law-TTTT | real estate litigation | cloud on title | lien | declaratory judgment action


Trespass to real property occurs when a person enters another’s land without consent. Wilen v.
Falkenstein, 191 S.W.3d 791, 797 (Tex.App.--Fort Worth 2006, pet. denied); General Mills
Restaurants, Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 833 (Tex.App.--Dallas 2000, no pet.). To recover
damages for trespass to real property, a plaintiff must prove that (1) the plaintiff owns or has a
lawful right to possess real property, (2) the defendant entered the plaintiff’s land and the entry was
physical, intentional, and voluntary, and (3) the defendant’s trespass caused injury to the plaintiff.
Wilen, 191 S.W.3d at 798.

The plaintiff in a trespass to try title action is required to prove its title by proving (1) a regular chain of
conveyances from the sovereign to the plaintiff, (2) a superior title to that of the defendant out of a
common source, (3) title by limitations, or (4) prior possession, which prior possession has not been
abandoned.  Rogers v. Ricane Enters., Inc., 884 S.W.2d 763, 768 (Tex. 1994).

Trespass to Try Title Suit

TEX. PROP. CODE ANN. § 22.001(a) (Vernon 2000) provides: "A trespass to try title action is the method of
determining title to lands, tenements, or other real property." The prevailing party's remedy is title to, and
possession of, the real property interest at issue. Porretto v. Pattterson, 251 S.W.3d 701, 708 (Tex. App.-
Houston [1st Dist.] 2007, no pet.). Conversely, TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(a) (Vernon
2008) allows: A person interested under a deed, . . . written contract, or other writings constituting a contract . .
. may have determined any question of construction or validity arising under the instrument, . . . and obtain a
declaration of rights, status or other legal relations thereunder.

There are procedural differences between the two causes of action. One of the most important is the availability
of attorney's fees. Trial courts have the authority to award attorney's fees in declaratory judgment actions. TEX.
CIV. PRAC. & REM. CODE ANN. § 37.002(a) (Vernon 2008) (courts may award costs and reasonable and
necessary attorney's fees as are equitable and just). They do not in trespass to try title suits. See EOG
Resources, Inc. v. Killam Oil Co., 239 S.W.3d 293, 304 (Tex. App.-San Antonio 2007, pet. denied) (holding
recovery of attorney's fees is barred in a trespass to try title action because it is not provided for in the Property

Texas case law indicates that, in most cases, the proper cause of action when title is in dispute is a trespass to
try title action.
See, e.g., Martin v Amerman, 133 S.W.3d 262, 264 (Tex. 2004);BP Am. Prod. Co. v. Marshall,
288 S.W.3d 430, 453 (Tex. App.-San Antonio 2008, pet. granted); Veterans Land Bd. v. Lesley, 281 S.W.3d
602, 627 (Tex. App.-Eastland 2009, pet. granted); Natural Gas Pipeline Co. of Am. v. Pool, 30 S.W.3d 618, 636
(Tex. App.-Amarillo 2000), rev'd on other grounds, 124 S.W.3d 188 (Tex. 2003); McRae Exploration & Prod.,
Inc. v. Reserve Petroleum Co., 962 S.W.2d 676, 684 (Tex. App.-Waco 1998, pet. denied); Ely v. Briley, 959 S.
W.2d 723, 727 (Tex. App.-Austin 1998, no pet.); Bell v. State Dep't of Highways & Pub. Transp., 945 S.W.2d
292, 294 (Tex. App.-Houston [1st Dist.] 1997, writ denied), abrogated by Harris County v. Sykes, 136 S.W.3d
635 (Tex. 2004); Barfield v. Holland, 844 S.W.2d 759, 771 (Tex. App.-Tyler 1992, writ denied).
No attorney's fees. Sw. Guar. Trust Co. v. Hardy Road 13.4 Joint Venture, 981 S.W.2d 951, 957 (Tex. App.-
Houston [1st Dist.] 1998, pet. denied) ("Attorney's fees are not available in a suit to quiet title or to remove
cloud on title.").

In a trespass-to-try-title action, a plaintiff recovers on the strength of his or her own title. Plumb v. Stuessy, 617
S.W.2d 667 (Tex. 1981); Land v. Turner, 377 S.W.2d 181 (Tex. 1964); Woodrow v. Henderson, 783 S.W.2d
281, 282 (Tex. App.--Texarkana 1989, no writ). Recovery can be based on proof of (a) title through regular
chain of conveyances from the sovereign, (b) superior title out of a common source, (c) title by limitations, or
(d) unabandoned prior possession of the land. Plumb, 617 S.W.2d at 668; Session v. Woods, 206 S.W.3d 772,
774 n.2 (Tex. App.--Texarkana 2006, pet. denied). Generally, the earlier title emanating from a common source
is better title and superior to others. Diversified, Inc. v. Hall, 23 S.W.3d 403, 406 (Tex. App.--Houston [1st Dist.]
2000, pet. denied).

06‑07‑00116‑CV, 269 SW3d 222, 10‑23‑08, pet denied June 2009) Restitution--Unjust Enrichment
TTTT, unfair debt collection claim)
The summary judgment evidence is as follows. The Casstevenses obtained title in 1998 from the Carrolls--a
warranty deed of conveyance--showing a $34,000 cash payment and execution of a promissory note for
$90,000 to the Carrolls. The deed was duly recorded. In 2004, the Casstevenses borrowed $64,000 from their
bank to pay off the note to the Carrolls, so they could pay off their own first lien note. The 1998 warranty deed,
according to its own terms, became "absolute" upon payment of that note. The Carrolls executed a release,
which was recorded. The Casstevenses had actual, uninterrupted, and exclusive possession of the house for
nine years.

Casstevens argues that, before any of the actions involving the Smiths occurred, she was already equitably
subrogated to the first lien position, which is a title superior to that claimed by the Smiths due to their later
"secret" purchase of the first lien from the bank.

As a matter of law, based on the summary judgment evidence, the Smiths obtained superior title when they
purchased the lien at a foreclosure sale. That property remained subject to the lien held by the bank. The
Smiths argue the Carrolls' chain of title was cut off by the trustees deed foreclosing the vendor's lien to the
Campbells, thus legally the Smiths' chain is superior. Barring some other issue intervening in the analysis, this
is correct.

In response to Casstevens'
equitable subrogation claim, we have previously addressed and disposed of that
issue in favor of the Smiths' position. Accordingly, we conclude that there is no evidence to support
Casstevens' position that her trespass-to-try-title claim should prevail. The trial court correctly rendered
summary judgment on this issue.

COMPANY, LTD.; from Brazoria County; 14th district (14-05-01181-CV, 238 SW3d 538, 10-23-07, pet. denied
Feb. 2008)(UDJA, easement, trespass to try title)

Also see:
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