Luis Castillo v. Sylvia Luna and Anna Garcia ( 2021 )

Reversed and Rendered and Majority and Dissenting Opinions filed October 7,
2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00971-CV
LUIS CASTILLO, Appellant
V.
SYLVIA LUNA AND ANNA GARCIA, Appellees
On Appeal from the 295th District Court
Harris County, Texas
Trial Court Cause No. 2017-40999
MAJORITY OPINION
In this adverse-possession suit, the record owner appeals the judgment in
favor of the possessors. We agree that the evidence is legally insufficient to support
the judgment; thus, we reverse the trial court’s judgment and render judgment that
possessors take nothing by their claims.
I. BACKGROUND
Lots 10 and 11 on Gentry Street were previously owned by members of the
Sikes family. Manuel and Alice Luna began renting Lot 11 from Samuel Sikes
around 1966.1 At that time, Samuel’s sister Alberta lived in the house on Lot 10,
which lies immediately south of Lot 11.2 In 1973, Manuel bought Lot 11 from
Samuel in Samuel’s capacity both as an individual and as the independent executor
of Alberta’s estate.
Manuel’s wife Alice predeceased Manuel, and when Manuel died in 2012, his
five daughters jointly inherited the real property. Three of the children deeded their
shares in the property to their sister, Sylvia Luna; Sylvia’s sister Anna Garcia
retained her 1/5 interest in the home.
There is a garage in the southwest corner of the property, and a chain-link
fence runs along the southern side of the property. No one knows who built the
garage and the fence or exactly when either were built, but both were in place when
the Luna family began renting the property in 1966, and they believed that their
property included all of the land within the fence. Manuel Luna used to park his car
in the garage, and when the Luna children were growing up and dating, they and
their friends and other family members parked their cars in the strip of land between
the garage and the street.
In 2015, Luis Castillo bought Lot 10, which is on the other side of the chain-
link fence from the Luna home. When buying the property, Castillo had a survey
performed and discovered that the fence is located on his property, about three feet
1
When multiple people share the same surname, we use each individual’s given name.
2
We use the directions shown in the earliest survey, which shows the lots facing east and
Lot 10 lying directly to the south of Lot 11. Later surveys show the lots facing northeast, so that
the boundary between Lots 10 and 11 runs from northeast to southwest.
2
south of the boundary between Lots 10 and 11. Within the fence line, the southern
side of the Luna garage intrudes onto Castillo’s property by about eighteen inches.
At some point, Sylvia also had a survey performed, and it, too, showed that the
entirety of the chain-link fence and part of the garage were located on Castillo’s lot.
Castillo informed Sylvia he intended to remove the chain-link fence and
replace it with a wooden fence along the property’s true boundary. Sylvia then sued
Castillo, alleging that the three-foot strip was part of the Luna property by adverse
possession. She also sought injunctive relief. As a co-owner of the property, Garcia
intervened, similarly seeking declaratory and injunctive relief.
After this suit was filed, Castillo removed the chain-link fence, cut down the
trees that had been growing immediately to the north of the chain-link fence, and
erected a wooden fence along part of the true border.
After a non-jury trial, the trial court rendered judgment in favor of Sylvia and
Garcia. The trial court ordered Castillo to restore the status quo ante, removing his
wooden fence, replacing the chain-link fence, and planting trees in the same location
as the ones he had removed. The trial court permanently enjoined Castillo from
asserting any further claim to the disputed strip of property, and also permanently
enjoined Castillo from (a) “obstructing [Sylvia or Garcia], their invitees, successors
or assigns, from the disputed portion of the property”; and (b) “harassing [Sylvia or
Garcia], their invitees, successors and assigns, or taking any action that would inhibit
or impair [Sylvia or Garcia] from the quiet use and enjoyment of their property.”
In five issues, Castillo appeals the judgment on the grounds that (a) there is
legally and factually insufficient evidence that the Luna family actually used the
disputed strip of property; (b) the fence cannot support an adverse-possession claim
because it was a “casual fence” and Sylvia and Garcia presented no evidence of the
fence’s origin and purpose; (c) the presence of the garage does not support the
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adverse-possession claim; (d) because the Luna family did not adversely possess the
disputed strip of property, the trial court erred in rendering injunctive relief; and
(e) some of the injunctive relief is overbroad in that the judgment does not
adequately specify the acts to be restrained.
