adverse possession revisited - tlta

2004 TEXAS LAND TITLE INSTITUTE DECEMBER 2 – 3, 2004

ADVERSE POSSESSION REVISITED - BOUNDARY DISPUTES

Frank Oliver Oliver & Oliver, P.C.

100 Congress Avenue, Suite 2100 Austin, Texas 78701

Telephone: (512) 370-4050 Facsimile: (512) 370-4051

2004 Texas Land Title Institute Adverse Possession Revisited – Boundary Disputes

RESUME OF FRANK OLIVER

Frank Oliver practices law in Austin, Texas, with the firm of Oliver & Oliver, P.C. He is a 1972 graduate of the University of Texas and a 1975 honors graduate of the University of Texas Law School where he was an editor of the Texas Law Review. Following a federal judicial clerkship, he has engaged in the private practice of law, principally in the area of real estate transactions and litigation. He has represented title insurance companies, agents, and insureds for over twenty years. He is the author of Garrett and McDaniel, DTPA Liability for Issuance of a Title Insurance Commitment, published in 26 Texas Tech Law Review 857 (1995). He is an Associate Member of the Texas Land Title Association and has served as a member of the Defense Counsel Committee. He is a Life Fellow of the Texas Bar Foundation.

ADVERSE POSSESSION REVISITED - BOUNDARY DISPUTES

By Frank Oliver Oliver & Oliver, P.C.

The purpose of this presentation is to provide a general overview of the Texas adverse possession statutes and the principal cases that have interpreted these statutes. Additionally, an update on boundary disputes is provided in light of the 2004 decision of the Texas Supreme Court in Martin v. Amerman, 133 S.W.3d 262 (Tex. 2004), holding that a statutory trespass to try title suit is the exclusive method to litigate a boundary dispute.

I. LIMITATIONS STATUTES APPLICABLE TO REAL PROPERTY ACTIONS.

A. Limitations of Real Property Actions. The limitations statutes govern the time within which the record owner must bring suit to recover real property in the possession of an adverse claimant.

1. The statutes of limitations applicable to actions for the recovery of real

property are found in Subchapter B of Chapter 16 of the Texas Civil Practice and Remedies Code (CPRC).

2. There are five different limitations statutes applicable to actions for the

recovery of real property—the three-year statute, the five-year statute, the ten-year statute, and two different 25-year statutes.

a. The Three-Year Statute of Limitations. The three-year statute is

found in CPRC § 16.024.

b. The Five-Year Statute of Limitations. The five-year statute is found in CPRC §16.025.

c. The Ten-Year Statute of Limitations. The ten-year statute is found

in CPRC §16.026.

d. The 25-Year Statute of Limitations (Without Recorded Deed). The 25-year statute applicable to adverse claimants not holding under a recorded deed is found in CPRC § 16.027.

e. The 25-Year Statute of Limitations (With Recorded Deed). The

25-year statute applicable to adverse claimants holding under a recorded deed or other instrument purporting to convey the property is found in CPRC §16.028.

B. Different Requirements for Each Statute. In considering the possible application

of one or more of the limitations statutes, careful attention must be given to the specific statutory requirements contained in the language of each of the statutes,

2004 Texas Land Title Institute Page 1 Adverse Possession Revisited – Boundary Disputes

which differ. Also necessary is a close reading of the statutory definitions provided for important terms, such as “adverse possession,” “title,” and “color of title.”

C. Importance of Case Law. While first resort must be to the statutory language

contained in the five different limitations statutes and the statutory definitions of key terms, these statutes have been considered in a number of principal cases. A sufficient working knowledge of the limitations statutes requires familiarity with these principal cases that have interpreted and applied the statutory provisions.

D. The Concept of Notice to the Record Owner. Limitations title is founded upon

notice. Simonds v. Stanolind Oil & Gas Co., 134 Tex. 332, 114 S.W.2d 226 (Tex. 1938).

1. Running through the limitations statutes is the concept that the shorter

the limitations period, the greater are the indicia of a claim to ownership required by the adverse claimant to bring to the attention of the record owner notice of the adverse claim. Conversely, the longer the period of adverse possession uninterrupted by a suit filed by the record owner, fewer are the requirements for the adverse claimant to prevail against the record owner.

2. There is also an element of fairness to the record owner at work in the

cases. As stated by the Texas Supreme Court in Word v. Drouthett, 44 Tex. 365, 1875 WL 7698 (Tex. 1875), “[t]he possession must be fair and open, because the statute was not made to serve the purpose of artifice and trick’.”

E. Simplified Chart of Different Statutory Requirements. A simplified chart

showing a comparison of the different requirements under the five limitations statutes is provided at the end of this paper.

F. Title Quieted By Limitations. In addition to being statutes of limitation governing

the time within which the record owner must bring suit against the adverse claimant, the limitations statutes also operate to quiet title in the adverse claimant.

1. Adverse Claimant Acquires Full Title. CPRC § 16.030(a) provides that:

“If an action for the recovery of real property is barred under this chapter, the person who holds the property in peaceable and adverse possession has full title, precluding all claims.”

2. Burton’s Heirs v. Carroll, 72 S.W. 581, 582-3 (Tex. 1901): “Full title

embraces legal and equitable title to the property, and comprehends that which passed from the government by patent; consequently, if limitation confers full title upon the possessor, then it must divest title out of all


other claimants, and vest the same in the possessor under the claim of limitation.”

3. Once limitations title is perfected, it is not lost by a subsequent cessation

of possession. Branch v. Baker, 7 S.W. 808 (Tex. 1888).

4. Similarly, once limitations title is perfected, it cannot be lost by oral acknowledgment of title in another. Jobe v. Osborne, 97 S.W.2d 939, 943 (Tex. 1936).

5. The defense of bona fide purchaser for value is not available to a

purchaser from the record titleholder against an adverse claimant whose title has been perfected by limitations. Marshburn v. Stewart, 295 S.W. 679, 688 (Tex. Civ. App.--Beaumont 1927); Bowles v. Bryan, 247 S.W. 276 (Tex. 1923).

G. Limitations Statutes Inapplicable To Property Dedicated to Public Use. CPRC §

16.030(b) provides that: “A person may not acquire through adverse possession any right or title to real property dedicated to public use.”

1. Additionally, CPRC § 16.061 generally exempts the state, political

subdivisions, counties, cities, and governmental districts from the limitations statutes applicable to actions for the recovery of real property.

2. Case law also recognizes that title to state lands cannot be acquired by

adverse possession. Jackson v. Nacogdoches County, 188 S.W.2d 237, 238 (Tex. Civ. App.—Dallas 1945, no writ)(“ It is settled law in this State that title to State lands cannot be acquired by adverse possession.”).

3. Easement dedicated to public use by private owner cannot be lost by

adverse possession. Ellis v. Jansing, 620 S.W.2d 569, 570 (Tex. 1981)(easement used for storm sewer).

4. Municipal corporations were not excepted from the operation of the

limitations statutes until 1887, with the 1887 exception only applying to lands dedicated to public use. Acts 1887, General Laws of the State of Texas, 20th Leg., p. 28. It was not until 1953 that municipal corporations were fully excepted from the operation of the limitations statutes. Vernon’s Ann. Civ. St. art. 5517. See City of Galveston v. Menard, 23 Tex. 349 (1859); Johnston v. Llano County, 39 S.W. 995 (Tex. Civ. App.—Austin, 1897); Neblett v. R.S. Sterling Inv. Co., 233 S.W. 604 (Tex. Civ. App.—Beaumont 1921, writ ref’d).


II. THE REQUIREMENT OF “PEACEABLE AND ADVERSE POSSESSION.”

A. Required By All Limitations Statutes. Each of the limitations statutes now requires that the adverse claimant have held the land by “peaceable and adverse possession.” Thus, whether claiming under the three-year, five-year, ten-year, or either of the 25-year statutes, the adverse claimant must establish the requirement of “peaceable and adverse possession.”

1. Interestingly, the original 1841 enactment of the limitations statutes

contained no express requirement or definition of adverse possession. But in an early case the Supreme Court held that adverse possession—defined by the Court in language closely followed in the later statute—was required to maintain the limitations claim. Portis v. Hill, 3 Tex. 273, 1848 WL 3903 (Tex. 1848)(requiring “an actual, visible and exclusive appropriation of land, commenced and continued under a claim of right; either under an openly avowed claim, or under a constructive claim arising from the acts and circumstances attending the appropriation, to hold the land against him who was seized.”).

