COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-18-00125-CV
JAMES DANIEL ROBERTS AND APPELLANTS SHERYL A. GROSS
V.
LINDA RATLIFF, ROBERT APPELLEES RATLIFF, AND LEONARD RATLIFF
----------
FROM THE 271ST DISTRICT COURT OF WISE COUNTY TRIAL COURT NO. CV15-08-554
MEMORANDUM OPINION1
James Daniel Roberts and Sheryl A. Gross (the Couch Heirs) appeal from
the trial court’s final judgment (1) granting summary judgment for Linda and
Robert Ratliff (the Adverse Claimants) on their trespass to try title suit against
1 See Tex. R. App. P. 47.4. the Couch Heirs and on the Couch Heirs’ counterclaims against them and also
(2) granting summary judgment for Leonard Ratliff on the Couch Heirs’ third-party
claims against him. Because we hold that the Adverse Claimants provided some
evidence of adverse possession but not conclusive proof, and because the
summary judgment motion on the Couch Heirs’ counterclaims and third-party
claims turned on whether the Adverse Claimants prevailed on their adverse
possession claim, we reverse the trial court’s judgment.
I. Background
Leonard and his wife Margie, along with W. Z. Willbanks and his wife
Irene, bought 422.17 acres of land in Wise County (the Ratliff Tract) from Marvin
and James Petty in 1962. The Ratliff Tract was located to the east of what is now
known as County Road (CR) 4598.2 At that time, Elizabeth Lucille Couch (Lucille)
owned land to the west of CR 4598 (Couch Tract). She also had record title to an
approximately 6.54 acre strip of land running from north to south along the
eastern edge of CR 4598 that immediately abutted the Ratliff Tract (the Disputed
Property). The Pettys’ deed to the Ratliff Tract did not include the Disputed
Property in its legal description.
Lucille died in May 1998. In 2001, Derline Roberts, individually and as
executor of Lucille’s will, conveyed an undivided 5/12th present interest, and a
1/12th remainderman interest, in the Couch Tract and the Disputed Property to
2 CR 4598 was previously known as CR 4690 and is also called Garvin Road. The terms are used interchangeably in the record.
2 each of the Couch Heirs and retained a 1/6th life interest. At that time, the entire
Couch Tract––described as 320 acres in the 1932 deed to Lucille––was
described as the surface estate to 312 acres of land3 and the mineral interest in
320 acres of land. When Derline passed away,4 each of the Couch Heirs thus
became owner of an undivided 1/2 interest in the Couch Tract and, if not already
adversely possessed by the Adverse Claimants at that time, the Disputed
Property. See, e.g., Nussbaum v. Nussbaum, 292 S.W. 189, 191 (Tex. Comm’n
App. 1927).
During the 2000s, the Couch Heirs leased all of their 312 acres of surface
estate to various third parties for hunting and grazing. Their unrecorded leases
defined the leased premises as the 312 acres of land described in the deed to
them from Derline.
Around 2008, FPL Energy Producers decided to build a pipeline in the
area and sought permission for an easement to locate parts of the pipeline on the
Couch Tract, Ratliff Tract, and Disputed Property. Leonard granted FPL an
easement on the Disputed Property and also signed an affidavit of adverse
possession claiming ownership of the Disputed Property, which FPL filed in the
Wise County property records. That affidavit reads as follows:
3 Gross explained in her summary judgment affidavit that eight acres of the surface estate were conveyed for the construction of Highway 114, which runs through the Couch Tract. That conveyance is not included in the record, and nothing in the record shows when this conveyance occurred. 4 The record does not indicate when this occurred.
3 I hereby swear and affirm that I have openly, notoriously, continuously and adversely possessed the following described property without interruption since 1962 to the present date and to the exclusion of all others:
A tract of land in the Van Zandt Survey, Abstract 1182, Wise County, Texas located on the east side of County Road 4598 (formerly County Road 4690) and immediately adjacent to 104 acres owned by myself and the Margie M. Ratliff Estate recorded in Volume 662, Page 891 of the Official Public Records of Wise County, Texas.
My claim of title to this property is based upon continuous possession and use since 1962.
I have paid the ad valorem taxes on this property continuously since 1962.
This Affidavit is given to FPL Energy Producer Services, LLC to prove ownership for the purposes of laying, constructing, maintaining, operating, repairing, replacing, protecting, relocating, altering, removing or abandoning in place one or more pipeline(s). I hereby agree to indemnify and hold harmless FPL Energy Producer Services, LLC should any matter stated herein be proved false or misleading.
In 2012, Leonard conveyed the Ratliff Tract, which had been in a family trust, to
the Adverse Claimants.
In 2015, the Couch Heirs obtained a survey of the Couch Tract and
Disputed Property and, as a result, asserted ownership over the Disputed
Property based on their record title. The Adverse Claimants sued Sheryl,5
seeking title to the Disputed Property through adverse possession under either
the ten or twenty-five year limitations periods in the Civil Practice and Remedies
5 The record is unclear as to why they sued only Sheryl.
4 Code. Tex. Civ. Prac. & Rem. Code Ann. §§ 16.026, .027, .028 (West 2002).
Roberts intervened in the suit. The Adverse Claimants then amended their
petition to include both of the Couch Heirs as defendants. Both Couch Heirs
eventually filed a joint amended pleading disputing the Adverse Claimants’
trespass to try title claims and bringing counterclaims for trespass to try title,
slander of title, collusion to defraud and deceive, and the filing of a fraudulent
claim against real property. The Couch Heirs also sought a declaratory judgment
that Leonard’s 2009 adverse possession affidavit is defective and no evidence of
adverse possession. The Couch Heirs named Leonard as a third-party
defendant, bringing claims against him for collusion to defraud and deceive and
for filing a fraudulent claim against real property.