II. STANDARD OF REVIEW
Where, as here, findings of fact and conclusions of law were neither issued
nor properly and timely requested after a nonjury trial, we presume the trial court
made all of the factual findings necessary to support the judgment. See Shields Ltd.
P’ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017). A party may rebut the
presumption by demonstrating that the record evidence does not support the
presumed finding. Ad Villarai, LLC v. Chan Il Pak, 519 S.W.3d 132, 135 (Tex. 2017)
(per curiam).
A trial court’s presumed findings are challenged for legal and factual
sufficiency under the same standards that apply to a jury’s verdict. See Shields Ltd.
P’ship, 526 S.W.3d at 480. When a finding is challenged for legal sufficiency, we
review the evidence in the light most favorable to the finding and indulge every
reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802,
822 (Tex. 2005). We credit favorable evidence if a reasonable factfinder could, and
disregard contrary evidence unless a reasonable factfinder could not. Id. at 827. The
evidence is legally sufficient if it would enable reasonable and fair-minded people
to reach the finding under review. See id.
When reviewing for factual sufficiency, we consider and weigh all of the
pertinent evidence, and we will set the finding aside only if “the credible evidence
supporting the finding is so weak, or so contrary to the overwhelming weight of all
the evidence, that the answer should be set aside and a new trial ordered.” Crosstex
N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 615 (Tex. 2016).
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Under any standard of review, the factfinder is the sole judge of the witnesses’
credibility and the weight to be given to their testimony. N. E. Indep. Sch. Dist. v.
Riou, 598 S.W.3d 243, 255 n.50 (Tex. 2020). Thus, less evidence is needed to affirm
than to reverse a judgment. Yeng v. Zou, 407 S.W.3d 485, 489 (Tex. App.—Houston
[14th Dist.] 2013, no pet.).
III. ADVERSE POSSESSION
“‘Adverse possession’ means 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.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 16.021(1). Here, Sylvia and Garcia asserted their adverse-possession claim under
the ten-year limitations statute, which provides that “[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.” Id. § 16.026(a). To prevail under this statute, a person must prove by
a preponderance of the evidence that the possession of the disputed property by the
person, or by the person’s predecessors in interest, was (1) actual and visible;
(2) adverse and hostile to the claim of the owner of record title; (3) open and
notorious; (4) peaceable; (5) exclusive; and (6) involved continuous cultivation, use,
or enjoyment for ten years. See Kazmir v. Benavides, 288 S.W.3d 557, 561 (Tex.
App.—Houston [14th Dist.] 2009, no pet.).
In his first issue, which somewhat overlaps his second and third issues,
Castillo argues there is no evidence of the final element, that is, continuous
cultivation, use, or enjoyment of the disputed strip for ten years. We agree. To show
why this is so, we first identify the time during which the ten-year limitations period
must have occurred, and then we examine Sylvia and Garcia’s evidence of
continuous cultivation, use, or enjoyment during that period.
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A. The Relevant Time Period
“Claim of right” means that the claimant entered into and possessed the
property as his own. See De Arman v. Surls, 618 S.W.2d 88, 91 (Tex. App.—Tyler
1981, writ ref’d n.r.e.). Although the Luna family entered onto the property in 1966,
they did so as tenants. At that time, they did not claim ownership of the disputed
strip of land. Sylvia and Garcia claim only that the Luna family initially rented Lot
11, and that they believed the disputed strip to be part of that property. The earliest
date that the Luna family would have claimed ownership of the disputed strip was
October 10, 1973, when Manuel and Alice Luna bought Lot 11.
But, adverse possession need not continue in the same person; rather,
limitations may be proved by “tacking,” that is, by cumulating the periods of
possession of each holder and successor between whom there is privity of estate. See
TEX. CIV. PRAC. & REM. CODE ANN. § 16.023; Ellis v. Jansing, 620 S.W.2d 569, 571
(Tex. 1981); Masonic Bldg. Ass’n of Hous., Inc. v. McWhorter, 177 S.W.3d 465, 472
(Tex. App.—Houston [1st Dist.] 2005, no pet.). Sylvia and Garcia argue that the
period of the Luna family’s claim of right to the disputed strip can be tacked onto
the prior owner’s claim to the same land.
