Under Texas law, 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." TEX. CIV. PRAC. & REM. CODE § 16.021(1). The statute requires visible
appropriation; mistaken beliefs about ownership do not transfer title until someone acts on them. Tran v.
Macha, 213 S.W.3d 913, 914 (Tex. 2006); Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex. 1985); see
also Natural Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188, 198 (Tex. 2003) (holding that "a record
titleholder's ignorance of what it owns does not affect the running of limitations"). BP AMERICA
PRODUCTION COMPANY v. Marshall, Tex: Supreme Court 2011 No. 09-0399. (May 13, 2011)
One means of proving title to real property is by proving title by limitations based upon ten years of
adverse possession. See Sani v. Powell, 153 S.W.3d 736, 748 (Tex. App.-Dallas 2005, pet. denied);
Jordan v. Bustamante, 158 S.W.3d 29, 43 (Tex. App.-Houston [14th Dist.] 2005, pet. denied). Adverse
possession is the "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(a) (West 2002). To prove adverse possession, a claimant must establish six
elements: (1) actual 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 or 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 also Rhodes v. Cahill, 802 S.W.2d 643, 645
(Tex.1990). Dallas Court of Appeals of Texas, No. 05-10-00116-CV 4/7/11
Section 16.034(a) of the Texas Civil Practice and Remedies Code provides: “In a suit for the possession
of real property between a person claiming under record title to the property and one claiming by
adverse possession, if the prevailing party recovers possession of the property from a person unlawfully
in actual possession, the court … may award costs and reasonable attorney’s fees to the prevailing
party.” TEX. CIV. PRAC. & REM. CODE ANN. § 16.034(a)(2) (West Supp. 2010). Because the statute
affords the trial court a measure of discretion in deciding whether to award attorney’s fees, we review
the trial court’s award of attorney’s fees under section 16.034 for an abuse of discretion. Maldonado v.
Empire Land Co., Ltd., No. 04-09-00104-CV, 2010 WL 3250025, at *2 (Tex. App.—San Antonio Aug.
18, 2010, no pet.) (mem. op.). A trial court abuses its discretion when its decision is arbitrary,
unreasonable and without reference to any guiding rules and principles. Id.
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 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
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 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.
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.