Levada M. Wells, Trustee of the Wells Family Trust v. Weldon R. Johnson, Jr.

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-12-00378-CV
________________________
LEVADA M. WELLS, TRUSTEE OF THE WELLS
FAMILY TRUST, APPELLANT
V.
WELDON R. JOHNSON, JR., APPELLEE
On Appeal from the 46th District Court
Hardeman County, Texas
Trial Court No. 10,265; Honorable Dan Mike Bird, Presiding
August 28, 2014
OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
This appeal concerns title to 527.273 acres of land located near the Red River in
Hardeman County, Texas. Appellant, Levada M. (Marie) Wells, Trustee of the Wells
Family Trust (Wells), claims title to the disputed property by virtue of a chain of title from
the sovereignty of the soil to the present. Appellee, Weldon R. Johnson, Jr., claims title
to the same property by adverse possession. Following a jury trial in a trespass to try
title action and a verdict in favor of Johnson, the trial court entered judgment decreeing
him to be the owner of the disputed property. On appeal, Wells asserts the evidence
Johnson adversely possessed the disputed property was (1) legally and (2) factually
insufficient, and (3) the trial court erred in admitting hearsay testimony regarding the
construction of a designed enclosure or fence. We reverse the judgment of the trial
court, render judgment decreeing Wells to be the rightful owner of the disputed property,
and remand for further proceedings.
BACKGROUND
THE DISPUTED PROPERTY
The disputed property
consists of 527.273 acres of
land, more or less, out of (1) the
north part of Section 9, C.&M.
RR. Co. Survey, Abstract No.
549, (2) the north part of Section
10, C.&M. RR. Co. Survey,
Abstract No. 1851, and (3) the north part of Section 11, G.C.&S.F. RR. Co. Survey,
Abstract No. 587, all located adjacent to the Prairie Dog Ford of the Red River in
Hardeman County, Texas. The disputed property is represented by the shaded portion
of the adjacent map.
2
THE FENCED PROPERTY
The disputed property is part of a larger tract of land (the “fenced property”),
spanning west to east across Sections 9, 10, 11, 12, 13, bordered on the north by a
“wash fence”1 running generally northwest to southeast along the south bank of the Red
River, and bordered on the south by a second fence (the “south fence”) also running
generally northwest to the southeast. These two fences run in a parallel fashion and
extend northwest into Section 8, where they intersect, and southeast across Sections 9,
10, 11, 12 and 13, and then into Section 14, where they are connected by another
fence. The disputed property is that land between the two fences which lies in sections
9, 10, and 11. Those portions of the fenced property in Sections 8, 12, 13 and 14 are
not at issue here.
THE DISPUTE
As previously stated, Wells claims title to the disputed property by virtue of a
chain of title from the sovereignty of the soil to the present, whereas Johnson claims title
to the same property by virtue of adverse possession. It is undisputed that, but for
Johnson’s claim of ownership, Wells would own the disputed property and that she
continues to own the adjacent property immediately south of the disputed property.
Stated differently, Wells contends her property extends north all the way to the Red
River, whereas Johnson contends the northern boundary line of her property is the
1
At trial, Marie described the north fence as a “wash fence” because the fences were “hard to
keep up” due to the fact that “the winds will blow the posts out or water will come and wash the post out.”
She described a wash fence as being insufficient to enclose cattle.
3
south fence line.2 On May 9, 2007, Wells filed this trespass to try title action asserting
she was dispossessed of the disputed property by the unlawful entry and possession of
the property by Johnson or his predecessors in title. In addition to seeking a declaration
of title, Wells sought possession, lost rent/profits, and attorney’s fees.3 By his first
amended original answer, Johnson asserted that “all or a portion” of the disputed
property was created by accretion, thereby necessitating an “apportionment survey,”
which he contended was called for by the river frontage equitable apportionment
method set out in Sharp v. Womack, 127 Tex. 357, 93 S.W.2d 712, 716 (Tex. 1936).4
Johnson further claimed title to the disputed property by virtue of the three, five, ten and
both twenty-five year adverse possession statutes set forth in the Texas Civil Practice
and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 16.024, 16.025,
16.026, 16.027 and 16.028 (West 2002).5 For reasons discussed hereinbelow, our
review is limited to Johnson’s claims under §§ 16.026 (ten year) and 16.027 (twenty-five
year).
2
Ownership of the strip of land lying between the wash fence (the northern boundary of the
disputed property) and the south bank of the Red River was not determined by the trial court’s judgment.
3
See TEX. CIV. PRAC. & REM. CODE ANN. § 16.034(a) (West Supp. 2014). See also Cullins v.
th
Foster, 171 S.W.3d 521, 536 (Tex. App.—Houston [14 Dist.] 2005, pet. denied) (holding trial court had
discretion to award attorney’s fees in a suit for possession of real property, if the prevailing party recovers
from a person claiming rightful possession under a claim of adverse possession).
4
In Sharp, the Texas Supreme Court held that accretions to riparian lands should be equitably
apportioned to the owners of adjoining lands in proportion to the river frontage of those lands as shown by
the original field notes. Because the disputed property is not riparian property defined by a call to river
frontage (see footnote 2), this arcane apportionment theory was not submitted to the jury and has no
application to the facts of this case.
5
For convenience, unless otherwise indicated, subsequent references to the adverse possession
provisions of the Texas Civil Practice and Remedies Code may be cited simply as “section ____” or “§
____.”
4
On July 21, 2009, the trial court entered an order granting Wells’s motion for
partial summary judgment, declaring that Wells had established, as a matter of law, title
to the disputed property by virtue of a chain of title from the sovereignty of the soil to the
present. The trial court later entered two separate orders granting Wells’s no-evidence
motions for partial summary judgment on Johnson’s claims under the three and five
year adverse possession statute of limitations claims.6 In February 2012, a jury trial
was held on Johnson’s remaining adverse possession claims under the ten and twenty-
five year statutes.7
The TRIAL
Suit for possession was filed on May 9, 2007. A trial was held in February 2012,
and the following testimony was elicited:
MARIE W ELLS—At trial, Marie testified her father-in-law, R.M. Wells, bought
Sections 6, 7, 8, 9, 10, 11, and 16 in 1951. At the time, she and R.M.’s son, Robert
Marvin “Sonny” Wells, Jr., were dating. When purchased, the property had four
windmills and several corrals. In 1952, she, Sonny and some hired hands rebuilt the
wash fence along the Red River and extended it the full length of the river bordering the
disputed property. They also refurbished the corrals and extended them as well. The
rebuilding of the wash fence was completed in August 1952.