The Adverse Claimants and Leonard filed a joint traditional motion for
summary judgment. The Adverse Claimants sought summary judgment as a
matter of law on their claims against the Couch Heirs and the Couch Heirs’
claims third-party claims against them, and Leonard sought summary judgment
on the Couch Heirs’ claims against him. All three contended that the Couch
Heirs’ claims were barred by limitations. After considering the Adverse Claimants’
and Leonard’s summary-judgment evidence and the Couch Heirs’ responsive
evidence, the trial court granted all of the relief requested in the joint motion and
rendered a final judgment on all claims.
The Couch Heirs bring two issues in this appeal: their first issue challenges
the summary judgment on the Adverse Claimants’ claims, and their second issue
5 challenges the summary judgment on their counterclaims against the Adverse
Claimants and third-party claims against Leonard.
II. Standard of Review
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the
light most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if reasonable jurors could and disregarding evidence contrary to the
nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,
Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).
A plaintiff is entitled to summary judgment on a cause of action if it
conclusively proves all essential elements of the claim. See Tex. R. Civ. P.
166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). Likewise, a
defendant is entitled to summary judgment on an affirmative defense if the
defendant conclusively proves all the elements of the affirmative defense. Frost
Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010), cert. denied, 562
U.S. 1180 (2011); see Tex. R. Civ. P. 166a(b), (c). To accomplish this, the
defendant-movant must present summary judgment evidence that conclusively
establishes each element of the affirmative defense. See Chau v. Riddle, 254
S.W.3d 453, 455 (Tex. 2008).
6 III. Adverse Claimants’ Trespass to Try Title Claims
In their first issue, the Couch Heirs contend the trial court erred by granting
summary judgment on the Adverse Claimants’ trespass to try title claim, in which
they claim title by adverse possession.
A. Applicable Law
A plaintiff may prevail in a trespass to try title action by establishing title by
limitations, i.e., adverse possession. Tex. Prop. Code Ann. § 22.001 (West
2014); Martin v. Amerman, 133 S.W.3d 262, 265 (Tex. 2004); Ellis v. Buentello,
No. 01-12-00098-CV, 2012 WL 3528009, at *4 (Tex. App.––Houston [1st Dist.]
Aug. 16, 2012, no pet.) (mem. op.). A claim for adverse possession requires six
essential elements: (1) actual and visible appropriation and possession of the
disputed property (2) that is open and notorious, (3) that is peaceable, (4) that is
commenced under a claim of right, (5) that is adverse and hostile to the claim of
the owner, and (6) that is consistent and continuous for the duration of the
statutory period. Tex. Civ. Prac. & Rem. Code Ann. § 16.021(1) (West 2002), §§
16.026–.027; Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990) (op. on reh’g);
Wells v. Johnson, 443 S.W.3d 479, 489 (Tex. App.––Amarillo 2014, pet. denied).
A claimant asserting adverse possession under the ten-year limitations
statute6 must show, by a preponderance of the evidence, cultivation, use, or
6 Although the Adverse Claimants pleaded application of both the ten and twenty-five year statutes, they argue primarily that adverse possession title vested in Leonard after ten years. Regardless, the twenty-five year statute 7 enjoyment of the property “in peaceable and adverse possession” for the entire
ten-year period. See Tex. Civ. Prac. & Rem. Code Ann. § 16.026; Mead v.
RLMC, Inc., 225 S.W.3d 710, 715 (Tex. App.––Fort Worth 2007, pet. denied).
Although title to land by adverse possession may be shown as a matter of law
when the facts are conclusive, see King Ranch, Inc. v. Chapman, 118 S.W.3d
742, 757–58 (Tex. 2003), cert. denied, 541 U.S. 1030 (2004), adverse
possession is normally a fact question, Bywaters v. Gannon, 686 S.W.2d 593,
595 (Tex. 1985). Because adverse possession is a harsh doctrine, the law
requires that a party’s intention to appropriate property via adverse possession
be “very clear.” Tran v. Macha, 213 S.W.3d 913, 915 (Tex. 2006).
“[T]he mere grazing of land incidentally enclosed as a result of the
construction of fences built for another purpose does not constitute possession
that will ripen into title by limitation. 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, 141–42 (Tex. 1971). A fence is not considered
designedly enclosed if it existed before the adverse claimant took possession of
the land and the claimant fails to demonstrate the purpose for which it was
erected; in that case, the fence is considered a “casual fence.” Rhodes, 802
S.W.2d at 646; Orsborn v. Deep Rock Oil Corp., 267 S.W.2d 781, 786 (Tex.
requires the same proof during the applicable time period as the ten-year statute. See Tex. Civ. Prac. & Rem. Code Ann. §§ 16.026, 16.027.
