonged to the state of Texas east of the 103d parallel of longitude and between the 31st and 33d degrees north latitude, and all vacant and unappropriated land belonging to the state west of said 103d degrees of longitude and be tween 30 degrees 30 minutes and 32 degrees north latitude, were reserved by the state until the track of the railroad should be located by the company provided for in the act. After the location of the track, reservation was limited to 30 miles on either side of the

der the act had been located in accordance
therewith.
Gammel's Laws of Texas, vol. 4.
Special Laws, 5th Leg. p. 12;
The road
was never built, and on August 26, 1856, the

ton. The will was filed for probate on Feb-section 14 of this act, all of the vacant and ruary 2, 1910, and admitted to probate March 24, 1910, and the executors then qualified. The latter went into possession of the land and collected the rents up to the time of the trial. There were no debts except funeral expenses, and these had been paid when the cause was tried in October, 1911. The defendants answered by general denial, plea of not guilty, and specially pleaded the statutes of limitation of three, four, five, and ten years. They also, by appropriate pleadings, sought to have the executors made parties road, until the lands donated to the road unto the suit, which was denied. The cause was tried before a jury, and the court peremptorily instructed the jury that the land was the separate property of George Stiles, and on his death, there being no children, passed one-half to plaintiffs and one-half to Zilpah Stiles. The questions of limitation and rents were submitted to the jury, and upon their finding, in favor of the plaintiffs, judgment was rendered for plaintiffs for one-half of the land and one-half of the rents collected by the executors; and commissioners to partition the land were appointed. From this judgment, defendants appealed to the Court of Civil Appeals. That court reversed the judgment of the trial court and rendered judgment for the defendants for all of the land, holding that the property was the community property of George and Zilpah Stiles. One of the judges of the Court of Civil Appeals dissented. 158 S. W. 1011, 1015, 1021, 1025.

[1] Whether the land was the separate property of George Stiles or the community property of himself and wife is dependent upon the question as to whether the title had its inception in the conveyances to George Stiles or in the payment of the 50 cents per acre required to be paid to the state before patents could issue. Judge Hawkins states the general rule as follows:

"In a controversy like this, to which the state is not a party, involving an issue as to whether public land purchased from the state in the name of either husband or wife is community property or separate property, the status of the property must be determined by the character of the right by which the title thereto had its inception. Such, it seems, was the rule under the Spanish law; such has been the rule under

Legislature passed an act opening the re

serve to settlement. Section 1 of that act

provides that the lands in said reserve shall be subject to location and sale as thereinafter provided from and after the 1st day of January, 1857. Section 2 reads:

"Sec. 2. That all persons who are now settled upon any portion of the said reserve belonging to the state, shall pay fifty cents per acre dred and sixty acres, and the said parties are hereby required to have their lands surveyed by the district or county surveyor, and the field notes returned to the General Land Office by the 1st day of January, A. D. 1858, provided that all persons now resident on said reserve shall, on or before the 1st day of January, A. D. 1858, pay over to the Commissioner of the General Land Office the said amount of

for his or her claim not to exceed one hun

fifty cents per acre, for the amount of their claims. And the commissioner is hereby required to patent the surveys authorized by this section as other surveys."

Section 3 authorized the location of any genuine land certificate, etc., within the reserve after March 1, 1857; and section 4 authorized the Land Commissioner to sell scrip at 50 cents per acre after March 1, 1857, to be located upon any vacant and unappropriated land in the reserve. General Laws 6th Leg. p. 56; Gammel's Laws, vol. 4, p. 474. On November 28, 1857, an act was passed, by which settlers on the reserve were given until October 1, 1859, "to pay for their claims," and until April 1, 1858, to file their

field notes in the land office. This act pro- | classification or cultivation of the land and vides:

"Should any person fail to pay for his or her land by that time, the land so claimed by him, shall be subject to relocation as other public domain belonging to the state." General Laws 7th Legislature, p. 7; Gammel's Laws, vol. 4, p. 878.