The problem with this argument is that the prior owners of Lot 11 were not
shown to have asserted over the disputed strip a similar claim of right hostile to the
owners of Lot 10. Garcia testified that her family rented Lot 11 from Samuel Sikes,
and both Garcia and Castillo testified that the owner of Lot 10 also had the surname
“Sikes.” Garcia further testified that Samuel Sikes’s sister Alberta Sikes lived next
door in Lot 10. Garcia and Sylvia further introduced into evidence the deed
evidencing Manuel and Alice Luna’s purchase of Lot 11, and the deed shows that
the Lunas purchased the property from Samuel T. Sikes.
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Significantly, however, Samuel Sikes sold the property both in his individual
capacity and in his capacity as the independent executor of Alberta Sikes’s estate. A
reasonable factfinder could not ignore the evidence that the Sikes family owned both
lots, and more particularly, that Alberta Sikes both resided at Lot 10 and co-owned
Lot 11. Under these circumstances, it would not be reasonable to infer that, regarding
the disputed strip, Samuel and Alberta Sikes, as owners of Lot 11, asserted a claim
of right hostile to the owners of Lot 10 in a manner that would allow Sylvia and
Garcia to “tack” their family’s period of alleged adverse possession onto the Sikes
family’s ownership. Cf. Gilbert v. Green, 150 Tex. 521, 525, 242 S.W.2d 879, 880–
81 (1951) (noting that the record owner and the possessor’s predecessor-in-interest
“were brothers-in-law, and there is no direct evidence of any hostility between them
while they were in possession” or that the predecessor’s “use of this land was made
under a hostile claim of ownership”); RESTATEMENT (THIRD) OF PROPERTY
(Servitudes) § 2.16 (2000) cmt. g (evidence that will overcome a presumption of
prescriptive use “is that the initial users were closely related”).
Thus, to prove adverse possession, Sylvia and Garcia needed to show that the
resident members of the Luna family cultivated, used, or enjoyed the disputed strip
for at least one continuous ten-year period after the Lunas purchased Lot 11 in
October 1973.
B. The Claimed Use
In determining whether adverse possession has been proved, we must consider
the nature of the land and the use to which it was put. See Mohnke v. Greenwood,
915 S.W.2d 585, 593 (Tex. App.—Houston [14th Dist.] 1996, no writ). The claimant
need only use the land for a purpose to which is adaptable, and in the same manner
an ordinary owner would use the property. Kazmir, 288 S.W.3d at 561. Sylvia and
Garcia rely on the use of the disputed strip as a garage and driveway.
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1. Use of the Wooden Structure as a Garage
The garage is a wooden structure at the back of Lot 11 and intrudes about
eighteen inches into Lot 10.3 Garcia referred to the structure as “my father’s garage,”
and she testified that Manuel Luna used to park his car there, but there is no evidence
of the years in which the Luna family used the garage, or the frequency of its use.4
Thus, there is legally insufficient evidence that, after purchasing Lot 11 in October
1973, the Luna family continuously used the garage for parking or any other purpose
for at least ten years.
2. Use of the Disputed Strip as a Driveway
Although Sylvia and Garcia refer to part of the disputed strip that lies between
the garage and the public sidewalk as a driveway, there is not an identifiable
improvement in this area. The ground is covered with vegetation, and before Castillo
cut them down, trees growing in the southernmost third or so of the disputed strip
overtopped the houses on both Lot 10 and Lot 11.
Garcia testified that the part of the disputed strip that lies in front of the garage
was used to access the garage and “[f]or parking the cars, especially when me and
my sisters were dating.” But again, Garcia did not identify a continuous ten-year
period when the strip was so used or the frequency of its use. Garcia testified that
she moved out of the home on Lot 11 in December 1979, and she last used the area
she refers to as a driveway “probably five years ago, maybe, or two years ago.”
Sylvia does not currently own a vehicle, and no evidence identifies when she last
3
A survey of Lot 11 performed in 1932 for Mrs. S.T. Sikes labels the building, “garage,”
and a survey performed for Castillo in 2015 and revised in 2017 labels the building, “wood shed
on dirt.”
4
We further note that the garage only intrudes onto Lot 10 by eighteen inches. There is no
evidence that the area of the disputed strip lying beside or behind the side of the garage was ever
used for any purpose.