8 1954). Evidence that a person has merely repaired or maintained a casual fence,
even for the express purpose of keeping the person’s animals within the
enclosed area, generally does not change a casual fence into a designed
enclosure. Rhodes, 802 S.W.2d at 646; Mead, 225 S.W.3d at 715. This is so
because Texas has always treated unenclosed lands as commons for grazing
livestock; therefore, the use of unenclosed lands for grazing livestock is allowed
by law. Mohnke v. Greenwood, 915 S.W.2d 585, 593 (Tex. App.––Houston [14th
Dist.] 1996, no writ). Courts have also found that cutting weeds, deer hunting,
fishing, gardening, camping, clearing trees, and using the land for occasional
storage do not necessarily establish a designed enclosure. Id. at 594; see NJ
Williams Family P’ship, Ltd. v. Winn, No. 03-07-00724-CV, 2010 WL 142879, at
*5–6 (Tex. App.––Austin Jan. 15, 2010, no pet.) (mem. op.); Vaughan v.
Anderson, 495 S.W.2d 327, 331–32 (Tex. Civ. App.––Texarkana 1973, writ ref’d
n.r.e.). But cf. Reid Estates Civic Club v. Boyer, Inc., No. 01-09-00282-CV, 2011
WL 6938513, at *11 n.10 (Tex. App.––Houston [1st Dist.] Dec. 29, 2011, no pet.)
(mem. op.) (“[R]ecreational activities can be sufficient to establish hostile use
with respect to land that both parties concede is only suitable for recreational
pursuits.”).
But because adverse possession is a fact-specific doctrine, exceptions
apply. An adverse claimant may prove that he so changed the character of a
casual fence that it has become a designed enclosure; thus, evidence of such a
substantial modification can be sufficient to support a finding of adverse
9 possession. Rhodes, 802 S.W.2d at 646; Mead, 225 S.W.3d at 715. Additionally,
proof of a designed enclosure is not necessary when the claimant proves
sufficient nongrazing use of the disputed land “such that the true owner would
have notice of the hostile claim.” Mead, 225 S.W.3d at 715–16 (quoting Perkins
v. McGehee, 133 S.W.3d 287, 292 (Tex. App.––Fort Worth 2004, no pet)).
B. Summary Judgment Evidence
The Adverse Claimants relied primarily on affidavit testimony to establish
their claims. The Couch Heirs’ responsive evidence raises a genuine issue of
material fact as to the nature of Leonard’s use and possession of the Disputed
Property beginning in the late 1980s and early 1990s, but because the Adverse
Claimants rely primarily on the ten-year statute, we will focus our review on the
evidence pertaining to that time period.
1. Adverse Claimants’ Evidence
In his affidavit, Leonard averred that he is “thoroughly familiar” with the
Disputed Property, which he contends was included with the 422.17 acres of land
that he, Margie, and the Willbankses purchased in June 1962 from the Pettys
and which he eventually sold to the Adverse Claimants.7 According to Leonard,
when he bought the Disputed Property and the Ratliff Tract together, a fence
formed the western boundary of the Disputed Property, which is not separated
7 The deed from the Pettys is included in the summary-judgment record. The Ratliffs do not dispute that the legal description of the Disputed Property is not included in the legal description in that deed.
10 from the Ratliff Tract by any fence. That fence runs along the eastern boundary
of CR 4598, also known as Garvin Road and formerly known as CR 4690. There
was a gate in the fence serving as the only entrance to both the Disputed
Property and the Ratliff Tract. Leonard averred, “[T]he [Disputed Property] . . .
has been under my fence since 1962.” Leonard said that his family and the
Willbanks family had maintained the fence from 1962 to January 5, 2017, the
date of his affidavit. He also averred that “we”8 claimed all of the land under the
fence as had the Pettys.
According to Leonard, the Couch Tract is “immediately across CR 4598”
from the Disputed Property and the Ratliff Tract; thus, “[a]ny activity on the
[Disputed Property] could easily be seen from the road and [the Couch Heirs’]
land.” In 1971, the United States Department of Agricultural Soil Conservation
Service (A.S.C.S.) built a livestock watering pond on the Disputed Property,
which Leonard co-operated. Leonard averred that because the pond was very
close to CR 4598, “[a]nyone in the area could see that [he], along with the
A.S.C.S. were making valuable improvements to the land.” Bulldozers, other
equipment, and construction crews were present “for a number of weeks while
the pond was being constructed,” and no one objected or claimed the land was
theirs. Leonard and his family have used the pond “exclusively . . . for watering
livestock and recreation since 1972.”
8 This pronoun presumably refers to Leonard, Margie, and both of the Willbankses.
11 Leonard further averred that after the pond was built, he placed no
trespassing signs on the fence because people were crossing the fence and
fishing in the pond. Because travelers on CR 4598 would shoot at Leonard’s
signs, in 1972 or 1973, Robert put up a larger no trespassing sign that stated:
“Private Property, NO Hunting and Fishing, TRESPASSERS WILL BE
PROSECUTED.” Attached to Leonard’s affidavit is a photograph of that sign,
which Leonard averred was, “[a]lthough somewhat rusted, . . . still on the fence
running along the east side [of] CR 4598 and the west boundary of the” Disputed
Property.9 Leonard also attached a photograph of the pond.