2. The limitations statute was amended in 1857 to add the present

definition of adverse possession, which was judicially acknowledged as a mere statement of what the law already required. Houston Oil Co. of Tex. v. Ainsworth, 228 S.W. 185 (Tex. 1921).

B. “Peaceable Possession” Defined By Statute. The term “peaceable possession” is

defined in CPRC § 16.021(3) as “possession of real property that is continuous and is not interrupted by an adverse suit to recover the property.”

1. Suit Must Be Filed With Reasonably Diligent Service Accomplished. If

citation is not issued and the defendant served within a reasonable period of time, limitations continues to run. Adams v. Slattery, 156 Tex. 433, 295 S.W.2d 859 (Tex. 1956); Ricker v. Shoemaker, 81 Tex. 22, 16 S.W. 645 (Tex. 1891).

2. Abandonment of Suit. If the suit is abandoned or dismissed, it is as if

suit was never filed for purposes of the limitations statutes. Bigham v. Talbot, 63 Tex. 271 (Tex. 1885).

3. Required Joinder of All Adverse Claimants. Limitations does not stop

running in favor of an adverse claimant until he is joined as a defendant in an existing suit. Cable v. Jackson, 42 S.W. 136 (Tex. Civ. App.—1897, writ ref’d).

4. Suit Against Tenant in Possession. A suit filed by the record owner

against a tenant in possession under the adverse claimant landlord stops


the running of limitations in favor of the landlord. Stout v. Tall, 71 Tex. 438, 9 S.W. 329 (Tex. 1888).

C. “Adverse Possession” Defined By Statute. The term “adverse possession” is

defined in CPRC § 16.021(1) as “an actual and visible appropriation of real property, commenced under a claim of right that is inconsistent with and is hostile to the claim of another person.”

1. Characteristics of Adverse Possession. The essential characteristics of adverse possession were most artfully described by the Texas Supreme Court in Word v. Drouthett, 44 Tex. 365, 1875 WL 7698 (Tex. 1875): “The possession must be exclusive, or, as it is generally expressed, it must be "actual, continued, visible, notorious, distinct, and hostile. . . . It must neither be abandoned, yielded up, or held in subordination to, recognition of, or dependent upon the will or right of another. He who would claim by reason of his adverse possession must, as has been said, ‘keep his flag flying.’ His entry upon the land must be with intent to claim it as his own or hold it for himself; or his intention to do so, if conceived after going into possession for some other purpose, must be manifested by some open or visible act or declaration showing such purpose, in order to set the statute in motion in his favor.”

D. Almost Always a Fact Issue. The requirement of “adverse possession” is almost

always a fact issue and only very rarely decided as a question of law. Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex. 1985); Word v. Drouthett, 44 Tex. 365, 1875 WL 7698 (Tex. 1875)(“The fact of possession, and the intent and purpose with which it is taken and held, are questions for the jury. But what character of facts are requisite or sufficient to entitle a party setting it up to the protection of the statute, is a question of law.”).

1. For another example, see Rhodes v. Cahill, 802 S.W.2d 643, 646 (Tex.

1990), in which following a bench trial the trial court rendered judgment that the adverse claimant take nothing, the court of appeals then held that the adverse claimant had established her claim as a matter of law, and the Supreme Court disagreed with the court of appeals and remanded.

E. Requirement of Actual And Visible Appropriation. The statutory definition of

“adverse possession” in CPRC § 16.021(1) requires an “actual and visible appropriation” of the land by the adverse claimant.

1. Mere Occupancy Insufficient. Mere occupancy of land without any

intention to appropriate it will not support the statute of limitation.

a. Wright v. Vernon Compress Co., 156 Tex. 474, 296 S.W.2d 517, 521 (Tex. 1956)(insubstantial dwelling on the property): “The evidence shows only mere occupancy of the land by Charley Shahay. There is no evidence showing that the claim of Shahay


was adverse. There is evidence that he lived on the land, but none that he claimed the land as his own.”

b. Nona Mills Co. v. Wright, 101 Tex. 14, 102 S.W. 1118, 1121 (Tex.

1907)(camping on the property not sufficient): “The possession to be adverse must be of that character which would notify the owner of the intention of the occupant of the land to appropriate it to his own use. It surely cannot be contended that the camping upon a tract of wild land would constitute such adverse possession as would notify the owner that his land was being claimed by another.”

c. Sellman v. Hardin, 58 Tex. 86 (Tex. 1882)(did not reside on

premises, but constructed hog pins and cut wood – held not sufficient).

2. Possession Through Tenant. The adverse claimant may establish

possession through the possession of the adverse claimant’s tenant. Warren v. Fredericks, 76 Tex. 647, 13 S.W. 643 (Tex. 1890)(“ Title to land by limitation may be acquired by one by adverse possession of it through another who is his tenant.”); Chamberlain v. Pyras, 81 Tex. 511, 17 S.W. 50 (Tex. 1891)(father who placed sons in possession could claim possession through them as tenants).

a. However, if the lease to the tenant describes a smaller tract than

that claimed by the adverse claimant, the possession of the tenant attributable to the adverse claimant only extends to the boundaries of the lease and not to the entire tract. Read v. Allen, 63 Tex. 154, 1885 WL 7005 (Tex. 1885).

3. Cotenants Owning Undivided Interests. Because each cotenant owning

an undivided interest in real property has an equal right to possession and use of the property, so that possession and use by one cotenant would not ordinarily give notice of an adverse claim of ownership to another cotenant, the requirements for one cotenant to gain limitations title against another cotenant are strenuous.

a. Notice of Repudiation Of Tenancy Required. One cotenant may

claim adversely to another cotenant only if the adverse claimant has repudiated the cotenancy and notice of such repudiation has been brought home to the other cotenant. The notice of repudiation must be clear, unequivocal, and unmistakable. Poenisch v. Quarnstrom, 361 S.W.2d 367 368 (Tex. 1962).

b. Possession and Payment of Taxes Alone Insufficient. Possession

coupled with payment of taxes is not alone sufficient notice to the


cotenant of repudiation of the tenancy. Alexander v. Kennedy, 19 Tex. 488, 1857 WL 5147 (Tex. 1857); Sebesta v. Daniels, 812 S.W.2d 641 (Tex. App.—Houston [14th Dist.] 1991, writ denied).

i. Texas Property Code Chapter 29 Remedy. But note the

statutory remedy of forced sale of the undivided interest of a non-tax paying heir available to the tax-paying heir under Chapter 29 of the Texas Property Code. TEX. PROP. CODE § 29.001 et seq.

4. Grazing Cases.

a. Requirement for Enclosure. When the adverse claimant uses the

land solely for grazing livestock, the land must be enclosed by a substantial fence in order to give notice of the adverse claim of ownership to the record owner. De Las Fuentes v. Macdonnell, 85 Tex. 132, 20 S.W. 43 (Tex. 1892); Blankenship v. Carpenter, 741 S.W.2d 578, 580 (Tex. App.—Fort Worth 1981), writ ref’d n.r.e. per curiam, 628 S.W.2d 48 (Tex. 1982).

b. Historical Reason for Special Rule. The rule arose out of the

customary practice in Texas of common grazing on unenclosed land. McDonnold v. Weinacht, 465 S.W.2d 136, 141 (Tex. 1971).

c. Grazing Unenclosed Land Will Not Commence Running of

Limitations. Limitations title cannot be acquired by grazing unenclosed land. Osborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781, 785 (Tex. 1954).

d. Enclosure Alone Insufficient Without Use. Limitations title cannot

be acquired merely by fencing land without grazing it or farming it or putting it to other use. Id.

e. Designed Enclosure. If the adverse claimant encloses a tract of

land by building and maintaining a fence to use the land exclusively for his purposes, then the fence is held to be a “designed enclosure” sufficient to give notice to the record owner of the adverse claim of ownership. Osborn v. Deep Rock Oil Corp., 267 S.W.2d 781 (Tex. 1954).