By section 2 of an act passed February 10, 1858, which was for the relief of various preemption settlers and actual settlers in said reserve, it was provided "that all those actual settlers or their assigns" who were required under the act of August 26, 1856, to pay 50 cents an acre for their lands should have until January 1, 1859, to file their field notes in the land office. General Laws, 7th Legislature, p. 152; Gammel's Laws, vol. 4, p. 1024.

prior to the payment of the purchase price to the government. It was argued in that case that the mere concession was nothing more than a license to purchase so many leagues of land and ought not to be treated as property in being at the death of the wife, so as to entitle her heirs to claim an interest

in the land afterwards granted. The court,

however, held:

452."

"There is much force in the [above] argument, and it finds an apparent sanction in Webb v. Webb, 15 Tex. 274, Walters v. Jewett, 28 Tex. 192, and perhaps other decisions of this court; but the later decisions and the weight of aulants that the concession, having a money value, thority seem to favor the proposition of appeland being the subject of sale, was property, in which Mrs. Sanchez had a community interest which descended to her heirs at her death, and The respective contentions of plaintiffs and which attached to the grant subsequently exdefendants with regard to the inception of ti- tended in the name of her husband. Porter v. tle are substantially these: Defendants con- Chronister, 58 Tex. 54; Wilkinson v. Wilkintend, and a majority of the Court of Civil Ap-son, 20 Tex. 244; Yates v. Houston, 3 Tex. peals held, that the Rawlses were mere trespassers upon the public domain and acquired no interest in the land by virtue of the act of August 26, 1856, except the bare right or option to purchase from the state at 50 cents per acre, and that until the purchase money was paid to the state they had no interest in the land which they could convey. Plaintiffs contend, on the other hand, that under the act of 1856 the Rawlses were granted by the state, as actual settlers, the lands settled upon by them, not to exceed 160 acres to each, and that, when they had so far complied with the act as to have the land surveyed, their claim was definitely fixed to the land embraced within the boundaries of their surveys; that this claim was a valuable right; that it was assignable and was property within the community property statute; and that the subsequent payment of the amount due the state and the issuance of patent related back to the initial right granted to the Rawlses under the act of 1856 as definitely fixed by their surveys.

The question as to what is inception of the title within the meaning of our community property statutes has been the subject to frequent adjudication. The following illustrations of the application of the rule have been made:

Under the colonization act of March 24, 1825 (Laws of Coahuila & Texas, p. 15), Mex.ican citizens were granted the right to purchase eleven leagues of land under condition that they cultivate it within six years and pay therefor at stipulated rates for grazing, tillable, and irrigated lands. It was held in Manchaca v. Field, 62 Tex. 136, that where Sanchez, a married man, applied for and obtained on March 18, 1831, a concession for an 11-league grant, the land afterwards granted was the community property of himself and wife, although the wife died prior to the

In Welder v. Lambert, 91 Tex. 510, 44 S. W. 281, Power (a single man) and Hewitson obtained a contract with the state of Coahuila and Texas, under which they agreed to colonize certain families for which they were to receive certain premium lands. After a partial performance of the contract, Power married, after which the contract was completed and the grants made. After carefully reviewing the decisions, it was held that the lands were the separate property of Power; the community having only an equity therein represented by the amount expended and value of what was done after the marriage toward completing the contract. This case reviews and cites with approval the decision in Barbet v. Langlois, 5 La. Ann. 212. In the latter case, the husband at the time of his marriage was possessor of a tract of land fronting on Bayou Placquemine. Under an act of Congress, owners of land in Louisiana fronting on any water course were given a preference right to purchase the vacant lands lying adjacent to and in the rear of their plantations. It was held that such vacant lands, though purchased after the death of the husband, were his separate property. In both of these cases, the extension of the grant was held to relate back to the right under which the title arose or had its inception, which in the former case was held to be the colonization contract, and in the latter, the preference right to purchase.

In Creamer v. Briscoe, 101 Tex. 493, 109 S. W. 911, 17 L. R. A. (N. S.) 154, 130 Am. St. Rep. 869, Creamer and his first wife settled upon land in 1871 in order to acquire it as a homestead donation, under the laws then in force, and did everything necessary to that end, except to complete the three years' occupancy. After they had occupied the land for more than a year, Mrs. Creamer

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