The attached photographs of the fence along the west side of the Disputed
Property show that it is a barbed wire fence with an elongated, metal swinging
gate. The record does not indicate when any of the photographs were taken.
Leonard averred that since 1962, he and his family had “run cattle,
sheep[,] and goats” on the Disputed Property. Since that time they had been “in
peaceable possession” of the Disputed Property, which “has been open and
obvious to everyone and adverse to any other claim of ownership.” Neither he,
his wife, nor the Adverse Claimants “knew any owners of the land” until the
Couch Heirs claimed ownership in 2015.
The Adverse Claimants also provided an affidavit from Harry Lamance, a
Wise County Commissioner for Precinct 3 since 2011. Lamance averred that he
9 The sign appears aged and extremely weathered.
12 is “very familiar” with CR 4598, that his family had resided in that area for over
sixty years, and that he had traveled that road “many times over the last sixty-five
years.” In addition, CR 4598 is in Lamance’s precinct, and he is responsible for
maintaining it. Lamance averred that
• the road has been in the same location for at least the last sixty-five
years,
• the only changes to the road that he is aware of have been a
resurfacing from gravel to a hard surface and replacement of an old
bridge with a culvert,
• there has always been a good fence capable of turning cattle along the
east side of the road,
• there is a gate in the east fence line which furnishes an entrance to the
property, and
• “[t]he property enclosed by the fence was, and is occupied by the Ratliff
family, Leonard Ratliff and Margie Ratliff, and currently Robert Ratliff
and Linda Ratliff, for well over twenty-five years.”10
Robert also provided an affidavit. In it, he averred that the fence along the
western boundary of the Disputed Property was in that location when Leonard,
10 Because Lamance executed his affidavit in 2017, this evidence that the reputation in the community was that the Ratliffs owned the Disputed Property extends only to 1992. Thus, we will not consider this part of Lamance’s affidavit in our analysis of whether the Ratliffs conclusively proved adverse possession under the ten-year or twenty-five year statutes.
13 Margie, and the Willbankses bought the Ratliff Tract in 1962. According to
Robert,
The entrance to the land was through a gate in the fence along the east right of way of CR 4598. That gate was the exclusive entry to the land from 1962 and before until 1982, when my wife and I purchased some land adjoining. The Mitchell Corporation built an oilfield road on the land me and my wife purchased. We used both the oilfield road and the gated entrance off CR 4598 to access the [Disputed Property]. We continued to access through the gate for a number of years after 1982. The gate is still in place and useable.
. . . In 1969 my father and I worked on the fence along the east right of way of CR 4598. We replaced a number of cedar post[s] with steel T-posts and put in steel pipe H-braces. The H-braces and many of the T-posts are still in place. The location of the fence was open, obvious and adverse to anyone claiming the [Disputed Property].
Robert also averred that the pond on the Disputed Property was stocked
with fish and that he, Linda, and their family had fished and enjoyed the pond. He
put no trespassing signs along the fence because “poachers” had been fishing
the pond, and in 1972, he built and placed a large no trespassing sign “on the
fence close to the pond.” According to Robert, that sign was still in place when he
signed his affidavit in January 2017.
Robert averred that he and his family had run cattle, sheep, and goats on
the Disputed Property since he was in high school,11 that they had “mowed and
11 Nothing in the record indicates how old Robert was when he executed his affidavit; therefore, we cannot say, as do the Adverse Claimants, that his statements that certain events had occurred since he was in high school refer to 1962.
14 maintained” the Disputed Property, and that he had hunted and trapped on the
Disputed Property. According to Robert,
My family and I have continually held the [Disputed Property] in peaceable and adverse possession since 1962. We have occupied, used and enjoyed the [Disputed Property] since 1962. In 2015, some 53 years later, Defendant [Sharyl] Gross claimed an interest in the [Disputed Property]. Neither my wife, nor I ever knew any persons claiming the land until Defendant, [Sheryl] A. Gross claimed ownership in June, 2015. At no[] time from 1962 to the present did any of us ask for or receive permission to use the land. This was [the] first and only notice that someone other than my family claimed an interest in the land.
2. Couch Heirs’ Evidence
The Couch Heirs attached responsive evidence tracing their inheritance of
their undivided 1/2 interests in the Couch Tract––and record title to the Disputed
Property––from Lucille to Derline to them. The Adverse Claimants do not dispute
for summary judgment purposes that the Disputed Property is included in the
legal description of the deed to Lucille and the deed to the Couch Heirs from
Derline. The Couch Heirs also attached evidence showing that they paid the
2016 property taxes on the Disputed Property, had leased all of their 312 surface
acres for grazing purposes beginning as early as 2012, and had also leased
those acres for hunting since 2009.
In her summary judgment affidavit, Gross averred,
. . . My entire life,[12] although I am not able to live there, the land has been continuously leased by us and our ancestors to
Nothing in the record indicates Gross’s age except that in her ex- 12
husband’s affidavit, he avers that they were married from October 12, 1981 to February 22, 2008 and had a son during their marriage. Thus, we can infer that 15 individuals who utilized the entire property, including the [Disputed Property], for grazing and hunting who were to be responsible for maintaining fences, but it was never a concern as to the Ratliff[]s since we shared a stock pond.
. . . Further, we have been paying taxes on approximately 312 acres (320 minus the land taken for Hwy 114) for approximat[e]l[]y 84 years, including 2016 just paid.