6
Johnson does not appeal the trial court’s order granting partial summary judgment finding Wells
established, as a matter of law, a chain of title to the disputed property from the sovereignty of the soil to
the present. Neither does Johnson appeal the trial court’s orders granting Wells’s partial summary
judgments on any action under the three year and five year adverse possession statutes. See §§ 16.024
and 16.025 (West 2002).
7
§§ 16.026, 16.027 and 16.028 (West 2002).
5
In 1953, she, Sonny, and several hired hands built a second fence, the south
fence, which was located several hundred yards south of the wash fence. South of that
fence, Sonny and Marie ran cattle—normally about seventy head depending on the
weather and grazing conditions. Sonny and Marie used the disputed property between
the two fences to run heifers separated from other cattle until breeding time as well as
cows getting ready to calve. They also “worked” cattle every year in August at the
corrals between the wash fence and the south fence. In 1953-54, they sowed grass on
the disputed property to improve grazing conditions.
In the late fifties, she and Sonny moved to town. Bill Ritchie was hired as a
ranch foreman, where he worked the ranch until 1988 when he began working on an “as
needed” basis. In December 1975, Sonny’s father, R.M., passed and, in June of 1985,
Sonny’s mother passed, leaving the property to Sonny and his sister. In July of 1986,
Sonny and his sister partitioned the land, with his sister receiving Sections 6, 7, 8 and
16, while Sonny received Sections 9, 10 and 11. Gary Naylor, a registered professional
surveyor, testified at trial that the deeds to Sections 8, 9, 10 and 11, all called for a
north-south boundary line, extending north to the Red River, and that he had surveyed
the property and established a fence line between Sonny’s and his sister’s properties,
i.e., between sections 8 and 9, passing across both the south fence line and the wash
fence line. The partition fence, surveyed and built, ran north-south, all the way to the
Red River, forming the western boundary of the disputed property. Marie testified no
one ever objected to or questioned the fence’s placement.
In 1989, Sonny and Marie leased their land for grazing to Doris Loveless, and
then later to Kevin Martin, who has leased the land ever since. They began leasing
6
their land for quail hunting to two brothers from Oklahoma and Pat Keck. They also
leased it to Charlie Brown to train dogs. From 1992 to the present, Pat Kennedy leased
the land to hunt deer and turkey. Marie testified she and Sonny always paid the
property taxes on their land, including the disputed property. She testified that, in all
this time, she never saw cattle with anyone else’s brand or ear tag and never saw any
improvements being made to their land.
Marie further testified that sometime after March 2004, Johnson called her and
asked if she wanted to sell the property. Johnson told her he bought some of their land,
but she was uncertain what land he was talking about. She asked him if he received a
warranty deed and told him she did not want to sell the property. Sonny died on March
9, 2005. After Sonny’s death, Marie received several offers to buy the property, but she
refused to sell. Later, she contacted Naylor and asked him to see about her land. He
returned telling her she needed to do something because her land was being taken from
her. She subsequently filed this trespass to try title action.
BARRY BRIDGES—Barry Bridges testified he was a farmer/rancher who knew
Sonny all his life and was familiar with ranch land along the Red River in Hardeman
County. He ranched and ran cattle directly west of the disputed property on land that
also abutted the Red River. He was familiar with the fences on the disputed property—
the wash fence and the fence several hundred yards to the south. He testified that
sometimes when he ran cattle in the riverbed of the Red River they would wander onto
Sonny’s land. According to Bridges, Sonny was very particular about who went onto his
property, and he always sought permission to enter Sonny’s land before retrieving his
stray cattle. He further testified that Ritchie, the Wells’ foreman, would accompany
7
them whenever they were on Sonny’s property. In all the times he was on the disputed
property, he never saw any cattle other than the Wells’ cattle. Further, he testified he
did not know whether Johnson’s predecessor in title, Blackie Moore, owned any land in
the area.
PAT KECK—Pat Keck testified he was familiar with the land owned by Sonny and
Marie because he leased the property for hunting purposes from 1986 to 1990. In
1986, before he leased the property, Sonny showed him the parameters of the property
and the fence lines. At the time, the wash fence was fairly close to the river, and the
land was low-lying river bottom, with salt cedars. Hunting was pretty good. He could
see the river from the fence. During his tenure as a lessee, he did not see any cattle
running on the land close to the river.
LUTHOR W ISEMAN—Luthor Wiseman testified his grandfather, Bill Ritchie, worked
for the Wells as foreman from 1960 to 1988, and thereafter “as needed.” When his
grandfather was foreman, Wiseman observed his grandfather check the Wells’ cattle,
build fences, feed cattle and work on windmills. He recalled repairing the wash fence
running up close to the river with his grandfather when he was five or six years old. He
testified they rode horses on the disputed property and recalled seeing wooden pens or
corrals. He did not recall seeing any other cattle on the disputed property other than the
Wells’ cattle.
JAMES RAY MOORE—James Ray Moore testified that his father, Blackie Moore,
first acquired land just north of the disputed property in the ‘50s. He became familiar
with Blackie’s cattle-stocker operation in 1964 when he was in high school and worked
8
approximately three weeks for Blackie.8 The disputed property was directly across the
Red River from Blackie’s property in Oklahoma and, in the ‘60s, the Moores thought the
disputed property was actually a part of their Oklahoma land. James testified that when
he first became familiar with the property there was a wash fence, or high-water fence,
along the south bank of the Red River bordering the north side of the disputed property.