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owned a car, but when asked, she agreed that she rents a car “occasionally.” Finally,
she testified that after Castillo built a fence on the boundary between the two lots as
shown in the property surveys, she “can’t bring in a car like [she] always did,” but
she did not identify when that period began or ended. Like Garcia, Sylvia did not
identify the length of time this area of the disputed strip was used as a driveway, or
the frequency with which it was so used. Thus, there is legally insufficient evidence
that the disputed strip was continuously used as a driveway for at least one ten-year
period in the time since the Luna family purchased Lot 11.
C. Claimants’ Remaining Evidence
As other evidence of their claim to the disputed strip, Sylvia and Garcia rely
on the existence of the four-foot-high chain-link fence, and, across the sidewalk from
Lot 11, a sloped concrete area that we will refer to as “the driveway approach.”
1. The Chain-Link Fence
The law of adverse possession has historically recognized two kinds of fences:
“casual fences” and fences that “designedly enclose” an area. The distinction arose
because unenclosed land is regarded in Texas as commons for grazing livestock.
McDonnold v. Weinacht, 465 S.W.2d 136, 141 (Tex. 1971). The mere grazing of
land casually enclosed by fences built for another purpose will not prove adverse
possession, so “[t]he 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.” Id. at 142. The distinction is significant because the
existence of a casual fence is itself insufficient to prove adverse possession. See W.
Prod. Co. v. Kahanek, 132 Tex. 153, 158, 121 S.W.2d 328, 331 (Tex. [Comm’n Op.]
1938).
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Castillo argues that the chain-link fence is a casual fence, while Sylvia and
Garcia assert that the fence designedly encloses the disputed area as part of Lot 11,
or alternatively, that there is no longer a need to distinguish between the two kinds
of fences in the context of residential neighborhoods. See KB Tex. Invs., LLC v.
Spiller, No. 01-16-00068-CV, 2017 WL 372164, at *10 (Tex. App.—Houston [1st
Dist.] Jan. 26, 2017, no pet.) (mem. op.) (“The distinction between casual and
enclosed fences is conceptually useful in rural grazing land disputes,
but . . . unnecessary in residential neighborhood disputes.”). We need not decide
whether the distinction between casual fences and designed enclosures applies to
residential neighborhoods, because we reach the same result in either case.
(a) If the distinction applies, then the fence is a casual fence.
If the historical distinction applies, then the chain-link fence at issue must be
considered a casual fence. “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) (sub. op. on denial of reh’g) (citing Orsborn v. Deep Rock Oil Corp., 153 Tex.
281, 288–89, 267 S.W.2d 781, 786 (1954)). That is the case here.
A survey of the Luna property conducted in 1932 shows that the southern side
of Lot 11 was then only partially fenced, with the fence stopping thirty-nine feet
from the front of the lot. The eastern end of the fence encroached on the neighboring
lot by 3.5 feet, and the western end of the fence encroached by 4.4 feet. Sometime
before the Lunas began renting Lot 11 in 1966, the fence shown on the 1932 survey
was replaced with a chain-link fence that extended the full 100-foot length of the lot,
but which lay no more than 3.3 feet past the lot’s southern border. No evidence
identifies the chain-link fence’s builder, origin, or purpose, and there is no evidence
that the Lunas or their predecessors ever altered, repaired, or maintained the chain-
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link fence. Cf. Spiller, 2017 WL 372164, at *8 (“Repairing and repurposing an
existing structure can be evidence of adverse possession if it is an obvious
improvement.”).
Sylvia and Garcia argue that the chain-link fence is not a casual fence
precisely because the partial fence that existed in 1932 was at some point replaced
with the chain-link fence, and the chain-link fence connects to the post of a gate that
provides the only vehicular access to Lot 11 and to the garage. From these facts, they
conclude that the chain-link fence was designedly erected to enclose the disputed
area as part of Lot 11. In other words, they argue that because the fence in fact
encloses the disputed area with Lot 11, the fence was built for the purpose of
enclosing the disputed area with Lot 11. This reasoning, however, is circular. See
also Mohnke, 915 S.W.2d at 593–94 (testimony about how the claimants used a
fence is not evidence of the purpose for which it was constructed).
