law-adverse-possession
08-0196
ROMEO LONGORIA, ET AL. v. EXXONMOBIL CORPORATION, ET AL.; from Brooks County; 4th district (04-06-
00474-CV, ___ S.W.3d ___, 01-30-08, pet. denied May 2008)
(Justice O'Neill and Justice Green not sitting) (oil and gas law, mineral estate, adverse possession)
Adverse Possession—generally
Adverse possession is "an actual and visible appropriation of real property, commenced and continued
under a claim of right that is inconsistent with and is hostile to the claim of another person" throughout the
statutory period. Tex. Civ. Prac. & Rem. Code Ann. § 16.021(1) (Vernon 2002). The statute requires that such
possession be "inconsistent with" and "hostile to" the claims of all others. Minh Thu Tran v. Macha, 213 S.W.3d
913, 914 (Tex. 2006). One seeking to establish title to land by virtue of the statute of limitations has the burden
of proving every fact essential to that claim by a preponderance of the evidence. Rhodes v. Cahill, 802 S.W.2d
643, 645 (Tex. 1990). And inferences are never indulged in the adverse claimant’s favor. Bywaters v. Gannon,
686 S.W.2d 593, 595 (Tex. 1985).
The 10 year statute of limitations provides:
(a) A person must bring suit not later than 10 years after the day the cause of action accrues to recover
real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property.
Tex. Civ. Prac. & Rem. Code Ann. § 16.026(a) (Vernon 2002). Moore argues that there was no evidence that
Stone or Wolf cultivated, used, or enjoyed the disputed land in peaceable and adverse possession.
Adverse Possession—use of land
Wolf acquired title to his property in 1974. Stone acquired title to his property in 1982. The fence, which
included the disputed property with Stone’s and Wolf’s property, was built in the 1960’s by Stone’s father and
Moore’s father. There was no testimony as to its purpose. From Wolf’s testimony, it appears that he broke
ground on his claimed portion of the disputed property, that being about 3 acres, within the first two years after
he purchased his property to plant “oats or something.” Thereafter, he used the disputed land for cattle
grazing. After acquiring title to his land in 1982, Stone only used the disputed land for grazing and cutting hay.
The adverse claimant who relies upon grazing only as evidence of his adverse use and enjoyment must
show as part of his case that the land in dispute was designedly enclosed. McDonnold v. Weinacht, 465 S.W.2d
136, 142 (Tex. 1971). When the disputed tract of land has been enclosed with other land, especially when such
other land is held by the possessor under deed, the enclosure is casual or incidental, and the occasional
grazing of the disputed tract by cattle will not amount to such adverse and hostile possession and use as will
support the statute of limitations. Orsborn v. Deep Rock Oil Corp., 267 S.W.2d 781, 785 (Tex. 1954). If the
fence existed before the claimant took possession of the land, and the claimant fails to demonstrate the
purpose for which it was erected, then the fence is a "casual fence." Rhodes v. Cahill, 802 S.W.2d 643, 646
(Tex. 1990). Repairing or maintaining a casual fence, even for the express purpose of keeping the claimant's
animals within the enclosed area, generally does not change a casual fence into a designed enclosure. Id.;
McDonnold, 465 S.W.2d at 142-43.
Further, the general rule is that cutting and gathering a natural crop, such as hay, does not constitute
adverse possession. McDonnold v. Weinacht, 465 S.W.2d 136, 144 (Tex. 1971). And sporadic cultivation also
does not constitute adverse possession. See Stevens v. Pedregon, 106 Tex. 576, 579 (Tex. 1915); Dunn v.
Taylor, 113 S.W.2d 265, 268 (Tex. 1908).
Because there was no testimony about the purpose of the fence built and because the fence existed
before Stone or Wolf took possession of the property, the fence was a casual fence. Further, Stone and Wolf
only used the land for grazing and cutting hay[3] which does not constitute adverse possession. And, the fact
that Wolf broke the ground once to plant oats is, at best, sporadic cultivation and does not constitute adverse
possession. According to case-law, Stone’s and Wolf’s testimony is no evidence of adverse possession.
There being no evidence to establish adverse possession under the 10 year limitations period, Moore’s
second issue is sustained. The trial court’s judgment could not be based on possession under the 10 year
limitations period.
08-0492
G.Z. STONE AND W.D. WOLF v. KATHLEEN MOORE; from Limestone County; 10th district
(10-06-00382-CV, 255 SW3d 284, 04-02-08)(dispute over land, adverse possession)
We have determined that there was no evidence of adverse possession under the 10 year limitations period as
to Stone and Wolf. We have also determined that there was no evidence which would support the submission
of questions regarding the 3, 5, and 25 year limitations periods as to Stone and Wolf, and the question of
acquiescence. There is no other question answered by the jury which would support a judgment in favor of
Stone and Wolf. Therefore, the error in the charge caused the rendition of an improper judgment. Because of
our disposition of Moore’s first three issues, we need not discuss her fourth and fifth issues.
Conclusion. Accordingly, we reverse the trial court’s judgment and render judgment that Stone and Wolf take
nothing on their claims.