United States v. Stanton (495 F.2d 515, 1974)

LEWIS R. MORGAN, Circuit Judge:

In 1971, the United States filed suit to quiet title on a 77-acre tract in the Sabine National Forest in Texas. 2The United States claimed title to the entire tract under a general warranty deed dated December 27, 1935, and by adverse possession under the three, five, ten and 25-year statutes of Texas (Vernon’s Ann.Civ.St. Arts. 5507, 5509, 5510, 5519). The district court held the United States to be owner of not more than an undivided Yu interest in the land. The United States appeals that decision. We reverse, finding the United States to. be the absolute owner of the entire tract.

This action arose because of the following occurrences: In 1968, Adria Smith Stanton and her husband moved a mobile home onto a portion of the property in question, claiming an undivided Yu interest. The Stantons immediately brought an action for partition against the United States, but it was dismissed upon a motion based on sovereign immunity. Stanton v. United States, 434 F.2d 1273 (5th Cir. 1970). Nevertheless, the Stantons remained on the land, causing the United States to bring this action to quiet title.

The Stantons base their claim on occurrences beginning in the 19th Century. In 1887, John E. Smith purchased the tract in question. Two years later, Smith’s wife Laura died intestate, and under Texas law, her one-half interest in the land passed to their two children, Anna and Obie. Lynch v. Lynch, 130 S. W. 461 (Tex.Civ.App.1910). Smith then remarried and fathered five additional children who later inherited, along with Anna and Obie, two thirds of Smith’s one-half interest in the tract. Slavin v. Greever, 209 S.W. 479 (Tex.Civ.App.—Amarillo, 1919). At this point, Anna and Obie had accumulated title to Yu of the land. In 1910, Obie and Anna executed a deed, to L. E. King, purportedly conveying full title to the tract. King transferred the land to Temple Lumber Company in 1918 through a deed for the entire fee. Temple, in 1935, deeded the tract to the United States, the ownership of which was not challenged until 1968. The Stantons now claim an undivided Yu interest in the land based on Adria Smith Stanton’s being a daughter of John E. Smith’s second marriage.

The district court found that under the laws of Texas the possessory acts by the United States and its predecessor in interest were not sufficient to establish absolute title to the tract. We disagree.

There are at least two theories on which we can base our decision: (1) purported transfer by a co-tenant of the entire fee to a stranger, and (2) adverse possession under the laws of Texas. The facts set out both above and below strongly support both theories.

It is the law in Texas that a conveyance by one co-tenant to a stranger purporting to convey the entire common property, when followed by actual adverse possession, amounts to a disseizin of the non-participating co-tenants; and the recording of such conveyance followed by possession, constitutes notice of the repudiation. Parr v. Ratisseau, 236 S.W.2d 503, 506 (Tex.Civ.App.1971).

As has been stated, two of the co-tenants, Anna and Obie, executed a deed conveying the entire tract in 1910 to King. In 1918, the entire tract was deeded by King to Temple Lumber Company, which, by general warranty deed, conveyed it to the United States in 1935. At that point, the office of the Attorney General checked the title and found it in order. The trial record indicates that none of Smith’s heirs set foot on the land after 1913 until 1968.

Were the acts of the United States and its predecessors in title sufficient to satisfy the prerequisites of adverse possession under the co-tenant theory? There is no doubt that the acts were sufficient. Art. 5515 of the Revised Civil Statutes of Texas, 1925, states:

‘Adverse possession’ is an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.

When Temple Lumber Company, one of the predecessors in title, purchased the land by recorded deed in 1922, it paid all taxes due, cut timber and otherwise exercised ownership. In 1935, Temple conveyed the tract to the United States, reserving certain mineral rights and the right to cut timber for a 10-year period.

Following the conveyance to the United States, the Forest Service conducted timber stand improvement and the tract was “prescribe burned” twice to eliminate underbrush, briars, bushes and other matter that create litter on the ground attracting destructive insects and generally depreciating the land. About 1935, telephone lines connecting various Forest Service fire towers were put up along existing roads. A service road was constructed in 1936, and by 1966 its annual traffic flow was more than 10,000 vehicles. Also in 1936, the United States leased a portion of the land f