Over Wells’s hearsay objection, James testified Blackie told him he built the wash
fence. According to James, Blackie’s cattle grazed the entire tract, from section 8 to
section 14. He testified he and Blackie expanded an existing corral, built a windmill,9
maintained two windmills, cleaned water wells, sowed grass a few times in ’64 or ’65, 10
maintained the wash fence and maintained a second fence located south of the wash
fence. In the ‘60s, 100 to 150 head of cattle ran on the disputed property six to nine
months out of the year. According to James, in the ‘70s and ‘80s, Blackie began
running as many as 300 head of cattle.
In January 1981, Blackie and his wife gave their two daughters a warranty deed
to the fenced property. The following day Blackie’s daughters deeded the property back
to Blackie but retained a one-half interest each in the mineral estate.11 In the early ‘90s,
8
James testified that a “cattle-stocker operation” was where you buy 300 to 400 pound cattle and
keep them until they reach 800 to 900 pounds and then sell the cattle.
9
James testified Blackie told him he built the only corrals and windmills on the disputed property
over Wells’s objection that the testimony was inadmissible hearsay.
10
James sowed Bermuda grass by running a grass drill in various places among the mesquites to
improve grazing for the cattle. He testified at trial he did not “know if you would call it cultivated,” but “[w]e
sowed improved grass in there.” He did not describe where on the ground the grass was sown.
11
The recording of a deed is only constructive notice of its contents to those whose duty it is to
search the records. D. T. Carroll Corp. v. Carroll, 256 S.W.2d 429, 434 (Tex. Civ. App.—San Antonio
1953, writ ref’d n.r.e.). Persons who hold good title to property, such as Wells, do not have a duty to
search the records daily to determine what subsequent instruments have been filed affecting title to their
property. Id. It is subsequent purchasers and creditors who are required to take notice of the filing of an
9
Blackie suffered a stroke and was no longer able to operate the cattle-stocker
operation.12 After Blackie’s cattle were sold, James continued to own and operate the
Moore property—on the Oklahoma side of the Red River. No cattle were grazed on the
disputed property “[p]robably not more than a year or two at the most,” until it was sold
to Mike Cary.
In 1992, Blackie quit-claimed the fenced property to Cary, and Blackie’s
daughters transferred their mineral interests to Cary’s wife, Dana, in return for a
$10,000 down payment and a note for $40,000. Cary grazed cattle on the fenced
property. In 1996, Cary was unable to make his payments on the note, so he quit-
claimed the property back to Moore Land and Cattle Corporation (MLCC). MLCC
subsequently leased the property to David and Lavinda Smith. Smith also ran cattle
over the entire property. In 1997, MLCC quit-claimed the property to the Smiths in
return for a down payment of $10,000 and a $50,000 note. The Smiths subsequently
sold the property to Johnson and, on March 4, 2004, the Smiths quit-claimed the
property to Johnson.
James testified no one ever interfered with Blackie’s use of the fenced property.
He also testified that neither Blackie nor MLCC ever paid any property taxes on the
disputed property. He testified he did run-off some quail hunters and four-wheelers on
___________________________
earlier filed deed or instrument. Id. Therefore, under the facts of this case, the recording of these deeds
is inconsequential to the issue of adverse possession.
12
After Blackie suffered a stroke, James set up Moore Land and Cattle Corporation, an
Oklahoma corporation. Blackie and his wife conveyed all their property to the corporation. The primary
shareholders were James’s wife and his wife’s sister. When Blackie’s wife passed in 2005, James’s two
children bought out his wife’s sister and James’s family now owns 100% of the corporation. Blackie
passed in the late ‘90s.
10
several occasions in the ‘70s and ‘80s but failed to identify whether the hunters and
four-wheelers were on the disputed property or other portions of the fenced property.
James also contacted Laramie McEntyre in the ‘80s and asked for an easement across
McEntyre’s property to reach the disputed property from the west. McEntyre granted
him an easement.
MIKE CARY—Mike Cary testified he grazed cattle on the entire fenced property.
The fenced property was remote, and he hardly ever saw anyone when he was on the
land. He ran his cattle in June, July and August, testifying the land would support as
many as 220 head on the native grass but only for a short period. In addition to stocker
cattle, he also had a cow-calf operation he ran throughout the year, and he performed
repair work on the fences and windmills. He did not use the property for hunting or
fishing.
DAVID SMITH—David Smith testified he was running cattle on Section 8
immediately west of Section 9,13 when James asked if he was interested in purchasing
the fenced property. Before accepting James’s offer, Smith visited Sonny. Smith
testified “I told Sonny that I was wanting to buy the Blackie Moore property that laid
between him and the river.” Smith “asked Sonny if he had any claim to the land
because Blackie had been grazing. He told me—he said when we built that [fence
south of the wash-fence] we didn’t want the property at that time and he said I don’t
want it now. He said as far as I’m concerned, that’s Blackie Moore’s.”
13
Sonny’s sister sold section 8 to Steve Griffith.
11
Smith testified he grazed approximately 100 cattle on the fenced property during
the summertime and moved the cattle back to the Griffith Place in the winter. He “[r]an
his cattle plumb to the other end of the whole expanse of property”—“[a]lot of times the
grass was better [on the east end towards Sections 13 and 14], and a lot of times you’d
find the cattle down on that end.” He also maintained the fences, put some water tanks
out, hunted possibly once a year and leased the land for bird hunters. Smith did not pay
any property taxes on the fenced property, and he paid off MLCC when he sold the
fenced property to Johnson. He testified there was really no other purpose for the
fenced property other than hunting and running cattle.