f. Casual Fence. If, however, a person other than the adverse

claimant or his predecessor has constructed the fence, and the adverse claimant has not contributed to the maintenance of the fence, then the fence is regarded as a “casual fence” that does not constitute sufficient notice to the record owner of the adverse


claimant. West Production Co. v. Kahanek, 121 S.W.2d 328, 331 (Tex. 1938).

g. Material Enhancement to Existing Fence. Unless the adverse

claimant has made a material enhancement or change to an existing fence erected by another, maintenance of a casual fence is not regarded as sufficient to make the fence a designed enclosure that would give notice of a adverse claim of ownership to the record owner. Rhodes v. Cahill, 802 S.W.2d 643, 646 (Tex. 1990).

h. Examination of Entire Fencing Pattern Required. The inquiry to

determine whether the adverse claimant is asserting a actual claim of ownership, rather than engaging in only a casual use of an existing fence for convenience, requires that the court consider “the whole fencing pattern and the use made of the fence, as well as all the other facts and circumstances.” Mixson v. Clark, 518 S.W.2d 402, 406 (Tex. Civ. App.—Tyler 1974, writ ref’d n.r.e.).

i. Further Reading. A thorough discussion of the cases involving

causal and designed fences can be found in Comment, Casual and Designed Enclosures: How Texas Courts Determine Adverse Possession, 44 BAYLOR L.REV. 921 (1992).

F. Commenced and Continued Under An Inconsistent and Hostile Claim of Right.

The statutory definition of “adverse possession” further requires that the possession of the adverse claimant have “commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person.”

1. Commenced and Continued.

a. General Requirement of Continuous Possession. Adverse

possession must be continuous and unbroken for the entire statutory period. Chandler v. Rushing, 38 Tex. 591 (Tex. 1873).

b. Use Must Be More Than Sporadic, Irregular, or Occasional.

Sporadic, irregular, or occasional use of land does not satisfy the limitations statutes. Vaughan v. Anderson, 495 S.W.2d 327 (Tex. Civ. App.-Texarkana 1973, writ ref’d n.r.e.).

c. Breaks in Possession Must Be For Reasonable Interval Only. If

there is a break in possession, there must be a reasonable explanation. For example, in Taylor v. Dunn, 108 Tex. 337, 193 S.W. 66 (Tex. 1917), a three month break in possession due to a tenant’s illness resulted in a break in the required possession. The Court placed the burden on the adverse claimant to establish that


any break in possession is for a reasonable interval only and concluded that the adverse claimant had failed to sustain that burden.

i. For a representative case holding that short breaks in the

continuity of possession did not defeat the claim of adverse possession, see: Wickizer v. Williams, 173 S.W. 288 (Tex. Civ. App.—Austin 1914), rehearing overruled, 173 S.W. 1162 (Tex. Civ. App.-Austin 1915 writ ref’d).

d. Break in Possession Resulting From Change of Tenants. The

Supreme Court in Whitehead v. Foley, 28 Tex. 1, 15 (Tex. 1866), recognized that: “A short and temporary vacation of the premises is the ordinary, and frequently the unavoidable, incident of the change of tenants. If the attendant circumstances are such, that a reasonable and prudent man would not be induced to suppose the possession had been abandoned, it cannot be insisted that the running of the statute has been interrupted.”

i. The failure of the adverse claimant to prove the

circumstances and duration of each interval between tenants will result in a failure to prove the continuous nature of the possession. Overand v. Menczer, 83 Tex. 122, 18 S.W. 301 (Tex. 1892).

e. Failure to Maintain Fences. The failure to maintain fences for a

period of time is not automatically fatal to the claim of adverse possession. Gunter v. Meade, 78 Tex. 634, 14 S.W. 562 (Tex.1890)(stating this rule, but affirming the trial court’s finding against the adverse claimant on conflicting evidence).

f. Seasonal Agricultural Use. A break in possession and use between

the harvesting of one crop and the planting of another group is generally not considered a break in the continuity of possession required under the limitations statutes. Taylor v. Dunn, 108 Tex. 337, 193 S.W. 66 (Tex. 1917); De Martinez v. De Vidaurri, 219 S.W.2d 823 (Tex. Civ. App.—San Antonio 1949, writ ref’d n.r.e.)

g. Seasonal Commercial Use. In Winchester v. Porretto, 432 S.W.2d

170 (Tex. Civ. App.—Houston [1st. Dist.] 1968, writ ref’d), it was held as a matter of law that seasonal use of a beach area for summer rental of beach chairs, umbrellas, and floats and concession sales did not constitute the continuous possession required by the statute.


i. Further Reading. See Comment, Seasonal Use of Land for Business Purposes, 21 BAYLOR L. REV. 217 (1969), for a discussion of this issue and a criticism of the holding in Winchester v. Porretto.

2. Under an Inconsistent and Hostile Claim of Right. The statutory

definition of “adverse possession” in CPRC § 16.02(1) requires that the adverse claimant be making “a claim of right that is inconsistent with and hostile to the claim of another person.”

a. The Issue of Intent. Texas case law is not fully settled on the

intent of the adverse claimant required to meet the statutory element of an “inconsistent and hostile claim of right.” This issue arises most often in mistaken boundary cases. The question is whether the statute requires that the adverse claimant have an actual subjective intent and knowledge that he is occupying and claiming the property of another person or does the statute only require that the adverse claimant enter upon the property and claim it as his own.

b. The French Rule. Texas has generally followed the “French Rule”

adopted by the Connecticut Supreme Court in French v. Pearce, 8 Conn. 439 (1831). There the adverse claimant mistakenly believed that he was occupying to his boundary line and did not actually know that he was encroaching on his neighbor’s property. The trial court was of the opinion that an adverse claimant could not have the requisite intent to sustain a claim of adverse possession if he claimed only to his boundary line and so instructed the jury. The Connecticut Supreme Court disagreed, holding that the adverse claimant does not need to know that he is claiming land owned by another person in order to meet the requirement of adverse possession.

c. Contrary View to French Rule. The opposite result was reached by

the Maine Supreme Court in Preble v. Maine Central R.R, 85 Me. 260, 27 A. 149 (1893), in which it was held that one claiming only to his boundary line could not acquire his neighbor’s property by adverse possession.

d. Calfee v. Duke – Adoption of French Rule. The Texas Supreme

Court appeared to adopt the French Rule in Calfee v. Duke, 544 S.W.2d 640, 642 (Tex. 1976), a mistaken boundary case, stating the following in favor of the adverse claimant: “It does seem clear that what he was saying at all times was that for over 20 years he never thought of himself as claiming adversely to anyone for the simple reason that he thought that he was the rightful owner and


had no competition for that ownership. . . . That being his claim of right, and it being coupled with his actual and visible possession and use, the adverse claim and possession satisfy the statutory requirements and cannot be defeated by [his] lack of knowledge of the deficiency of his record title or by the absence of a realization that there could be other claimants for the land.” The Supreme Court held this was a sufficient claim of right by the adverse claimant to satisfy the statute.

e. Ellis v. Jansing – Retreat From French Rule? But five years later,

in Ellis v. Jansing, 620 S.W.2d 569, 571-2 (Tex. 1981), another boundary case, the Texas Supreme Court, without citation to Calfee v. Duke, seemingly or certainly arguably held to the contrary. The Supreme Court stated as follows: “This leaves us with the question of whether the testimony of Mr. Copeland that he bought the property thinking that the boundary was the concrete retaining wall and maintained it as part of his yard was sufficient to raise a fact issue of adverse possession. Mr. Copeland testified he never claimed or intended to claim any property other than that described in his deed, or what he thought was contained in his deed, and he never intended to claim any property owned by the abutting property owners. . . . We hold these facts are legally insufficient to sustain a claim of adverse possession.”

f. Subsequent Texas Cases. More recent court of appeals cases

follow the French Rule. See Julien v. Baker, 758 S.W.2d 873, 876-7 (Tex. App.—Houston [14th Dist.] 1988, writ denied); Tran v. Macha, 2004 WL 2415100 (Tex. App.—Houston [1st Dist. 2004)(specifically rejecting scienter requirement and holding that adverse possession need not be intentional and that the property was adversely possessed notwithstanding a mutual mistake regarding the boundary line).

g. Further Reading. A helpful discussion of this issue can be found in

Comment, Adverse Possession in Mistaken Boundary Cases, 43 BAYLOR L. REV. 389 (1991).