. . . During my great aunt Lucile’s[13] lifetime, I believe Leonard Ratliff had already begun living on the adjoining property. The 2 families ran the properties as good neighbors and partners since each ran cattle. There was natural drainage going through a culvert under CR 4960 (Now CR 4598) onto our property on the east side of the [r]oad for several hundred feet flowing into a stock pond that straddled the property line with the Ratliff[]s – the pond is partially on both tracts.
. . . Everyone who lives in the area knew that the old dirt road, which [i]s shown in the Maps of Wise Co. published in 2012, was known as CR 4960 [and] was no longer a straight line because it had washed out due to a gully in the land on the NE side of the road. . . . Although I don’t know what date it occurred, the original road ran more closely to the property line, but was rerouted causing the resultant portion of our property to be on the east side of the road. A partial fence line remains where the property line should be, as noted by Mr. Ballard upon his survey of the land, however, most . . . of the fence was removed, allowing Mr. Ratliff to encroach onto our property. This land was heavily wooded and cows did not typically enter the West or North side of the pond. . . .
. . . Because the land on the North side of our property is heavily wooded, the fence line along CR 4960 was very difficult to get to for maintenance. The heavy brush along with an old fenceline kept any live stock on the West side of CR 4960 from escaping onto the road. While Mr. Jake Holloway was leasing the land in the early
she was at least close to eighteen years old in 1981. See Tex. Fam. Code Ann. § 2.003 (West Supp. 2017).
Although the Couch Heirs use the spelling “Lucile” in their affidavits, we 13
use “Lucille” because that is the spelling used in the conveyance documents.
16 1990’s, my ex-husband, Rick Lucier, and a good friend, Kevin Adams, went down to clear the fence line along CR 4960 where some of the fence needed repair or replacing. Since cows were not able to get out through the heavy brush, the fence repair was not a high priority on either side of CR[]4960. The improvements to the portion of land east of CR 4960 (including the [Disputed Property]) was not begun until the pipeline representatives came in to broker a deal for placement of a gas pipeline through our property and [the] Ratliff’s in the summer and fall of 2008.
....
. . . Our family built and maintained the fencing to make sure cows didn’t get out on the road and protected our property rights. It was NOT built to accommodate the Ratliff[]s by fencing their cows in.
. . . We were not absent owners with my son Nick living on the property for a time and me and my brother, with our relatives and friends, coming to use the property . . . for recreation, as well as constantly graze leased and leased for hunting. We have continuously used and occupied the property.
Roberts also provided an affidavit, in which he averred,
. . . . I grew up going to this Property [the 312 acres] and remember from even as a child[14] . . . that at one time the road went around the outer edge of our entire acreage[,] then the road in the northeast corner was at some point altered cutting off a portion of the our [sic] property. Still we kept not only the west side of now CR 4598 running north of Hwy 114 but also the east side of the road so the cows would not get on the road. I always knew we had a portion of property on that side of the road as well.
. . . As I recall there was fencing on the eastern boundary of [15] your property but due to the heavy trees one could not get to it including any cows or other farm animals, and the pond was always
Once again, the record does not indicate Roberts’s age. 14
In context, it appears that this word was intended to be “our.” 15
17 known to straddle our property and [the] Ratliff’s, possibly built with possibly then my father or my great aunt Lucile discussing it.
. . . As I also recall, originally the road was gravel[,] then at some point more recently it was paved since it kept washing out. Some concrete was also put in some of the ditches to shore up the road.
. . . During the 1970s, as Ratliff points out, there was a pond dug which benefitted both adjoining property owners – the cows would share the pond. There was no need to restrict their movements since there were heavy woods on either side of the pond which actually still have fencing partially there in parts and the woods acted as a fence for the rest. I don’t ever recall even seeing or meeting the Ratliff[]s until seeing them in Court when this lawsuit was begun.
. . . During the 1980’s, Mr. Holloway began leasing the ‘farm’ (the property) for cattle grazing. He utilized ALL of the property including the portion now being claimed by the Ratliff[]s. And as a fence builder part of his lease was to maintain the fencing around the perimeter. In fact, Mr. Holloway was a friend of the Ratliff’s and they both ran cattle together sharing the pond.
. . . Also at that time period, there was a culvert under the road which at some point got paved that could be used for running cows back and forth without crossing the road, which is possibly another reason we kept both sides fenced.
. . . Our family built the fencing on BOTH SIDES of now CR 4598 and maintained it. The eastern boundary was all grown up with trees creating a fence between the tracts which worked until more recently when the pipeline company cleared some of the acreage making way for their pipeline to go through.
. . . During this whole [unspecified] time there was NOT posted any NO Trespassing signage on the fences that I recall until sometime more recent after the pipeline went in.
. . . Going into the 1980’s, my then brother in law, Rick Lucier, would go to the property as would I to enjoy camping out and using the property for recreation – hunting and fishing, etc. This included
18 staying at times on the [D]isputed [Property], during which no one approached us or asked us to leave.
. . . At all times that I can recall, our property on the east side of CR 4598 has been fenced along the roadway by us AND was maintained by us (and those that did grazing of cattle on it[)]. . . .