CHANCE JOHNSON—In 2004, Chance Johnson assisted Johnson, his father, with
the purchase of the fenced property. He testified that, prior to the purchase, he called
Sonny to inquire whether he wanted to sell his property. Chance told Sonny that
“Blackie’s old place” was under contract to purchase from Smith. Sonny did not
respond but told Chance he was not interested in selling his property. Sonny also told
Chance that Blackie came “down onto the river” and started running cattle there in
1953. Chance asked if Sonny had any claim to the land Smith was selling to Johnson,
and Sonny responded he “had no interest in the place.”
Chance also testified he helped his father report the fenced property for property
tax purposes to the tax assessor’s office. After buying the fenced property in 2004, he
and his father built two new fences, added roads, widened roads, added culverts,
cleared some timber, created an annual food plot or wheat field and cleared brush on
the fenced property. Chance did not specify where on the ground any of the
improvements were actually located other than that the improvements related to the
12
fenced property. He did testify the Johnsons used the property for general recreation
and hunting by guests.
WELDON JOHNSON, JR.—Johnson first became aware of the property in January
2004 when he, Chance and Smith drove across the fenced property after hunting
nearby. Before purchasing the fenced property, he called Sonny and asked if he
wanted to sell his property. Sonny said he was not interested. Johnson then told
Sonny that he “was planning to purchase the property between him and the river that
David Smith owned.” Sonny made no response. Johnson asked Sonny if he was
claiming ownership to the property, and Sonny replied Blackie had taken the place long
ago. After Sonny’s death, Johnson subsequently asked Marie Wells if she was
interested in selling her property, and she too said no.
Johnson relied on Chance to complete the purchase. He subsequently built
some fences, fixed some culverts, built roads, widened existing roads and made certain
portions accessible in the fenced property. He used the property for recreational
purposes and, during hunting season, visited every weekend. During off season, he
visited one or two weekends a month—staying in a thirty foot travel trailer that was not
located on the disputed property. Since 2004, he has paid property taxes on the fenced
property. He also applied for a wildlife management property tax exemption. He
obtained an easement from Steve Griffith to access the fenced property from the west
by traversing the Griffith Place along the Red River. He testified he paid $154,000, or
approximately $175 an acre, for the fenced property and received a quit-claim deed
from Smith.
13
ROBERT MARVIN W ELLS III—Robert Wells III is Sonny’s son. In 1986, the Wells
family sold off all their cattle and leased the property to Loveless for grazing. He
testified that Dale Martin and his son, Kevin, currently lease the property, and they have
done so ever since the Loveless lease terminated. Robert testified he never saw
anyone else’s cattle on the disputed property between 1986 and 2007.
KEVIN DALE MARTIN—Kevin Martin testified that he and his father have leased the
Wells property for grazing since 1992. Kevin did not recall grazing north of the south
fence line because that property consisted of tall salt grass and the wash fence was “so-
so at best.” Since 1992, Kevin had concerns about grazing in the area between the two
fences because he was concerned the wash fence might not be able to turn the cattle.
Kevin testified the cattle did not graze between the south fence and the wash fence due
to the condition of the wash fence and the possibility cattle would get out and cross the
Red River into Oklahoma. Kevin testified that if their cattle wandered over to Oklahoma,
it would be very difficult to get them back. Since leasing the property, the most cattle
Martin had ever observed on the disputed property between the wash fence and the
south fence was half a dozen.
THE VERDICT AND JUDGMENT
In response to the charge of the court, the jury found that prior to May 9, 2007,
the date Wells filed her trespass to try title suit, Johnson, or his predecessors, had held
the disputed property in peaceable and adverse possession by cultivating, using, or
14
enjoying that property for both a ten year and twenty-five year period.14 The trial court
subsequently issued its Final Judgment awarding title and possession of the disputed
property to Johnson. This appeal followed.
ADVERSE POSSESSION
The doctrine of adverse possession is based on statutes of limitation for the
recovery of real property. See §§ 16.021–.037 (West 2002 and West Supp. 2014).
Thus, in the context of a dispute concerning possession of real property, the rightful
owner of the property must institute suit within a specified period of time (three, five, ten
or twenty-five years depending on various statutory factors and conditions) or
subsequently be barred from recovery. Not only are suits for the recovery of
possession by the rightful owner barred, adverse possession provisions also operate to
vest the adverse claimant with title to the property. See § 16.030 (a) (West 2002).
Therefore, “[t]he concept of adverse possession allows a person to claim title to real
property presently titled in another.” Session v. Woods, 206 S.W.3d 772, 777 (Tex.
App.—Texarkana 2006, pet. denied) (emphasis in original).
Due to the harsh nature of disenfranchising someone of title otherwise rightfully
held, establishing title by adverse possession is not well-regarded in the law, and the
statutory prerequisites must be strictly complied with. See Thomas v. Southwestern
14
It should be noted that Johnson plead both twenty-five year limitations periods, §§ 16.027 and
16.028. Section 16.027 pertaining to claims by someone who “cultivates, uses, or enjoys the property”;
and, § 16.028 pertaining to claims by someone who “holds the property in good faith and under a deed or
other instrument purporting to convey the property that is recorded in the deed records of the county
where any part of the real property is located.” Although Johnson made claims under both statutes, the
jury returned an adverse verdict to the claim made pursuant to § 16.028. Johnson did not appeal that
finding. Accordingly, our discussion concerning the twenty-five year limitations period will be limited to
the provisions of § 16.027 only.