G. To Be Adverse the Possession of the Adverse Claimant Must Be Exclusive. The

limitations statutes contain no express requirement that the possession of the adverse claimant be exclusive.

1. Judicially Implied Requirement. In an early decision, however, it was

recognized that a claim of exclusive ownership is a required element of adverse possession. Bender v. Brooks, 103 Tex. 329, 127 S.W. 168 (Tex. 1910).


a. It is now well settled that possession must be exclusive to be adverse under the limitations statutes. Southern Pine Lumber Co. v. Hart, 340 S.W.2d 775, 782 (Tex. 1960).

2. Possession May Not Be Shared With Owner or Owner’s Agents. Rick v.

Grubbs, 214 S.W.2d 925, 927 (Tex. 1948): “It follows that the law's requisites are not satisfied if the occupancy is shared with the owner or his agents or tenants.”

3. Additional Authorities for Requirement of Exclusive Possession. La.

Pac. Corp. v. Holmes, 94 S.W.3d 834, 838 (Tex. App.--San Antonio 2002, pet. denied)(“ Possession, in order to be adverse, must be exclusive of the true owner.”); Nelson v. Blanton, 2000 WL 34233674, *2 (Tex. App.--Eastland 2000)(“The possession must be exclusive, and it cannot be in subordination to or in recognition of the rights of another.”); Champion Paper & Fibre Co. v. Wooding, 321 S.W.2d 127, 136 (Tex. Civ. App.-Waco 1959, writ ref’d n.r.e).

H. Re-Entry By Record Owner Will Break the Continuity of Possession. Any re-

entry of possession by the record owner will cause a break in the required exclusive possession of the adverse claimant. Black v. Goolsbee, 226 S.W. 463 (Tex. Civ. App.—Beaumont 1920, writ dism’d w.o.j.); Southwestern Lumber Co. of New Jersey v. Allison, 276 S.W. 418 (Tex. 1925).

a. Entry By Third Party Under Record Owner. Entry by timber

purchaser from record owner resulted in break of exclusive possession required by adverse claimant. Coleman v. Waddell, 151 Tex. 337, 249 S.W.2d 912 (Tex. 1952).

I. Tacking of Successive Interests. The limitations statutes allow the tacking of

successive interests to satisfy the requisite limitations period.

1. Statutory Authorization for Tacking. CPRC § 16.023 provides as follows: “To satisfy a limitations period, peaceable and averse possession does not need to continue in the same person, but there must be privity of estate between each holder and his successor.”

2. Meaning of Privity of Estate. The term “privity of estate” as used in the

statute does not mean privity of title, but privity of possession.

a. As observed by the Texas Supreme Court in Hutto v. Cook, 139 Tex. 571, 164 S.W.2d 513 (Tex. 1942): “Privity of possession between successive occupants or possessors of the land is shown to have existed . . . by proof that the earlier occupant's possession and claim passed or was transferred to the later occupant by agreement, gift, devise or inheritance.”


3. Proof Requirements for Tacking. If relying on possession of a

predecessor, the adverse claimant must prove that the predecessor claimed the land and transferred the claim to the adverse claimant. Miller v. Fitzpatrick, 418 S.W.2d 884 (Tex. Civ. App.-Corpus Christi 1967, writ ref’d n.r.e.).

III. EFFECT OF DISABILITY – CPRC § 16.022

A. Statutory Definition of Legal Disability. CPRC § 16.022(a) provides as follows:

“For the purposes of this subchapter, a person is under a legal disability if the person is:

(1) younger than 18 years of age, regardless of whether the person is married

(2) of unsound mind; or (3) serving in the United States Armed Forces during time of war.

B. Effect of Legal Disability. CPRC § 16.022(b) provides as follows: “If a person

entitled to sue for recovery of real property or entitled to make a defense based on the title to the property is under a legal disability at the time title to the property vests or adverse possession commences, the time of the disability is not included in a limitations period.”

C. Termination of Legal Disability. CPRC § 16.022(c) provides that: “Except as

provided by Sections 16.027 and 16.028, after the termination of the legal disability, a person has the same time to present a claim that is allowed to others under this subchapter.”

1. The excepted statutes—CPRC § 16.027 and CPRC § 16.028—are the

two 25-year statutes. Neither of the 25-year statutes is tolled by the disability of the record owner.

IV. THE THREE-YEAR STATUTE OF LIMITATIONS – CPRC § 16.024

A. Statutory Requirements. The three-year statute of limitations contained in CPRC

§ 16.024 requires that “[a] person must bring suit to recover real property held by another in peaceable and adverse possession under title or color of title not later than three years after the cause of action accrues.”

B. Original Purpose – Resolution of Competing Grants from Sovereignty. The three-

year statute of limitations now contained in CPRC § 16.024 was first enacted in 1841 by the Congress of the Republic of Texas to resolve claims of title derived from competing grants from Spain, Mexico, and the Republic of Texas.


1. Historical Background. A good description of the historical background

of the three-year statute is provided in Humphrey v. The C. G. Jung Educ. Ctr. of Houston, 624 F.2d 637, 639 (5th Cir. 1980): “The Fifth Congress of the Republic of Texas enacted the stature in 1841 in response to a problem peculiar to Texas land titles. During the period from 1820 to 1840 three different sovereigns Spain, Mexico and the Republic of Texas exercised dominion over the region and issued grants to vast tracts of public land. Because the recording procedures utilized during these years were less than reliable, and because volumes of records were lost or destroyed during the revolution, many of these grants applied to lands that had previously been donated by the same or a different sovereign. As a result, it was often difficult or impossible to determine the ownership of large bodies of land. This confusion of land titles was particularly troublesome to a young nation in encouraging emigration and the development of its lands.”

2. Further Reading. For further information on the historical background

of the three-year statute of limitations, see: West, The Texas Three Statute of Limitations, 19 TEX. L. REV. 373 (1941); Norvell, The Three Year Statute of Limitations, 2 BAYLOR L. REV. 1 (1949).

3. Broader Use of the Three-Year Statute. The purpose of the three-year

statute is to resolve competing grants from the same or different sovereigns, and the proper use of the statute arguably is not to resolve competing claims under the same grant of title, though it has been so used. This is particularly so in the cases cited below in which the three-year statute of limitations has been used successfully to bar enforcement of judgment liens.

C. Peaceable And Adverse Possession. As with all of the five different limitations

statutes, the adverse claimant under the three-year statute must show “peaceable and adverse possession” for the three-year period required by the statute. Prescott v. Williams, 223 S.W.2d 290 (Tex. Civ. App.—Galveston 1949, no writ)(Adverse possession is an indispensable element of a claim under the three-year statute).

D. Under “Title” or “Color of Title.” The adverse claimant under the three-year

statute must have been in peaceable and adverse possession “under title or color of title.” Each of these terms—“title” and “color of title”—is defined by statute.

1. Statutory Definition of “Title.” The statutory term “title” is defined in

CPRC § 16.021(4) as “a regular chain of transfers of real property from or under the sovereignty of the soil.”


2. Distinction Between Actual Paramount Title and Statutory Term “Title.” The Texas Supreme Court has explained the distinction between actual paramount title and the term “title” as used in the three-year statute.

a. Something Less Than Paramount Title. Burnham v. Hardy Oil

Co., 108 Tex. 555, 195 S.W. 1139, 1142 (Tex. 1917): “As the term is used in this statute, it necessarily means something less than the paramount right to the land. The holder of such a right stands in no need of limitations for the establishment of the superiority of his claim. A statute of limitations of itself implies the existence of a better right than that possessed by the limitations claimant. Literally, the term as used in the statute, necessarily means something more than the right conferred by a naked deed, adverse possession under which, though it conveys no title, will, with other requirements met, perfect a limitation under the five years statute. Otherwise, there would be no justification for permitting title to ripen under a shorter period of limitations than is required by the five years statute.”

b. Purported Title Based Upon Regular Chain of Title from Some

Sovereign. The Texas Supreme Court in Burnham v. Hardy Oil Co., supra, further clarified the term “title” as used in the statute: “This means, in a word, that the claimant, by a regular chain of transfer of itself effectual for that purpose, must possess the purported title originally conferred by that sovereign’s grant, the source of the claimant’s right. It is not necessary that he hold whatever better right may lie back of the grant. Nor is it essential that any conveyance in the chain subsequent to the grant bestow a higher right than does the grant. The title must simply flow unbrokenly from its source.”

c. Three-Year Statute Inapplicable When Claim Is Based Upon

Actual Paramount Title. If the party claiming title does so under the actual paramount title, then the three-year statute does not apply. Waggers v. Swilley, 220 S.W.2d 673 (Tex. Civ. App.--Galveston 1949, writ ref’d n.r.e).