. . . There was NO No Trespassing signs on the fencing that I saw until the one put on the new fencing now in place. I do not believe the Ratliff[]s have open[ly], notoriously or adversely occupied our property.
The Couch Heirs also provided an affidavit from Lucier, Sheryl’s ex-
husband, in which he averred
• that he was familiar with the Disputed Property,
• that he had gone with his son to the Couch Tract or met him there “many
times,”
• that “[d]uring all times that [he] visited the property, including the
[Disputed Property, he] witnessed no occupation by any people on the acreage
nor cattle or other farm animals to graze on the acreage,”
• that during the 1980s, CR 4960 was a gravel road that had washed out
and was rerouted and paved at some point, which required “the need for
addressing the fencing on both sides of the road,”
19 • that around 1990-91, he, Holloway, and Kevin Adams took down,
replaced, and repaired the fencing on both sides of Garvin Road and that the
repairs were done for the Couch Heirs because it was “THEIR fence,”16
• the Couch Heirs’ true east property line “had a thicket of trees and
separated the properties of [the Couch Heirs] and Ratliff completely so any cows
could not get through,”
• during “most of the 1980’s and on into the 90’s,” he went with church
groups on numerous campouts on the Disputed Property, “staying overnight or
full weekends without interruption,’
• “[f]or all of this [unspecified] period, [he] installed “no trespassing[”] signs
on the fencing along the east side of Garvin Road, not the Ratliff[]s,” and
• since the 1980s, he had visited the Couch Tract on occasion and had
personally seen no evidence that Leonard or the Adverse Claimants were
“exercising dominion and control over the [Disputed Property] in any fashion[,]
and the east line was unaccessible [sic] for people or cattle to penetrate the
acreage now claimed.”
Finally, the Couch Heirs provided an affidavit from Harold Ballard, who
performed a survey on their behalf in January and February 2015. Ballard
averred that after research, he determined that the Adverse Claimants did not
appear to be paying taxes on the property, nor did they have record title to it.
16 The evidence shows that the Couch Heirs did not own the Couch Tract at this time.
20 Additionally, he “noted that the east fence line had been cleared out[,] but [he]
found traces of it still existing,”17 and he noted “several locations where the
original fencing was found embedded in trees to verify where the true eastern
property line was of the [Couch Heirs’] property.”
2. Analysis
The Adverse Claimants rely primarily on the supreme court’s opinion in
Butler v. Hanson, 455 S.W.2d 942, 943–46 (Tex. 1970), and this court’s opinion
in Perkins, 133 S.W.3d at 291–93, for their contention that they conclusively
proved the elements of adverse possession. But the facts in this case are
distinguishable from the facts in those cases. Here, the Adverse Claimants did no
more than show that a fact issue exists on all of the elements of adverse
possession.
Butler involved title to ranch land in Glasscock County. 455 S.W.2d at 943.
The evidence showed that beginning in at least 1932, the Hansons––who owned
record title to land in Section 46––had continuously grazed livestock to a fence
line, located in Section 3 immediately to the south of Section 46. Id. at 943–44.
The original three-strand barbed wire fence had been in the same location since
at least 1914, and in 1934, the Hansons placed a net fence around their entire
ranch, including the fence located on Section 3 because it was “a better fence to
17 In context, this sentence appears to refer to the traces of an old fence line that may have at one point separated the Disputed Property from the Ratliff Tract, not to the barbed wire fence along the eastern edge of CR 4598.
21 hold sheep.” Id. at 944. Between 1949 and 1952, Hanson “rebuilt” the fences, put
new fence posts in between the old posts, and continuously maintained them. Id.
Hanson regarded the fence as his southernmost property line, as did Hanson’s
tenant from 1932 to 1952 and the Section 3 tenant from 1951 to 1963. Id. at 944–
945. The general reputation in the community was that Hanson owned all of the
land up to the fence, which was known as the Hanson Place. Id. at 945.
The supreme court held that this evidence was sufficient to support a jury
verdict for Hanson and that the fence located on Section 3 was not a casual
fence. Id. The court distinguished the facts from Orsborn because the Hanson
tracts were contiguous and operated as a unit, the livestock were continuously
grazed on the land in dispute, Hanson changed the character of the fence and
essentially “made it his own,” and tenants on both sides of the fence testified that
the reputation in the community was that the fence belonged to Hanson and all of
the land north of the fence belonged to him. Id. at 945–46.
In Perkins, this court held that the evidence supported the trial court’s
judgment that the McGehees’ predecessor had obtained title to property under
the ten-year limitations period. 133 S.W.3d at 291–94. The evidence showed that
when the McGehees’ predecessor bought the land in 1982, a fence was already
located on adjacent land the Perkinses eventually bought. Id. at 292. But from
1982 to 1995, the ranch manager for the McGehees’ predecessor had “worked
on the fence several times a year,” “repaired the water gaps in three gullies along
the fence line[] as frequently as two or three times a year,” and made these
22 repairs for the purpose of running cattle in the pastures that fronted the fence
line. Id. He further “cleared an area of trees to the north of the fence line and
planted and fertilized coastal Bermuda grass there for grazing.” Id. Finally, he
represented to the McGehees that the fence line was the southern boundary of
the ranch they bought. Id.