15
Settlement & Development Co., 131 S.W.2d 31, 34 (Tex. Civ. App.—Beaumont 1939,
writ dism’d judgm’t cor.). “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);
Osborn v. Deep Rock Oil Corp., 153 Tex. 281, 286, 267 S.W.2d 781, 787 (1954)
(holding that adverse claimant has the burden to prove every fact necessary to that
claim by “clear and satisfactory” evidence). Thus, the burden of proving each essential
element is on the party claiming title by adverse possession. Fuentes v. Garcia, 696
S.W.2d 482, 484 (Tex. App.—San Antonio 1985, no writ) (citing Davis v. Carriker, 536
S.W.2d 246, 251 (Tex. Civ. App.—Amarillo 1976, writ ref’d n.r.e.)). See Moore v. Stone,
255 S.W.3d 284, 288 (Tex. App.—Waco 2008, pet. denied).
Under Texas law, courts have interpreted every claim of adverse possession as
encompassing at least six essential elements: (1) visible appropriation and possession
of the disputed property; (2) that is open and notorious; (3) that is peaceable; (4) under
a claim of right; (5) that is adverse and hostile to the claim of the owner; and (6)
consistent and continuous for the duration of the statutory period. Glover v. Union Pac.
R.R., 187 S.W.3d 201, 213 (Tex. App.—Texarkana 2006, pet. denied). See § 16.021(1)
(West 2002). It has been said that adverse possession requires “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.” BP Am. Prod. Co. v.
Marshall, 342 S.W.3d 59, 69 (Tex. 2011) (quoting § 16.021(1)).
16
VISIBLE AND HOSTILE CLAIM
In order to satisfy the elements of an adverse possession claim, the claim of the
adverse claimant must be inconsistent with and hostile to the claim of the rightful title
holder. Id. at 69-70. Therefore, to claim property through adverse possession, "the
possession must be of such character as to indicate unmistakably an assertion of a
claim of exclusive ownership in the occupant." Rick v. Grubbs, 147 Tex. 267, 270, 214
S.W.2d 925, 927 (1948) (emphasis in original). In determining what constitutes an
unmistakable claim of ownership, hostile to the rightful owner, considerable importance
is attached to the nature of the land and its usual and customary uses. Wall v. Carrell,
894 S.W.2d 788, 801 (Tex. App.—Tyler 1994, writ denied). “It is well settled, that,
where a party relies upon naked possession alone as the foundation of his adverse
possession claim, it must be such an actual occupancy as the law recognizes as
sufficient, if persisted in for a long enough period of time, to cut off the true owner’s right
of recovery.” Rhodes, 802 S.W.2d at 645.
DESIGNEDLY ENCLOSED
While the fencing of land has long been recognized as visible appropriation of the
property enclosed, Kinder Morgan North Tex. Pipeline, L.P. v. Justiss, 202 S.W.3d 427,
439 (Tex. App.—Texarkana 2006, no pet.), use of the land for grazing cattle, along with
other related uses, is insufficient to establish title by adverse possession where the
disputed land was incidentally enclosed by a casual fence. See Mendoza v. Ramirez,
336 S.W.3d 321, 329 (Tex. App.—El Paso 2010, pet. denied) (holding no adverse
possession shown by family gatherings on property separated by a casual fence); Mead
v. RLMC, Inc., 225 S.W.3d 710, 715 (Tex. App.—Fort Worth 2007, pet. denied) (grazing
17
of land insufficient possession where unaccompanied by actual occupancy or open
use); Harlow v. Giles, 132 S.W.3d 641, 647 (Tex. App.—Eastland 2004, pet. denied)
(finding “[t]he law is well settled that the mere grazing of land incidentally enclosed by a
fence created by others cannot support a claim of adverse possession. [Citations
omitted.]”). Without more, mere fencing or the erection of other improvements will not
ripen into title without “actual and visible appropriation.” Dunn v. Taylor, 102 Tex. 80,
86, 113 S.W.2d 265 (1908).
Therefore, if the disputed property is range land and the adverse claimant is
relying on mere grazing of livestock to show adverse use, the claimant must also show
that the property is “designedly enclosed” by a fence. See Rhodes, 802 S.W.2d at 645
(finding the isolated sale of cedar trees and the clearing of land for the grazing of cattle
and goats was insufficient to establish adverse possession where tract was not
designedly enclosed); King Ranch, Inc. v. Garcia, No. 04-13-00605-CV, 2014 Tex. App.
LEXIS 8522 (Tex. App.—San Antonio Aug. 6, 2014, no pet. h.) (mem. op.) (finding
evidence that claimant had family gatherings on the property, grazed cattle, hunted and
occasionally grew crops was insufficient to establish actual visible appropriation where
fence existed before the claimant took possession); Moore, 255 S.W.3d at 289 (holding
no adverse possession of property enclosed by casual fence where only use was
grazing, cutting hay and sporadic cultivation); Harlow, 132 S.W.3d at 648 (finding use of
property for grazing of livestock and occasional hunting, including the construction of
deer blinds and deer feeders, was insufficient to establish adverse possession where
claimant failed to establish a “designed enclosure”).
18
Under applicable case law, fences are classified as either “casual fences” or
fences that “designedly enclose” an area. Id. at 646; King Ranch, Inc. 2014 Tex. App.
LEXIS 8522, at *15. “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, 802 S.W.2d at 646 (citing Osborn, 267 S.W.2d at
786). Moreover, repairing or maintaining a casual fence, even for the purpose of
keeping the claimant’s animals within the enclosed area, generally does not change a
casual fence into a designed enclosure. Id. Only if the claimant substantially modifies a
casual fence thereby changing the fence’s character may the fenced-in area become a
designed enclosure. Harlow, 132 S.W.3d at 647. The “designed enclosure rule”
applies whether or not an open range law is in effect in the county. Terrill v. Tuckness,
985 S.W.2d 97, 108-09 (Tex. App.—San Antonio 1998, no pet.).
CONSISTENT AND CONTINUOUS CLAIM
Possession of the claimed property must also be consistent and continuous,
uninterrupted by temporary vacancy, unless duration of vacancy is reasonable under
existing circumstances which reasonably show the adverse claimant did not thereby
intend to abandon the premises. Grayson v. Dunn, 581 S.W.2d 785, 788 (Tex. Civ.
App.—Waco 1979, writ ref’d). So long as a claimant’s predecessors in interest meet all
the requirements of adverse possession, a claimant may meet a statutory limitations
period by tacking the claimant’s period of possession with that of his predecessors in
interest. BP Am. Prod. Co., 342 S.W.3d at 69. See § 16.023 (West 2002).