3. Statutory Definition of “Color of Title.” The term “color of title” is

defined in CPRC § 16.021(2) as “a consecutive chain of transfers to the person in peaceable possession that: (A) is not regular because of a muniment that is not properly recorded or is only in writing or because of a similar defect that does not want of intrinsic fairness or honesty; or (B) is based on a certificate of headright, land warrant, or land scrip.”

a. Not the Common Law Meaning. The statutory definition of “color

of title” is a technical definition and not the common law meaning


of the term as the appearance of title when there is none. Howth v. Farrar, 94 F.2d 654 (5th Cir. 1938), cert. denied, 305 U.S. 599, 59 S.Ct. 75, 83 L.Ed. 380 (1938).

b. Unbroken Chain of Transfers from Sovereignty Still Required for

Color of Title. For there to be “color of title” in the context of the three-year statute, there must still be an unbroken chain of transfers from the sovereignty to the adverse claimant, but it is not fatal if one or more of the transfers is irregular for some reason. By contrast, the adverse claim under the three-year statute will fail if “there is a complete hiatus in the chain.” Thompson v. Cragg, 24 Tex. 582, 596 (Tex. 1859).

4. Representative Cases Concerning Requirement of Title or Color of Title.

a. Prior Conveyance Breaking Chain. Prior conveyance by ancestor

of adverse claimants in possession defeated claim under the three-year statute. Harris v. Hardeman, 15 Tex. 466 (1855); Harris v. Hardeman, 27 Tex. 248 (Tex. 1863).

b. Deed Containing Condition Subsequent Breaking Chain. Adverse

claim under the three-year statute failed when a deed in the chain conveyed title subject to a condition subsequent. Humphrey v. The C. G. Jung Educ. Ctr. of Houston, 624 F.2d 637, 639 (5th Cir. 1980).

c. Not Claiming Under Sovereign. Three-year statute of limitations

does not apply if the adverse claimant does not derive title from the sovereign. Haring v. Shelton, 103 Tex. 10, 122 S.W. 13 (Tex. 1909). The adverse claimant under the three-year statute of limitations must connect the claim of title to the sovereignty of the soil. Brinkman v. Tinkler, 117 S.W.2d 139 (Tex. Civ. App.-- San Antonio 1938, writ ref’d).

d. Tax Deed in Chain of Title. Tax sale deed in chain of title required

claimant under the three-year statute to show compliance with all prerequisites for a valid sale. Telfener v. Dillard, 70 Tex. 139, 7 S.W. 847 (Tex. 1888). Subject to such requirement, such a deed can constitute color of title under the three-year statute. Anderson v. Shellhammer, 248 F.2d 46 (5th Cir. 1957).

e. Execution Deed. Deed given upon sale under execution will

support a claim of title or color of title under the three-year statute unless shown that the sale was invalid. Kennon v. Miller, 143 S.W. 986 (Tex. Civ. App.--San Antonio 1912, writ ref’d). This case indicates that the record owner has the burden to show the


invalidity of the execution sale, though the tax sale cases above suggest otherwise. Prudence would dictate that the adverse claimant under the three-year statute establish compliance with the prerequisites for the execution sale.

f. Acreage in Excess of Patent. Claimant under three-year statute

failed with respect to acreage in excess of patent. Wadsworth v. Vineyard, 131 S.W. 1171 (Tex. Civ. App. – 1910, writ granted), rev’d on other grounds, 105 Tex. 245, 147 S.W. 560 (1912).

g. Void Deed in Chain of Title. A void deed in the chain of title is

neither title nor color of title. Reynolds v. Farmers & Merchs. Nat’l Bank, 135 S.W.2d 556 (Tex. Civ. App.—Fort Worth 1939) (execution sale one day after return was due); Slaughter v. Qualls, 139 Tex. 340, 162 S.W.2d 671 (Tex. 1942)(foreclosure sale in absence of any default). However, a void deed is admissible into evidence to establish the extent of the claim under the ten-year statute, as discussed below. Sanders v. Word, 110 S.W. 205 (Tex. Civ. App.—Eastland 1908, writ ref’d).

h. Void Judgment in the Chain of Title. A void judgment does not

constitute color of title. Weaver v. Garrietty, 84 S.W.2d 878 (Tex. Civ. App. 1935, writ ref’d).

i. Fraudulent Transfer in Chain of Title. A deed from husband to

wife alleged to be a transfer in fraud of creditors has been held to constitute title or color of title within the three-year statute. J.R. Watkins Co. v. Gibbs, 66 S.W.2d 355 (Tex. Civ. App.—Austin 1933, no writ); Texas Life Ins. Co. v. Goldberg, 184 S.W.2d 333 (Tex. Civ. App.—Waco 1944, no writ).

j. Estoppel to Claim Title or Color of Title. Adverse claimant who

acquired deed by fraud was estopped to assert title or color of title under the deed as a basis for limitations. Maeberry v. Gayle, 955 S.W.2d 875 (Tex. App.—Corpus Christi 1997, no writ); Barrera v. Ruiz, 308 S.W.2d 578 (Tex. Civ. App.—Fort Worth 1957, no writ).

k. Inadequate Legal Description. Deed in chain of adverse claimant

under the three-year statute must provide a legally sufficient description of the property. Langham v. Gray, 227 S.W. 741 (Tex. Civ. App. —Beaumont 1920, no writ).

l. Undivided Interest in Property. Adverse claimant may rely on

three-year statute even if adverse claimant’s deed conveys only an undivided interest. Cole v. Grigsby, 35 S.W. 680 (Tex. Civ. App. 1894, aff’d, 89 Tex. 223, 35 S.W. 792 (1896).


m. Deed Granting Only Easement or Right-of-Way. Where the deed

only conveys a right-of-way, claim cannot be made under the three-year statute, or the five-year statute or 25-year statute applicable to parties claiming under a recorded deed. Rio Bravo Oil Co. Hunt Petroleum Corp., 439 S.W.2d 853 (Tex. Civ. App.—Tyler 1969, writ granted), rev’d, 455 S.W.2d 722 (Tex. 1970).

n. Earnest Money Contract As Muniment of Title. One case has

recognized that an earnest money contract may be sufficient to show color of title under the three-year statute, though the claim in this case was ultimately unsuccessful because the vendor did not have authority to enter into the contract. Sebesta v. Daniels, 812 S.W.2d 641 (Tex. App.—Houston [14th Dist.] 1991, writ denied).

o. Voidable IRS Quitclaim Deed. A recent case has held that a

quitclaim deed given by the IRS to the purchaser at a tax sale when the IRS failed to comply with statutory procedures applicable to the sale was not void but only voidable, and the purchaser and subsequent grantees could assert three-year statute as a bar to the taxpayers’ quiet title action. Johnston v. Bennett, 2004 WL 1232610 (Tex. App.—Houston [1st Dist.] 2004, no pet.).