Moreover, there is no evidence identifying the fence’s builder. It may have
been built by the record landowner, and a landowner does not abandon part of the
land merely by building a fence somewhere other than the property’s boundary. See
Masonic Bldg. Ass’n, 177 S.W.3d at 473 (“A landowner may fence part of his
property, but in so doing, he does not disclaim or negate his ownership of his
property outside the fenced area.” (citing Cox v. Olivard, 482 S.W.2d 682, 685–87
(Tex. App.—Dallas 1972, writ ref’d n.r.e.))); see also Ellis, 620 S.W.2d at 570–72
(owner of two adjoining lots dedicated an easement fifteen-feet wide on the western
border of one lot, and erected an eight-to-ten foot concrete retaining wall topped by
a chain-link fence three-and-a-half feet east of the easement; owner of lot to the west
did not adversely possess the strip of land between the easement and the retaining
wall, despite his belief that his property extended to the retaining wall).
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We conclude that, to the extent that it is relevant to an adverse-possession
claim in a residential neighborhood, the fence must be considered a casual fence.
(b) If the distinction is unnecessary, then the fence’s existence
does not affect our analysis.
Relying on KB Texas Investments, LLC v. Spiller, Sylvia and Anna argue that
the distinction between casual fences and fences that designedly enclose an area is
“unnecessary in residential neighborhood disputes.” Spiller, 2017 WL 372164, at
*10. In that case, the First Court of Appeals states that the Supreme Court of Texas
has “asked about the origin, substantial modification, or enclosed status of the fence
to determine if a fence unmistakably indicates a claim of exclusive ownership.” Id.(citing Rhodes, 802 S.W.2d at 645–46). According to the Spiller court, the Supreme
Court of Texas now instead “asks about the origin and use of an improvement, not
its enclosed status, to answer the same question of notice and intent.” Id. (citing Minh
Thu Tran v. Macha, 213 S.W.3d 913, 914–15 (Tex. 2006) (per curiam)).
We need not decide if we agree with Spiller. Even assuming, without
deciding, that the distinction between casual fences and fences that designedly
enclose an area is immaterial when the possessor claims to have adversely possessed
land in a residential neighborhood, the chain-link fence’s mere existence would not
affect our analysis. This is because the claimant bears the burden to prove “every
fact essential to that claim by a preponderance of the evidence.” Rhodes, 802 S.W.2d
at 645. The fence may be evidence of notice and intent—that is, it may be evidence
that the claimant’s possession of the property was actual and visible; that it was open
and notorious; and that it was adverse and hostile to the claim of the owner of record
title—but it is not evidence of the disputed land’s use, which is a separate element.
See Kazmir, 288 S.W.3d at 561.
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Sylvia and Garcia argue that they used the chain-link fence to mark the edge
of the driveway and as a barrier to prevent other vehicles or objects from accessing
the driveway. But, the “use” they were required to prove was not use of the fence;
rather, they had to prove ten years’ continuous use of the disputed strip of land under
a claim of right. And it is evidence of ten years’ continuous use that is lacking.
2. The Driveway Approach
Garcia also testified that, around 1975 or 1980, a concrete “driveway
approach” was installed, and its southern edge aligned with the chain-link fence. But
the driveway approach is outside the chain-link fence, and it extends no further than
the public sidewalk in front of the Luna home. There is no evidence that the structure
is on Lot 11. Sylvia and Garcia also failed to offer any evidence that they or their
predecessors built this structure, caused it to be built, repaired it, or maintained it.
The only evidence of its use is Garcia’s testimony that she last used the driveway
“[b]etween two and five years ago,” that is, after the driveway approach was built in
front of Lot 11.
On this record, we agree with Castillo that the evidence is legally insufficient
to support the judgment in favor of Sylvia and Garcia on their adverse-possession
claim. We sustain Castillo’s first three issues.
IV. INJUNCTIVE RELIEF
In his fourth issue, Castillo argues that because the adverse-possession ruling
in Sylvia and Garcia’s favor must be reversed, we must also reverse the award of
injunctive relief giving effect to the adverse-possession ruling. We agree.
We sustain Castillo’s fourth issue. It is therefore unnecessary to address his
fifth issue, in which he challenges particular aspects of that injunctive relief.
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V. CONCLUSION
Because the record is legally insufficient to support the judgment in Sylvia
and Garcia’s favor on their adverse-possession claim, we reverse the trial court’s
judgment and render judgment that they take nothing by their claims.
/s/ Tracy Christopher
Chief Justice
Panel consists of Chief Justice Christopher and Justices Wise and Hassan (Hassan,
J., dissenting).
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