19
CULTIVATION, USE AND ENJOYMENT
In addition to the general elements of adverse possession discussed above,
under both the ten and twenty-five year statutes applicable in this case, in order to
acquire title by adverse possession the property must be held by a claimant who
“cultivates, uses, or enjoys the property.”15 The cultivation, use or enjoyment of the
property must be of such character as would give the true owner notice of the hostile
nature of the claim. Rhodes, 802 S.W.2d at 645-46; Kinder Morgan North Tex. Pipeline,
L.P., 202 S.W.3d at 439-441 (adverse possession established where claimant
designedly enclosed tract, continuously grazed cattle, maintained property, dug a stock
pond, rebuilt and maintained levee, hired contractors to do bulldozer work on levee,
sprigged ground, planted Bermuda grass, filled in slough, and cut an emergency
spillway); Parkins v. McGehee, 133 S.W.3d 287, 293 (Tex. App.—Fort Worth 2004, no
15
The applicable sections of the Texas Civil Practice and Remedies Code are the following:
Section 16.026 – Adverse Possession: 10-Year Limitations Period
(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.
(b) Without a title instrument, peaceable and adverse possession is limited in this section
to 160 acres, including improvements, unless the number or acres actually exceeds 160.
If the number of enclosed acres exceeds 160 acres, peaceable and adverse possession
extends to the real property actually enclosed.
(c) Peaceable possession of real property held under a duly registered deed or other
memorandum of title that fixes the boundaries of the possessor's claim extends to the
boundaries specified in the instrument.
(Emphasis added).
Section 16.027 – Adverse Possession: 25-Year Limitations Period
Notwithstanding Disability
A person, regardless of whether the person is or has been under a legal disability, must
bring suit not later than 25 years after the day the cause of action accrues to recover real
property held by peaceable and adverse possession by another who cultivates, uses, or
enjoys the property.
(Emphasis added).
20
pet.) (adverse possession established where (1) tract constantly used for grazing, (2)
tract contiguous to claimant’s record title land, fenced within it and both tracts operated
as a single unit, (3) ranch manager rebuilt and replaced water-gapped portions of fence,
modified portions of fence and always maintained fence, and (4) general reputation in
the community had always been that the disputed property was part of claimant’s
ranch). The burden of proof is on the claimant to establish such cultivation, use or
enjoyment by a preponderance of the evidence. RLMC, Inc., 225 S.W.3d at 715.
ISSUE THREE—HEARSAY
For purposes of logical sequence, we will first address Wells’s third issue
concerning whether the trial court erred in admitting the testimony of James Ray Moore
concerning statements made to him by Blackie regarding Blackie’s construction of the
wash fence. In particular, Wells contends the statements were inadmissible hearsay,
offered in evidence in violation of Rule 802 of the Texas Rules of Evidence. Johnson
contends the statements were admissible under an exception to the hearsay rule. He
further contends the statements were cumulative of other probative evidence, and
therefore, any error in admitting the statements was harmless.16
ANALYSIS
Marie’s direct testimony was that the wash fence forming the northern border of
the disputed property, and generally tracking the southern bank of the Red River, was
16
Wells also objected to James’s testimony concerning hearsay statements made to him by
Blackie regarding the construction of corrals and windmills; however, she does not raise those complaints
on appeal. Because those statements deal with the nature and character of the adverse use of the
disputed property, and not the issue of a “designed enclosure,” we will assume, for purposes of this
opinion, the trial court did not err in admitting those statements.
21
rebuilt by her and Sonny in 1952, implying that the fence existed prior to that date. On
the other hand, James’s testimony was that his father told him he built the wash fence
when he first acquired land in Oklahoma, just north of the disputed property in Texas.17
To the extent that this statement was being offered in evidence to prove the truth of the
matter asserted, i.e., that Blackie built the wash fence, it was a hearsay statement. TEX.
R. EVID. 802(d) (defining a hearsay statement as “a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted”). See Tuckness, 985 S.W.2d at 110 (claimant’s testimony that
predecessor in title told him he chased hunter off disputed land was hearsay);
Hernandez, 611 S.W.2d at 736-37 (son’s statement that his deceased father told him he
did not want to knock down trees on disputed property because he was not sure who
owned the property was hearsay); Boettcher v. Gould, 577 S.W.2d 806, 807-08 (Tex.
Civ. App.—Austin 1979, writ ref’d n.r.e.) (testimony that father told claimant that the
county built the fence when the road was created was hearsay); Green v. Blanks, 342
S.W.2d 141, 148 (Tex. Civ. App.—Austin 1960) (son’s testimony as to what his
deceased father said about use of the property was hearsay).
Johnson contends Blackie’s statements concerning construction of the wash
fence were admissible as an exception to the hearsay rule in order to explain the nature
and character of Blackie’s possession of the disputed property and to show the extent of
his interest and the character of his holding. Relying on Powell v. Jackson, 320 S.W.2d
20, 24-25 (Tex. Civ. App.—Amarillo 1958, writ ref’d n.r.e.), and Nagel v. Kiibler, 212
S.W.2d 1009, 1011 (Tex. Civ. App.—Galveston 1948, writ ref’d n.r.e.), Johnson
17
Chance testified that Sonny told him Blackie began running cattle in the area in 1953, implicitly
contradicting Marie’s testimony that the fence existed in 1952.
22
contends the statements are admissible because they demonstrate Blackie’s intent to
claim the property adversely and use it for his own purposes. Powell and Nagel are
inapposite, however, because they deal with statements offered to prove the state of
mind of the declarant, not the fact asserted. Johnson fails to cite us to any hearsay
exception under Rule 803 of the Texas Rules of Evidence applicable to the facts of this
case, and we find none. As such, Wells’s third issue is sustained, and James’s
testimony recounting Blackie’s hearsay statements regarding construction of the wash
fence was inadmissible for purposes of establishing that Blackie built that fence.18
ISSUES ONE AND TWO—LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE
By her first and second issues, Wells asserts Johnson’s evidence is legally and
factually insufficient to establish the elements of adverse possession. Particularly,
Wells contends the evidence is legally and factually insufficient to establish that
Johnson, or his predecessors, (1) adversely possessed or (2) maintained continuous
possession of the disputed property. We agree.