5. Examples of Cases To Which Three-Year Statute Does Not Properly

Apply.

a. Inapplicable to Boundary Disputes. The three-year statute of limitations does not apply to a boundary dispute. If area in dispute was not within claimant’s deed, then claimant had neither title nor color of title. If the area of dispute was within claimant’s deed, the claimant had actual paramount title and resort to limitations statute is unnecessary. Shelor v. Humble Oil & Ref. Co. 103 S.W.2d 207 (Tex. Civ. App.—Amarillo 1937, writ dism’d).

b. Inapplicable to Suit to Foreclose Vendor’s Lien. The three-year

statute of limitations does not apply to a suit by the holder of the vendor’s lien to foreclose against the purchasers of the property. Ater v. Knight, 218 S.W. 648 (Tex. Civ. App.—Amarillo 1920, writ ref’d).

c. Dispute Between Heirs at Law and Devisee Under Will. Heirs at

law of testator could not rely upon the three-year statute as a bar to suit by the devisee of the land taking under the testator’s will. Howth v. Farrar, 94 F.2d 654 (5th Cir. 1938), cert. denied, 305 U.S. 599, 59 S.Ct. 75, 83 L.Ed. 380 (1938). This case recognizes


that the heirs at law do not claim under color of title within the meaning of the three-year statute.

d. Dispute Between Widow Life Tenant and Children Over Separate

Property. The three-year statute does not bar a claim to enforce the widow’s life estate in her deceased husband’s separate property in the possession of the deceased husband’s children and heirs. Cockrell v. Curtis, 83 Tex. 105, 18 S.W. 436 (Tex. 1892).

6. Three-Year Statute As Bar to Enforcement of Judgment Lien. The

three-year statute of limitations has been recognized as a bar to enforcement of a judgment lien.

a. Shaw v. Ball, 23 S.W.2d 291, 292-3 (Tex. Com. App. 1930,

holding approved)(reasoning that the property owner “acquires an adverse title, separate, distinct, and independent from the title formerly held by the judgment debtor, and with which such purchaser, under his newly acquired title, is no longer in privity, and thereby frees and discharges the land of the lien of a judgment creditor created by the filing and recording of an abstract of judgment against the judgment debtor prior to the sale of the land by the judgment debtor.”).

b. Texas Sand Co. v. Shield, 381 S.W.2d 48 (Tex. 1964)(claim under

three-year statute unsuccessful, but opinion appears to assume it is available if proven).

c. Jones v. Harrison, 773 S.W.2d 759 (Tex. App.—San Antonio

1989, writ denied)(three-year statute held to bar enforcement of judgment lien).

d. Walker v. Geer, 99 S.W.3d 244 (Tex. App.—Eastland 2003, no

writ) (three-year statute held to bar enforcement of judgment lien).

7. No Requirement of Cultivation, Use, or Enjoyment of the Property. Unlike the five-year statute and the ten-year statute, the adverse claimant under the three-year statute need not establish any cultivation, use, or enjoyment of the property.

8. No Requirement to Show Payment of Taxes. Unlike an adverse

claimant under the five-year statute, the adverse claimant under the three-year statute is not required to show any payment of taxes to sustain a claim of limitations title. The three-year statute contains no such requirement. Herbert v. Smith, 183 S.W.2d 191 (Tex. Civ. App.—Austin 1944, writ ref’d).


V. THE FIVE-YEAR STATUTE OF LIMITATIONS – CPRC § 16.025

A. Statutory Requirements. The five-year statute of limitations contained in CPRC § 16.025 provides that “[a] person must bring suit not later than five years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who:

(1) cultivates, uses, or enjoys the property; (2) pays applicable taxes on the property; and (3) claims the property under a duly registered deed.” B. Peaceable And Adverse Possession. As with the other limitations statutes

applicable to actions to recover real property, the adverse claimant under the five-year statute must show “peaceable and adverse possession” for the five-year period required by the statute.

C. Cultivates, Uses, or Enjoys the Property. The five-year statute of limitations, as

does the ten-year statute, requires that the adverse claimant cultivate, use, or enjoy the property for the requisite five-year period.

1. Requirements Are Alternatives. A showing of either of the three—

cultivation, use, or enjoyment—is sufficient, and it is not necessary for the adverse claimant to establish all three. Hirsch v. Patton, 108 S.W. 1015 (Tex. Civ. App. 1908).

2. No Extraordinary Use Required. As stated in Short v. Lyness, 572

S.W.2d 116 (Tex. Civ. App.-Waco 1978, no writ): “The use and enjoyment of land necessary to make its possession adverse under our limitation statutes is only that to which the land is adaptable and capable of being used.” See also Wallis v. Long, 75 S.W.2d 138, 142 (Tex. Civ. App.—Galveston 1934, writ ref'd).

3. Fact Specific. The issue of sufficient use is fact specific. For a

collection of some of the cases, see the listing of assorted cases involving different factual scenarios in Parker v. McGinnes, 842 S.W.2d 357, 360 (Tex. App.—Houston [1st Dist.] 1992, writ denied).

D. Pays Applicable Taxes on the Property. The five-year statute requires that the

adverse claimant have paid the taxes on the property for each year during the required five-year period.

1. Must Pay Each Year During Five-Year Period. The failure to pay taxes

in any one year in the five-year period is fatal to the claim under the five-year statute. Murphy v. Welder, 58 Tex. 235 (Tex. 1883).


2. Must Pay Prior to Delinquency. The taxes must be paid prior to

delinquency. Houston Oil Co. of Texas v. Jordan, 231 S.W. 320 (Tex. 1921); Katz v. Rodriguez, 563 S.W.2d 627 (Tex. Civ. App.—Corpus Christi 1977, writ ref’d n.r.e.).

3. Taxes Must Be Paid on the Entire Property. The taxes must be paid on

the entire property described in the deed under which the adverse claimant holds. Starr v. Dunbar, 69 S.W.2d 816 (Tex. Civ. App.-Texarkana 1934, writ ref’d)(payment of taxes on only 70 acres out of 105 acres described in deed failed to satisfy the statute).

a. Payment Obligation Limited to Acreage Described in Deed. If,

however, the property comprises more acres than actually called for in the deed, then payment based upon the number of acres called for in the deed is sufficient. Starkey v. McNay, 103 S.W.2d 1051 (Tex. Civ. App.-Galveston 1937, no writ)(rule applied in this case even though adverse claimant continued tax payments based on lesser acreage after learning of the discrepancy).

E. Claims Under A Duly Registered Deed. The five-year statute requires that the

adverse claimant hold under a registered deed.

1. Recorded Deed and Possession Must Be Continuous During the Same Period. Adverse possession prior to the recording of the deed under which the adverse claimant holds is not included in the calculation of the five-year period. Harvey v. Cummings, 68 Tex. 599, 5 S.W. 513 (Tex. 1887).

a. Recording of deed by party who has been permissively in

possession will not start the running of the five-year statute. Keels v. Keels, 427 S.W.2d 913 (Tex. Civ. App.-Tyler 1968, no writ)(adverse claimant must repudiate tenancy to the actual owner).

2. Deed Need Not Convey Any Actual Title. For the purposes of the five-

year statute it is not necessary that the deed under which the adverse claimant holds actually convey any title to the property, and it is sufficient that the deed purports to convey the property and contains the essential requirements for a deed. Rosborough v. Cook, 108 Tex. 364, 194 S.W. 131 (Tex. 1917).

3. Deed Must Purport to Convey the Property and Not Just Grantor’s

Interest in the Property. To qualify under the five-year statute, the deed must purport to convey the property and not just the grantor’s interest in the property, so that a quitclaim deed will not satisfy the statutory


requirement of a deed. Porter v. Wilson, 389 S.W.2d 650 (Tex. 1965); Jackson v. Heath, 325 S.W.2d 453 (Tex. Civ. App.—San Antonio 1959, no writ).

a. Distinction Between Deed and Quitclaim. The distinction between

a deed to land and a quitclaim deed was explained in Cook v. Smith, 107 Tex. 119, 174 S.W. 1094 (Tex. 1915): “The character of an instrument, as constituting a deed to land or merely a quitclaim deed, is to be determined according to whether it assumes to convey the property described and upon its face has that effect, or merely professes to convey the grantor's title to the property. If, according to the face of the instrument, its operation is to convey the property itself, it is a deed. If, on the other hand, it purports to convey no more than the title of the grantor, it is only a quitclaim deed.”

4. Deed Must Contain an Adequate Legal Description of the Property. To

qualify as a deed under the five-year statute, the deed must contain an adequate legal description of the property, and an inadequate legal description may not be supplemented by parol evidence. Cook v. Olive, 83 Tex. 559, 19 S.W. 161 (Tex. 1892).

a. Deed Must Within Itself Contain Adequate Description. Because

the function of the deed under the five-year statute is to provide notice of the claim, the deed under which the adverse claimant holds must itself contain an adequate legal description, and resort may not be made to other instruments in the record to supplement an inadequate description. Young v. Trahan, 97 S.W. 147 (Tex. Civ. App. 1906, writ ref’d).