This court concluded that the facts of Perkins were more akin to Butler
than to Orsborn and, thus, that the existing fence was not a casual fence. Id. at
292–93. There was evidence of constant grazing of the entire land owned by the
McGehees, which was fenced as a contiguous unit with the disputed property,
the McGehees’ predecessor modified the fence sufficiently to be considered his
own, and the general reputation in the community was that the land was owned
to the fence line. Id.
Here, there is no evidence as to the reputation in the community regarding
the Disputed Property from 196218 to 1972 (Ten-year Period) or from 1962 to
1987 (Twenty-five-year Period); Lamance testified only as to the community
reputation for twenty-five years before 2017, that is, from 1992 to 2017. And
although there is evidence (1) that Leonard considered the fence on the east side
of CR 4598 his fence, (2) that he and Robert replaced posts in the fence in 1969
and thereafter maintained it, and (3) that the Disputed Property and the Ratliff
18 Limitations begins to run against a person with an adverse claim to land when the person adversely enters the land. BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59, 73 (Tex. 2011).
23 Tract had been grazed as a contiguous unit since 1962, there is no evidence
regarding who originally built the fence along the east side of CR 459819 or that it
was connected to and part of a larger fencing system around the Disputed
Property and Ratliff Tract during either the Ten-year Period or Twenty-five-year
Period.20 See Mixon v. Clark, 518 S.W.2d 402, 406 (Tex. Civ. App.––Tyler 1974,
writ ref’d n.r.e.) (“In determining whether the fence is or is not a casual fence, we
must look to the whole fencing pattern and the use made of the fence, as well as
all the other facts and circumstances.”). That a gate in the fence was the only
entrance to the Ratliff Tract from 1962 to 1982 is some evidence of an intent to
enclose by a prior owner, and implies that the fence was part of a larger
enclosure, but is not conclusive proof of a designed enclosure if Leonard and
Lucille indeed shared use of the Disputed Property. And although Leonard
19 Indeed, Leonard’s own affidavit establishes that both the fence and the gate predate his purchase of the Pettys’ property in 1962, which is as consistent with an inference that the fence was Lucille’s as with an inference that it was the Pettys’. 20 Evidence that a fence has always been used a certain way is not the same as evidence of the purpose for which the fence was built. Mohnke, 915 S.W.2d at 593. Leonard’s maintenance of the fence unaccompanied by some other act evidencing an intention to enclose the Disputed Property along with his own––such as connecting other fencing around the Ratliff Tract to the fence–– distinguishes this case from other cases similar to Butler. See Heirs of Simmons v. Bouligny, No. 13-09-00269-CV, 2010 WL 1619069, at *6–7 (Tex. App.–– Corpus Christi Apr. 22, 2010, no pet.) (mem. op.); Smith v. Fort Bend ISD, No. A14-93-00289-CV, 1994 WL 26953, at *2 (Tex. App.––Houston [14th Dist.] Feb. 3, 1994, writ denied) (not designated for publication); King v. Inwood N. Assocs., 563 S.W.2d 309, 313 (Tex. App.––Dallas 1978, no writ); Doyle v. Ellis, 549 S.W.2d 62, 63–64 (Tex. App.––Waco 1977, no writ); Mixon v. Clark, 518 S.W.2d 402, 406 (Tex. Civ. App.––Tyler 1974, writ ref’d n.r.e.).
24 averred that he co-operated the pond on the Disputed Property, he did not say
with whom; he did not build the pond; and he did not state for whom the A.S.C.S.
built the pond. Finally, there is no evidence about the frequency of the grazing on
the Disputed Property during the Ten-year Period and Twenty-five-year Period.
Further, although the Couch Heirs’ affidavits do not provide their respective
ages, they at least raise a fact issue as to the reputation in their family about the
ownership of the Disputed Property. Additionally, they show that at some point, a
fence had separated the Disputed Property from the Ratliff Tract, possibly
because CR 4598 was moved in that area, and that in the 1970s, cattle would
share the stock pond, which straddled the Disputed Property and Ratliff Tract.
Finally, the Couch Heirs raise a fact issue as to which family, or its tenants,
maintained the fence along the eastern edge of CR 4598, or whether they both
did.
Thus, we hold that the facts in this case are more like the facts in Mead, in
which this court held that a genuine issue of material fact existed on the elements
of adverse possession that precluded summary judgment. In Mead, the trial court
had granted summary judgment for the record title holders, but this court
determined that the following evidence raised a fact issue on the elements of
adverse possession: (1) the purported adverse possessors had used the
disputed tract “regularly and continuously” for grazing and ranching “at all times”;
(2) the disputed tract was contiguous to and fenced within their land, which they
operated as a unit with the disputed tract; (3) their tenant had repaired the fence
25 as needed over the years, adding and replacing posts, and adding, stretching,
and tying wire; and (4) neither party provided evidence about the reputation in
the community as to the true owner of the disputed tract. 225 S.W.3d at 719.