STANDARD OF REVIEW
When both legal and factual sufficiency challenges are raised on appeal, the
reviewing court must first examine the legal sufficiency of the evidence. See Glover v.
Tex. Gen. Indemnity Co., 619 S.W.2d 400, 401 (Tex. 1981). In conducting a legal
sufficiency review, we consider the evidence in the light most favorable to the verdict
and indulge every reasonable inference that supports the verdict. City of Keller v.
18
Determination of whether the erroneous admission of this evidence was harmless is
pretermitted by our resolution of issues one and two. See TEX. R. APP. P. 47.1.
23
Wilson, 168 S.W.3d 802, 821-22 (Tex. 2005). The evidence is legally sufficient if it
would enable reasonable and fair-minded people to reach the verdict under review. Id.
at 827. In conducting our review, we must “credit favorable evidence if reasonable
jurors could, and disregard contrary evidence unless reasonable jurors could not.” Id.
The trier of fact is the sole judge of the credibility of the witnesses and of the
weight to be given to their testimony. Id. at 819. The reviewing court may not substitute
its judgment for that of the jury, so long as the evidence falls within the zone of
reasonable disagreement. Id. at 822. But if the evidence allows only one inference,
neither the jurors nor the reviewing court may disregard it. Id.
In reviewing a legal sufficiency issue, we may sustain the challenge only when
(a) there is a complete absence of evidence of a vital fact, (b) the court is barred by
rules of law or of evidence from giving weight to the only evidence offered to prove a
vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla of
evidence, or (d) the evidence conclusively establishes the opposite of the vital fact in
question. Keller 168 S.W.3d at 810; King Ranch, Inc. v. Chapman, 118 S.W.3d 742,
751 (Tex. 2003), cert. denied, 541 U.S. 1030, 124 S. Ct. 2097, 158 L. Ed. 2d 711 (2004)
(quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). A
scintilla of evidence exists when the evidence “rises to a level that would enable
reasonable and fair-minded people to differ in their conclusions.” Ford Motor Co. v.
Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting Havner, 953 S.W.2d at 711).
Evidence does not exceed a scintilla if it is so weak as to do no more than to create a
mere surmise or suspicion that the fact exists. Id.
24
In reviewing factual sufficiency, the reviewing court must consider, examine, and
weigh the entire record, considering both the evidence in favor of, and contrary to, the
challenged findings. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.
1998), cert. denied, 525 U.S. 1017, 119 S. Ct. 541, 142 L. Ed. 2d 450 (1998). In doing
so, the court no longer considers the evidence in the light most favorable to the finding;
instead, the court considers and weighs all the evidence and sets aside the disputed
finding only if it is so contrary to the great weight and preponderance of the evidence as
to be clearly wrong and manifestly unjust. Id. at 407.
ANALYSIS
In this case, because the trial court previously granted a partial summary
judgment in favor of Wells on Johnson’s claims of adverse possession under the three
year and five year statutes, §§ 16.024 and 16.025 respectively, the trial court submitted
to the jury issues pertaining to the three remaining statutory sections: (1) § 16.026 (ten
year), (2) § 16.027 (twenty-five year), and (3) § 16.028 (twenty-five year).19 The jury
returned a verdict favorable to Johnson under §§ 16.02620 and 16.027,21 but
19
Johnson did not appeal the trial court’s orders granting partial summary judgment pertaining to
his claims under the three year and five year adverse possession limitation statutes. See §§ 16.024-.025
(West 2002).
20
Question No. 1—Do you find that [Johnson], or his predecessors, has held [the disputed
property] in peaceable and adverse possession by cultivating, using, or enjoying such lands for any ten-
year period before May 9, 2007?
Answer: “Yes”
21
Question No. 2.—Do you find that [Johnson], or his predecessors, has held [the disputed
property] in peaceable and adverse possession by cultivating, using, or enjoying such lands for any
twenty-five-year period before May 9, 2007?
Answer: “Yes”
25
unfavorable as to § 16.028.22 Because Johnson does not appeal the jury’s unfavorable
verdict pertaining to § 16.028, we will limit our discussion to §§ 16.026 and 16.027 only.
As to the six essential elements comprising an adverse possession claim, Wells has
focused her insufficiency of the evidence claims on two elements: (1) whether
Johnson’s claim was adverse and hostile to her claim of ownership and (2) whether his
possession was consistent and continuous for the duration of the statutory period.
(1) ADVERSE AND HOSTILE
Here, the disputed property consists of remote ranch land with limited
improvements. It is bounded on the south by the “south fence” constructed by Sonny
and Marie Wells; on the west by a partition fence erected by the Wells to separate
Section 8 from Section 9; on the north by a “wash fence” of unknown origin;23 and on
the east by open ranch land.24 While there was conflicting testimony that Johnson’s
predecessors may have maintained some of the fences, there was no competent
evidence that they significantly changed the character of the enclosure. Because no
one testified to the purpose for construction of the wash fence when built and because
Marie’s testimony establishes the wash fence existed before her father-in-law bought
the disputed property in 1951, for purposes of determining whether Blackie, Cary, Smith
22
Question No. 3—Do you find that [Johnson], or his predecessors, has held [the disputed
property] in good faith and under a deed or other instrument purporting to convey such lands that is
recorded in the deed records of Hardeman County, Texas for any twenty-five-year period before May 9,
2007?
Answer: “No”
23
Other than the inadmissible hearsay statement previously discussed, the undisputed evidence
was that the wash fence existed prior to 1952, predating any acts relied upon by Johnson to establish
adverse possession.