5. Claim Limited to Property Conveyed in Recorded Deed. The adverse

claimant under the five-year statute is limited to the property or the interest in property conveyed in the recorded deed under which he claims. Porter v. Wilson, 389 S.W.2d 650 (Tex. 1965).

6. Exception to Rule of Constructive Possession. Peden v. Crenshaw, 98

Tex. 365, 84 S.W. 362, 370-71 (Tex. 1904)(decided under the five-year statute): “The general rule is that one who receives a conveyance to a tract of land, and goes into and holds possession of a part, is deemed to be in constructive possession of the whole tract, as described in his deed. But there is a well-defined exception to this rule. The real owner of a tract of land, who is in possession of a part of his land, has constructive possession of the whole tract. So that there can be no constructive possession by an adverse claimant of the part not occupied by him. As against him, the possession of such adverse claimant, in order to be effective, must be actual.”


7. Void Deed Will Not Satisfy the Statute. A void deed will not satisfy the

five-year statute. Schleicher v. Gatlin, 85 Tex. 270, 20 S.W. 120 (Tex. 1892)(tax deed void on its face).

a. Must Be Void on Its Face. A later Texas Supreme Court case has

held that unless the deed is forged or void on its face, the deed can be used by the adverse claimant to satisfy the five-year statute. Eckert v. Wendel, 120 Tex. 618, 40 S.W.2d 796 (Tex. 1931).

VI. THE TEN-YEAR STATUTE OF LIMITATIONS – CPRC § 16.026

A. Statutory Requirements. The ten-year statute of limitations contained in CPRC §

16.026(a) provides that “[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. No Requirement of Title or Color of Title. The ten-year statute of limitations

contained in CPRC § 16.026 imposes no requirement that the adverse claimant show title or color of title as required by a claimant under the three-year statute of limitations.

C. No Requirement of Recorded Deed. CPRC § 16.026 contains no requirement that

the adverse claimant hold under a recorded deed as required by a claimant under the five-year statute of limitations. Under CPRC § 16.026 the adverse claimant is not required to have any claim to record title or hold any evidence of record title, and the claim is founded solely upon possession and use.

D. No Requirement of Payment of Taxes. The ten-year statute contains no

requirement that the adverse claimant show any payment of taxes on the property.

1. Payment of taxes is, however, competent evidence of adverse possession, but it cannot alone establish adverse possession under the ten-year statute. Rhodes v. Cahill, 802 S.W.2d 643, 646 (Tex. 1990).

E. Cultivation, Use, or Enjoyment of the Property is Required. Like the adverse

claimant under the five-year statute of limitations, the adverse claimant under the ten-year statute is required to show cultivation, use, or enjoyment of the property for the requisite statutory limitations period. See discussion above relating to the five-year statute of limitations.

F. Character of Required Possession and Use Under the Ten-Year Statute. While the

same statutory definition of “adverse possession” applies to all of the limitations statutes, the cases at least suggest a heightened standard for the adverse claimant when the claim is based only upon possession and use. For example, in Satterwhite v. Rosser, 61 Tex. 166, 171 (Tex. 1884), the Texas Supreme Court


addressed the standard required for the adverse claimant who relies only upon “naked possession” as follows: “It is well settled, that, where a party relies upon naked possession alone as the foundation for his adverse 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. It has been said that such possession must not only be actual, but also visible, continuous, notorious, distinct, hostile (i.e., adverse), and of such a character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant.”

G. Extent of the Claim Under the Ten-Year Statute. The ten-year statute of

limitations applicable to actions to recover real property contains special provisions governing the proper extent of the adverse claim depending upon whether the adverse claimant is holding under “a duly registered deed” or not.

1. Without a Title Instrument. CPRC § 16.026(b) states that: “Without a

title instrument, peaceable and adverse possession is limited in this section to 160 acres, including improvements, unless the number of acres actually enclosed exceeds 160. If the number of enclosed acres exceeds 160, peaceable and adverse possession extends to the real property actually enclosed.”

a. Statute Intended As a Limitation on the Claim. The statute is

intended as a limitation on the extent of the claim in the absence of a deed. As stated in Williams v. Texas & N.O.R. Co., 114 S.W. 877 (Tex. Civ. App. 1908, writ dism’d): “[T]he rule is generally recognized, that when the defendant is in actual adverse possession of a few acres, he would be authorized, under the statute, to recover 160 acres, but that construction of the statute only arises in a case in which there is an assertion and claim to the 160 acres.”

b. Constructive Possession Still Applies. Principles of constructive

possession do still apply in the absence of a title instrument. For example, use of a platted lot for residential purposes would extend the claim to boundaries of the lot as platted. Monroe v. Lyons, 189 S.W.2d 90 (Tex. Civ. App.—Texarkana 1945, writ ref’d w.o.m.)

2. With A Duly Registered Deed. The ten-year statute in CPRC § 16.026(c)

states that: “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.”

a. Constructive Possession Extends to Deed Boundaries. Constructive

possession by the adverse claimant thus extends to lands within the boundaries in the deed.


b. Exception for Boundary Conflict With Record Owner. It was early held, however, that this rule does not apply against the record owner where there is a partial boundary conflict unless the actual possession of the adverse claimant extends to that part of his deed within the boundaries of the property owned by the competing record owner. Whitehead v. Foley, 28 Tex. 268 (Tex. 1866); Parker v. Baines, 65 Tex. 606, 1886 WL 4722 (Tex. 1886); Turner v. Moore, 81 Tex. 209, 16 S.W. 929 (Tex. 1891).

VII. THE 25-YEAR STATUTE (WITHOUT A RECORDED DEED) – CPRC § 16.027

A. Statutory Requirements. The 25-year statute of limitations contained in CPRC §

16.027 provides that “[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 in peaceable and adverse possession by another who cultivates, uses, or enjoys the property.”

VIII. THE 25-YEAR STATUTE (WITH A RECORDED DEED) – CPRC § 16.028

A. Statutory Requirements. The 25-year statute contained in CPRC § 16.028(a)

provides that “[a] person, regardless of whether the person is or has been under a legal disability, may not maintain an action for the recovery of real property held for 25 years before the commencement of the action in peaceable and adverse possession by another 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.”

B. Extent of the Claim. CPRC § 16.028(b) provides as follows: “Adverse possession

of any part of the real property held under a recorded deed or other recorded instrument that purports to convey the property extends to and includes all of the property described in the instrument, even though the instrument is void on its face or in fact.”

C. Effect of Disability. CPRC § 16.028(c) provides as follows: “A person who holds

real property and claims title under this section has a good and marketable title to the property regardless of a disability arising at any time in the adverse claimant or a person claiming under the adverse claimant.”

IX. EVIDENCE OF TITLE TO LAND BY LIMITATIONS – CPRC § 16.029

A. Prima Facie Evidence That Title Has Passed. CPRC § 16.029(a) provides as

follows: “In a suit involving title to real property that is not claimed by this state, it is prima facie evidence that the title to the property has passed from the person holding apparent record title to an opposing party if its is shown that:


(1) for one or more years during the 25 years preceding the filing of the suit the person holding apparent record title to the property did not exercise dominion over or pay taxes on the property; and

(2) during that period the opposing parties and those whose estate they

own have openly exercised dominion over and have asserted a claim to the land and have paid taxes on it annually before becoming delinquent for as long as 25 years.”

B. Limitation on Effect of CPRC § 16.029. CPRC § 16.029(b) provides as follows:

“This section does not affect a statute of limitations, a right to prove title by circumstantial evidence under the case law of this state, or a suit between a trustee and a beneficiary of a trust.”

X. STATUTORY PROVISIONS RELATING TO ENCLOSED LAND – CPRC § 16.031

A. CPRC § 16.031(a) provides as follows: “A tract of land that is owned by one

person and that is entirely surrounded by land owned, claimed, or fenced by another is not considered enclosed by a fence that encloses any part of the surrounding land.”

B. CPRC § 16.031(b) provides as follows: “Possession of the interior tract by the

owner or claimant of the surrounding land is not peaceable and adverse possession as described by Section 16.026 unless:

(1) the interior tract is separated from the surrounding land by a fence; or (2) at least one-tenth of the interior tract is cultivated and used for agricultural

purposes or is used for manufacturing purposes.”