Arguably, the no trespassing signs distinguish this case from other adverse
possession cases holding that similar evidence does not conclusively prove
adverse possession. See, e.g., Rhodes, 802 S.W.2d at 645–46; Parker v. Weber,
No. 10-16-00446-CV, 2018 WL 2248369, at *3–4 (Tex. App.––Waco May 16,
2018, no pet. h.) (mem. op.); Acrey v. Langston Land Partners, LP, No. 11-14-
00025-CV, 2016 WL 1725371, at *3–5 (Tex. App.––Eastland Apr. 29, 2016, no
pet.) (mem. op.); Mendoza v. Ramirez, 336 S.W.3d 321, 328–29 (Tex. App.––El
Paso 2010, pet. denied); Anderson v. Shaw, No. 03-08-00352-CV, 2010 WL
2428132, at *10–11 (Tex. App.––Austin June 18, 2010, no pet.) (mem. op.);
Hopkins v. State, No. 03-07-00253-CV, 2009 WL 3806160, at *6–8 (Tex. App.––
Austin Nov. 13, 2009, no pet.) (mem. op.); Harlow v. Giles, 132 S.W.3d 641,
647–50 (Tex. App.––Eastland 2004, pet. denied). But that evidence must be
considered in light of the evidence that the families shared use of the stock pond
in the 1970s and that the existing fence was built by the Couch Heirs’ family to
keep their own cattle off CR 4598. That Leonard placed no trespassing signs on
the fence by the pond could be consistent with either his exclusive intent to keep
Lucille and the Couch Heirs off the Disputed Property or an intent to keep all
those other than permitted grazers and users off the property. See Hopkins, 2009
WL 3806160, at *8 (noting that purported adverse possessor’s assertion to third
26 party that he owned disputed land was not sufficient evidence of hostile
possession vis-a-vis record owner); see also Rick v. Grubbs, 214 S.W.2d 925,
927 (Tex. 1948) (citing authority for propositions that (1) to prove adverse
possession, a claimant must show that he “wholly excluded” the true owner and
(2) joint possession defeats an adverse possession claim). Accordingly, we
conclude that evidence about the no trespassing signs does not tip the scales of
the remaining evidence of adverse possession to conclusive proof. But cf. Click
v. Collins, 273 S.W.2d 90, 91–93 (Tex. Civ. App.––Galveston 1954, writ ref’d
n.r.e.) (holding evidence was sufficient to uphold jury verdict for adverse
possessor when, upon taking possession of land adjacent to the disputed tract,
he placed a fence around western side of his property, which connected with
existing fences to enclose his property into a unit with the disputed tract and
another adjacent property under one continuous fence; the enclosure was for the
sole purpose of enclosing the land; he grazed his cattle “indiscriminately” and
“continuously” within the enclosed area for twenty-six years; he initially repaired
and thereafter continuously maintained all of the fencing around the enclosed
area; and he posted no trespassing signs for twenty-six years––from 1925 until
the time of trial).
Finally, there is conflicting evidence regarding who paid taxes on the
Disputed Property from 1962 through 2015.21 See Phillips v. Willy, No. 01-07-
21 In the 2009 adverse possession affidavit, Leonard averred that he had paid the ad valorem taxes on the property “continuously” since 1962. Gross 27 00159-CV, 2010 WL 337001, at *12 (Tex. App.––Houston [1st Dist.] Jan. 28,
2010, pet. denied) (mem. op.) (noting that although the payment of taxes on
property is some evidence of adverse possession, it is not conclusive proof);
Hopkins, 2009 WL 3806160, at *8.
For these reasons, we hold that the trial court erred by granting summary
judgment on the Adverse Claimants’ claims against the Couch Heirs. We sustain
the Couch Heirs’ first issue.
IV. Couch Heirs’ Counterclaims and Third-Party Defendant Claims
Because the Adverse Claimants’ and Leonard’s summary judgment motion
on the Couch Heirs’ claims depends on the Adverse Claimants’ successfully
proving that title vested in them, and because we hold that the trial court erred by
determining that the Adverse Claimants conclusively proved so, we further hold
averred in her summary judgment affidavit that “we,” presumably her family, had been paying property taxes on the 312 acres for approximately 84 years. Not only are both of these assertions conclusory, but because they are directly opposing, they can do nothing more than raise a fact issue in this context. Great Am. Reserve Ins. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965) (“Evidence which favors the movant’s position is not considered unless it is uncontradicted.”). It is well-settled that a trial court may not grant a motion for summary judgment if doing so requires it to determine the credibility of affiants or the weight of their testimony. E.g., Gaines v. Hamman, 358 S.W.2d 557, 563 (Tex. 1962) (“It is not the purpose of the summary judgment rule to provide either a trial by deposition or a trial by affidavit, but rather to provide a method of summarily terminating a case when it clearly appears that only a question of law is involved . . . .”); Gulbenkian v. Penn, 252 S.W.2d 929, 932 (Tex. 1952); cf. In re Zimmer, Inc., 451 S.W.3d 893, 901 (Tex. App.—Dallas 2014, orig. proceeding) (“A trial judge ruling on a motion for new trial based on affidavits of juror misconduct alone cannot perform the critical function of assessing the credibility of the affiants . . . .”).
28 that the trial court erred by granting summary judgment on the Couch Heirs’
counterclaims against the Adverse Claimants and third-party claims against
Leonard. We thus sustain the Couch Heirs’ second issue.
V. Conclusion
Having sustained both of the Couch Heirs’ issues, we reverse the trial
court’s judgment, and we remand this case to the trial court.
/s/ Wade Birdwell WADE BIRDWELL JUSTICE
PANEL: WALKER, KERR, and BIRDWELL, JJ.
DELIVERED: August 9, 2018