Opinion
Rehearing Denied Jan. 30, 1957.
Kelly, Looney, McLean & Littleton, Jackson Littleton, Edinburg, for appellant.
Henrichson, Bates & Hall, Edinburg, Luther Hughes, Weslaco, for appellees.
Page 852
W. O. MURRAY, Chief Justice.
In our original opinion we held that there was no evidence to show that Vasquez had ever repudiated his permissive tenancy under which he had entered upon the 100 acres of land in controversy. Meaders v. Vasquez, Tex.Civ.App., 278 S.W.2d 956.
The Supreme Court had held that in this holding we were in error, and has reversed and remanded the cause to our Court for consideration of the lesser questions of whether there is sufficient evidence to show such repudiation, and whether an implied finding by the trial court of such repudiation in so against the great weight and preponderance of the evidence as to be clearly wrong. Vasquez. v. Meaders, Tex., 291 S.W.2d 926.
Since this cause has been so remanded to us, we have read the entire statement of facts and again carefully gone over the findings of fact made by the trial court. We have read many authorities upon the subject, not only those cited by the Supreme Court but also many others. Doherty v. Jensen, Tex.Civ.App., 174 S.W.2d 77, modified Pearson v. Doherty, 143 Tex. 64, 183 S.W.2d 453; Warren v. Haverkorn, Tex.Civ.App., 191 S.W.2d 793 (Unknown Owner); St. John's Regular Baptist Ass'n v. Long, Tex.Civ.App., 211 S.W.2d 607 (Replacement of Fence); Walton v. Woolworth, Tex.Civ.App., 222 S.W.2d 347; Federal Land Bank of Houston v. King, 132 Tex. 481, 122 S.W.2d 1061; Cox v. Kirby Lumber Corp., Tex.Civ.App., 129 S.W.2d 376.
We have definitely come to the conclusion that the evidence is insufficient to show that Vasquez ever brought home to the true owner constructive notice that he was repudiating the permissive tenancy under which he admittedly entered into possession of the 100 acres, and, in any event, that such finding would be against the overwhelming weight and preponderance of the evidence. In view of the fact that there must be another trial of this case, we deem it improper to further comment upon the evidence.
We overrule appellant's third contention, to the effect that the evidence is insufficient to show adverse possession even if appellee's claim had been hostile from the beginning and he had never been a permissive tenant upon the land. However, this point is immaterial in view of our finding that the evidence is insufficient to show that Vasquez had repudiated his permissive tenancy.
Accordingly, the judgment of the trial court will be reversed and the cause remanded to that court for a new trial.