Shouse v. Roberts

737 S.W.2d 354, 1987 Tex. App. LEXIS 7906
CourtCourt of Appeals of Texas
DecidedJuly 23, 1987
DocketNo. B14-86-701-CV
StatusPublished
Cited by3 cases

This text of 737 S.W.2d 354 (Shouse v. Roberts) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shouse v. Roberts, 737 S.W.2d 354, 1987 Tex. App. LEXIS 7906 (Tex. Ct. App. 1987).

Opinion

OPINION

ELLIS, Justice.

Appellee, Glen Roberts, Trustee, brought a trespass to try title action against appel[355]*355lants, E.E. Shouse, Independent Executor of the Estate of W.H. Cocke, Deceased, et al., claiming adverse possession of a five acre tract in Brazoria County, Texas. The trial court determined as a matter of law that W.H. Cocke was the record owner of the property as of July 2, 1969. The jury found in favor of appellee under the ten-year statute of limitations and the trial court entered judgment that appellee recover title to the disputed property.1 We affirm.

Appellants present three points of error. In their first point they contend the trial court erred by failing to define the terms “designedly enclosed” and “casual or incidental fencing” as used in an adverse possession claim based on the grazing of livestock. Appellants attack the legal and factual sufficiency of the evidence supporting the jury finding of adverse possession in their second and third points of error. Claiming no evidence or insufficient evidence to show the disputed property was “designedly enclosed” for purposes of grazing livestock, they argue the requirements of ten-year limitation title were thus not met.

A brief outline of relevant facts is necessary. The property at issue is Tract 45, Brazos Coast Investment Company Subdivision No. 15, Stephen F. Austin League, A-19, Brazoria County, Texas (Tract 45 or the property). Although appellee and his daughter held a 1954 warranty deed to Tract 45, the trial court found as a matter of law that W.H. Cocke (one of appellants, now deceased) was the record owner as of July 2, 1969. Cocke had acquired title to Tract 45 through a tax sale in the 1930’s.

Acting as his trustee, appellee’s daughter, Penelope Roberts Cooley, leased Tract 45 to Wilson Waggoner (Waggoner or ap-pellee’s tenant) in July 1969. The written lease, dated July 3,1969, was executed and recorded by Cooley and Waggoner. Upon execution of the lease Waggoner went into possession of Tract 45 as appellee’s tenant, using the property for grazing livestock.

At the time the lease was executed, Wag-goner owned and lived on Tract 46, the adjacent property on the south boundary of Tract 45. No boundary fence existed between the two tracts when Waggoner went into possession. However, there were “partial fences” on the other three sides of Tract 45 as of that date. Waggoner erected a fence between Tracts 45 and 46, and repaired and maintained the existing fences over the next ten years. He used Tract 45 regularly for grazing horses, and occasionally for cattle.

In response to Special Issue No. 1, the jury found appellee had held peaceable and adverse possession of the property in question for a period of ten consecutive years after July 2, 1969, and before trial. The trial court entered judgment in accordance with the jury finding of adverse possession, ordering that appellee recover title and possession to Tract 45 from appellants.

We address initially appellants’ third point of error in which they allege there is insufficient evidence to support the jury finding of appellee’s adverse possession, since there is insufficient evidence showing the property was “designedly enclosed” for the purpose of grazing livestock.

When the sole use of property is for the purpose of grazing livestock, and evidence of such use is made the basis of an adverse possession claim, the claimant must show the property in question was [356]*356designedly enclosed. McDonnold v. Weinacht, 465 S.W.2d 136, 141-42 (Tex.1971).2 It is undisputed that appellee’s use or occupancy of Tract 45, through Waggoner, was for grazing livestock. However, appellants argue there is insufficient evidence to show Tract 45 was “fenced in” intentionally, i.e., designedly enclosed, for grazing purposes. They claim, rather, that the property was merely casually or incidentally enclosed by the owner of Tract 46 (Waggoner), who “fenced out” Tract 45 by “fencing in” his own Tract 46. Therefore, they assert, the jury finding of adverse possession must fail for lack of support in the evidence that Tract 45 was designedly enclosed. We do not agree.

In reviewing factual insufficiency (“insufficient evidence”) points, we must consider all evidence in the record relevant to the fact finding being challenged. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). Furthermore, we will sustain a factual insufficiency point only if we determine the finding of a vital fact to be so contrary to the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. at 664-65, 244 S.W.2d at 661.

We have reviewed all relevant evidence in the record according to the aforementioned standards. We hold the evidence regarding the designed enclosure of Tract 45 sufficient to support the jury finding of ten-year adverse possession.

Appellants’ insistence that Tract 45 was merely “fenced out” rather than intentionally “fenced in” is incorrect. Their argument appears to rely on the fact that the boundary fence between Tracts 45 and 46 was constructed approximately six inches south of the Tract 45 property line, thus lying on Tract 46. It is apparent from Waggoner’s testimony that since his status was both that of appellee’s tenant and owner of the adjacent tract, he was forced to bear the entire cost of the fence. He therefore chose to lose several inches of Tract 46, which he owned, by having the fence erected south of Tract 46’s property line:

Q. Did you put that fence right on the property line?
A. I don’t recall. Normally where the other property owners don’t help me, I set over six inches from the survey line because usually a line fence is a partnership fence.

Appellants have either omitted other facts concerning the adverse possession claim, or have minimized the significance of those facts. In determining whether a disputed tract was incidentally or designedly enclosed, we must look to the whole fencing pattern and the use made of the fence as well as to other facts and circumstances. Auchterlonie v. McBride, 705 S.W.2d 183, 185 (Tex.App.—Houston [14th Dist.] 1985, no writ); Mixon v. Clark, 518 S.W.2d 402, 406 (Tex.App.—Tyler 1974, writ ref’d n.r. e.).

Having reviewed the record, we find other facts and circumstances relevant to ap-pellee’s claim. The 1969 lease and leases executed subsequent to 1969 establish the duty of appellee’s tenants to fence and maintain Tract 45:

IV

It is understood by and between Lessor and Lessee that Lessee will fence the property herein demised....

[from 1969 lease]

Waggoner testified that he fulfilled his lease obligation by erecting a fence several months after becoming appellee’s tenant:

Q. Mr. Waggoner ... [u]nder the lease, I believe you ... as the tenant ... were charged with maintaining the fences. Is that correct?
A.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
737 S.W.2d 354, 1987 Tex. App. LEXIS 7906, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shouse-v-roberts-texapp-1987.