24
While the disputed property itself consists of portions of Sections 9, 10 and 11, it is part of a
larger fenced tract which includes portions of Sections 12, 13 and 14.
26
or Johnson adversely possessed the disputed property, we must consider the wash
fence a casual fence. As such, we conclude the disputed property was not designedly
enclosed. To the contrary, evidence established that the wash fence was so insecure it
would not “turn” livestock and from time to time cattle from nearby ranches would
wander onto the property.
Furthermore, evidence established that any use by Blackie and his successors
was not exclusive because Sonny and Marie also used the disputed property to
separate and corral their cattle without interference. According to the testimony of
Wells, Keck and Wiseman, other than the occasional stray cow from a nearby ranch, no
one ever saw anyone else’s cattle on the disputed property. While there was testimony
concerning the maintenance of the fences, corrals and windmills on the property, there
was insufficient evidence of actual and visible appropriation of the disputed property that
was inconsistent with and hostile to Wells’s claim of ownership for the requisite period of
time.
Johnson also contends Sonny had actual knowledge of Blackie’s claim to the
disputed property and that such knowledge was a substitute for appropriation and
possession that was open, notorious, adverse and hostile to Sonny’s claim of
ownership. Johnson bases this position on three conversations: one between Smith
and Sonny, one between Chance and Sonny, and one between Johnson and Sonny.
In the first conversation, Smith visited Sonny in 1997 and told him he “was
wanting to buy the Blackie Moore property that laid between [Sonny] and the river.” He
asked Sonny if he had any claim to the land Blackie had been grazing, and Sonny
27
responded that he did not want the property. He told Smith “as far as I’m concerned,
that’s Blackie Moore’s.” When Sonny’s statements were made, Blackie was no longer
in possession of the disputed property, and there is no evidence Sonny was aware of
any other claim. The statement does not describe what Sonny considered Blackie’s
property to be, or when he considered it to have been Blackie’s, or whether he believed
Blackie’s use to be adverse. In fact, evidence showed Sonny thought Blackie ran his
cattle “down at the river.” At best, Smith’s statement is evidence that, in 1997, Sonny
received notice that, at one time, Blackie grazed cattle in the salt cedars near the river.
Such evidence creates a “mere surmise or suspicion” that Blackie possessed the
disputed property adverse to Sonny’s interest. See Ford Motor Co., 135 S.W.3d at 601.
Moreover, we need not address Sonny’s statements to Chance and Johnson or
vice versa because, even if we were to find that Sonny had received sufficient notice in
2004 that Smith was in possession of the disputed property or that Johnson in fact
purchased that property from Smith, such notice would be legally insufficient because
those conversations occurred less than ten years prior to the filing of suit. To the extent
either of those statements might indicate earlier knowledge of an adverse claim, we are
left to speculate as to when. Furthermore, Chance’s testimony was that Sonny told him
“I have no interest in [the property Johnson was buying from Smith which was identified
as ‘Blackie Moore’s old place’].” A significant problem with this conversation is that the
property in question was never identified.25 While the conversations between Sonny
25
Chance Johnson testified as follows:
Q. Can you tell us whether or not you told him what you and your dad’s intentions were
about purchasing the [disputed property]?
28
and both Smith and Johnson were somewhat more specific as to the property in
question,26 Johnson’s argument fails to address how Sonny’s awareness, if any, of
Blackie’s claim was a substitute for “cultivation, use or enjoyment of the property,” an
essential element of his adverse possession claim.
Similarly, evidence concerning any use or improvement of the property by
Johnson would be legally insufficient to satisfy the essential elements of adverse
possession because those acts occurred less than ten years prior to the filing of suit for
possession. Under these facts, we find the evidence was legally and factually
insufficient to establish that their claim was exclusive, adverse and hostile.
CONSISTENT AND CONTINUOUS
Undisputed testimony further established there were significant periods when no
one was grazing cattle within the fenced property, much less the disputed property. The
evidence was that Blackie had cattle on the property only four to six months out of each
year and that when Blackie ceased his cattle operations in the early ‘90s, James
conducted the remaining cattle business on the Oklahoma side of the Red River.
___________________________
A. I did. I told him my father had Blackie Moore’s old place under contract to purchase from
David Smith and . . . .
Q. Did you identify the property in any other way?
A. No.
26
Smith identified the property as “the Blackie Moore property that laid between [Sonny] and the
river,” while Johnson identified the property as “the property between [Sonny] and the river that David
Smith owned.” As previously noted, the disputed property does not abut the Red River but instead lies
between the wash fence and the south fence, both of which lie south of the south bank of the river. Smith
goes on to pontificate that Sonny understood that to mean the property north of the south fence because
it was his expressed desire to “stay out of the salt cedars.”
29
According to James’s deposition testimony, there were no cattle on the disputed
property “[p]robably not more than a year or two at the most,” between the cessation of
Blackie’s cattle operations and the sale of the property to Cary. Testimony further
established that from around 1992 to 1994 Cary only grazed cattle during the summer
months and that from 1997 until 2004, Smith did the same. Furthermore, testimony
established that when cattle were grazed on the property, they would randomly migrate
within the larger fenced tract (not on the disputed property), depending on the
availability of grassland. Accordingly, the grazing of cattle was insufficient to establish
consistent and continuous possession. Issues one and two are sustained.
CONCLUSION
After reviewing the record, we conclude the evidence is legally and factually
insufficient to support a finding of actual and visible appropriation of the disputed
property, commenced and continued under a claim of right that is inconsistent with and
hostile to the claim of Wells for the period of time required to establish adverse
possession under §§ 16.026 or 16.027. Accordingly, the trial court’s judgment is
reversed and we render judgment, in part, in favor of Wells on the issue of ownership of
the disputed property. We also remand this action to the trial court for further
proceedings to determine whether Wells is entitled to an award of damages, attorney’s
fees and costs of court.
Patrick A. Pirtle
Justice
30