50 S.W. 628
McADAMS 
v. 
MOODY et al.
Court of Civil Appeals of Texas.
March 28, 1899.
Page 629
        Appeal from district court, Freestone county; L. B. Cobb, Judge.
        Action by W. L. Moody and others against George W. McAdams. There was a judgment for plaintiffs, 
and defendant appeals. Reversed.
        W. R. Boyd, for appellant.
        FINLEY, C. J.
        Mrs. Sarah Simmons instituted this suit against George W. McAdams, April 15, 1897, being a suit of 
trespass to try title to 104 acres of land, particularly described. Mrs. Simmons having died, W. L. Moody, 
L. F. Moody, James D. Moody, Jane Moody, and Mrs. Mary Clark, joined by her husband, A. L. Clark, under 
leave of the court, made themselves parties plaintiff, as the sole heirs of the deceased plaintiff, and filed 
amended pleadings. They specially claimed title by limitations of three, five, and ten years. Defendant 
answered by general denial, and pleas of limitations of three, five, and ten years. The case was tried by 
the court without a jury, and resulted in a judgment for the plaintiffs, from which the defendant appealed. 
The record contains a statement of facts, but no conclusions of fact and law by the trial judge.
        On the trial these facts were shown: The land in controversy was covered by two 
grants, namely, the Jesse Korn league and the M. Rionda 11-league grant. The Jesse Korn 
is the junior grant. The plaintiffs have regular chain of title back to the sovereignty of the 
soil, claiming under the junior grant. The defendant has the regular chain of title back to 
the government, claiming under the senior grant. Unless the plaintiffs made out their case 
under their plea of limitations of three years, the defendant should have had judgment. It 
was shown that the ancestor of plaintiff, under whom they claim, inclosed a part of his 
950-acre tract in 1878, extending his rail fence over the line of the Rionda league to the 
extent of 36 panels of fence, so as to inclose one-twelfth of an acre of the conflict. At the 
point where the fence extended over the Rionda line, the land of the plaintiffs adjoining 
was uncleared, and covered with brush and timber, and remained in that condition. 
Plaintiffs' ancestor held the land for a period of more than three years under these 
conditions before actual possession was taken of the Rionda league. The inclosing of the 
one-twelfth acre over the Rionda line is the only fact disclosed by the record, aside from 
the deed to the land, as the basis of adverse possession. Does this show such actual, 
visible, and exclusive adverse possession as will give title by limitation? It is not 
questioned that possession of a part of a tract under deed gives constructive possession to 
the entire tract. The possession of the part, however, must be an actual, visible 
appropriation of the land. In this case the fence of the plaintiffs, inclosing other land upon 
the Korn league, extended 36 panels over the Rionda line, embracing a very narrow strip 
of the Rionda grant, only one-twelfth of an acre in all. The land was all in the woods at 
this point, no cultivation or use being made of it. The lapping over to this extent may 
readily have occurred through mistake, and it is not unlikely that the owner of the Rionda 
grant, though reasonably familiar with his lines, would have failed to note the 
encroachment upon his land upon actually seeing the fence. We recognize the rule that 
the owner must be held to know his own boundaries, but such slight encroachments as 
may readily occur through mistake, and which do not actually appropriate any substantial 
part of a large tract of land, and which is evidenced only by a fence, we do not think 
should be held such actual, visible appropriation as is required to support limitations. 
Rev. St. art. 3349; Peyton v. Barton, 53 Tex. 304; Hartman v. Huntington (Tex. Civ. 
App.) 32 S. W. 562; Bracken v. Jones, 63 Tex. 184; Word v. Drouthett, 44 Tex. 370. 
There is no basis in the evidence for the other pleas of limitations of five and ten years. 
We presume that the court gave judgment upon the plea of three years' limitations, and 
we are of opinion that the evidence was not sufficient to sustain this plea. Judgment 
reversed, and cause remanded.