XI. STATUTORY PROVISIONS RELATING TO ADJACENT LAND – CPRC § 16.032

A. CPRC § 16.032 provides as follows: “Possession of land that belongs to another by a person owning or claiming 5,000 or more fenced acres that adjoin the land is not peaceable and adverse possession as described by Section 16.026 unless:

(1) the land is separated from the adjacent enclosed land by a substantial

fence; (2) at least one-tenth of the land is cultivated and used for agricultural

purposes or used for manufacturing purposes; or

(3) there is actual possession of the land.”


XII. RECOVERY OF ATTORNEY’S FEES – CPRC § 16.034

A. Limited Statutory Right to Recovery of Attorney’s Fees. CPRC § 16.034(a) provides that: “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.”

B. Requirement of Written Demand. CPRC § 16.034(b) provides that: “To recover

attorney’s fees, the person seeking possession must give the person unlawfully in possession a written demand for that person to vacate the premises. The demand must be given by registered or certified mail at least 10 days before filing the claim for recovery of possession.”

C. Contents of the Written Demand. CPRC § 16.034(c) provides that: “The demand

must state that if the person unlawfully in possession does not vacate the premises within 10 days and a claim is filed by the person seeking possession, the court may enter a judgment against the person unlawfully in possession for costs and attorney’s fees in an amount determined by the court to be reasonable.”

XIII. DECISION OF THE TEXAS SUPREME COURT IN MARTIN V. AMERMAN

A. Background. The Texas Property Code provides in § 22.001 that “[a] trespass to

try title action is the method of determining title to lands, tenements, or other real property.” TEX. PROP. CODE § 22.01.

1. No provision is made in Chapter 22 of the Property Code for any

recovery of attorney’s fees by the prevailing party in a statutory trespass to try title suit.

2. As discussed above, in a suit between the record owner and the adverse

claimant CPRC § 16.034(a) only provides for recovery of attorney’s fees to the prevailing party who ousts another from unlawful possession of real property.

B. Use of Declaratory Judgments Act. Faced with this limitation on the right to

recover attorney’s fees, claimants have resorted to the Texas Declaratory Judgments Act, which generally allows an award of attorney’s fees as the court deems equitable and just. TEX. CIV. PRAC. & REM. CODE § 27.009.

C. Texas Supreme Court Dicta in Brainard v. State. In a 1999 decision, the Texas

Supreme Court stated in dicta that a declaratory judgment “is certainly one way” to resolve a boundary dispute. Brainard v. State, 12 S.W.3d 6 (Tex. 1999).


1. Some courts of appeals followed suit, allowing use of the Declaratory Judgments Acts as a vehicle to resolve boundary disputes. Goebel v. Brandley, 76 S.W3d 652 (Tex. App.—Houston [14th Dist.] 2002, no pet.); Tarrant County v. Denton County, 87 S.W.3d 159 (Tex. App.—Fort Worth 2002, pet. denied).

2. The 2002 decision of the Texas Supreme Court in John G. & Marie

Stella Kenedy Mem’l Found. V. Dewhurst, 90 S.W.3d 268, 289 (Tex. 2002), further confused the issue in holding that the Texas Declaratory Judgments Act was not available to resolve a dispute over a shoreline boundary.

D. 2004 Decision of Texas Supreme Court in Martin v. Amerman.

1. Facts of the Case. Mr. and Mrs. Martin purchased a home on a 2.005-acre tract. They later erected a chain link fence on what they believed was their eastern boundary line. Subsequently Mr. and Mrs. Amerman purchased an adjacent 1.255-acre tract on the east. A dispute then arose over the correct location of the boundary line between the two tracts based upon two conflicting surveys. Mr. and Mrs. Amerman tore down the fence erected by Mr. and Mrs. Martin. Mr. and Mrs. Martin then filed suit, ultimately pursuing a claim for a judgment declaring the proper boundary line and to quiet title.

2. Result in the Trial Court. The jury found that the Martins’ surveyor had

correctly located the boundary line. The trial court rendered judgment on this verdict and awarded attorney’s fees to Mr. and Mrs. Martin under the Texas Declaratory Judgments Act.

3. Result in the Court of Appeals. The court of appeals held that the suit

by Mr. and Mrs. Martin was in the nature of a trespass to try title action in which attorney’s fees were not recoverable. In response to a contention by the Amermans that the Martins had not complied with the technical pleading and proof requirements for a statutory trespass to try title action, the court of appeals held that the Amermans had waived this complaint by not raising it in the trial court. Except for the award of attorney’s fees, the judgment of the trial court was affirmed. 83 S.W.3d at 864.

4. Holding of the Texas Supreme Court. In Martin v. Amerman, 133

S.W.3d 262, 267 (Tex. 2004), the Texas Supreme Court held that:

a. A statutory trespass to try title action under Chapter 22 of the Texas Property Code is the exclusive method to determine a boundary dispute in Texas, and a declaratory judgment action may


not be used as an alternative method of determining the boundary dispute.

b. Therefore, the prevailing party in the boundary dispute is not

entitled to recover attorney’s fees.

E. Special Rules Applicable to Boundary Disputes. In a 1981 decision, the Texas Supreme Court confirmed that the technical pleading and proof rules applicable to a statutory trespass to try title suit are relaxed in a true boundary dispute when the sole dispute between the parties involves the location of a boundary. Plumb v. Stuessy, 617 S.W.2d 667, 669 (Tex. 1981).

1. The Supreme Court in Martin v. Amerman confirmed that “the trespass-

to-try-title action’s more formal proof requirements do not apply in boundary disputes when there would have been no case but for the question of boundary.” 133 S.W.3d at 268.

2. A petition alleging trespass to try title always puts title and possession in

issue. Poth v. Roosth, 146 Tex. 7, 202 S.W.2d 442, 445 (Tex. 1947). To avoid this result in a pure boundary dispute, it is necessary to specially plead that the case is a boundary dispute only. Hunt v. Heaton, 643 S.W.2d 677 (Tex. 1982).

3. The plaintiff in a boundary dispute must present some competent

evidence of title to the disputed property, such as offering into evidence a copy of his recorded deed by which title was acquired. Martin v. Amerman, 133 S.W.3rd at 265; Brownlee v. Sexton, 703 S.W.2d 797 (Tex. App.—Dallas 1986,writ ref’d n.r.e.).

4. Under Texas law, if the plaintiff in a trespass to try title action does not

prove his title, the suit divests him of title and vests the title in the defendant. Knight v. Chicago Corp., 144 Tex. 98, 188 S.W.2d 564 (Tex. 1945). In a boundary dispute, the plaintiff should be careful never to place in issue title to any property other than the specific area affected by the boundary conflict.


TEXAS ADVERSE POSSESSION STATUTES

§ 16.024

3 Year Statute

§ 16.025

5 Year Statute

§ 16.026

10 Year Statute

§ 16.027

25 Year Statute Notwithstanding

Disability

§ 16.028

25 Year Statute Under Recorded

Instrument

Held in Peaceable and Adverse Possession

Required

Required

Required

Required

Required

By Another Who Cultivates, Uses, or Enjoys the Property

Not Required

Required

Required

Required

Not Required

Held by Another Under Title or Color of Title

Required

Not Required

Not Required

Not Required

Not Required

Pays Applicable Taxes on the Property

Not Required

Required

Not Required

Not Required

Not Required

Claims the Property Under a Duly Registered Deed

Not Required

Required

Deed May Not Be Forged or Void on

Its Face

Not Required

May Claim Under Recorded Deed to

Extent of Described Land

Not Required

Required

Deed May Be Void on Its Face

or In Fact

Holds In Good Faith

Not Required

Not Required

Not Required

Not Required

Required

Disability Tolls the Statute

Yes

Yes

Yes

No

No

Without a Title Instrument - Limited to 160 Acres Unless Actual Enclosure Is Greater

Not Applicable

Not Applicable

Applies

§ 16.026(b)

Not Applicable

Not Applicable

Title Extends to Boundaries Specified in Deed

Applies

Applies

Applies

§ 16.026(c)

Not Applicable

No Provision Comparable to

§ 16.026(b)

Applies

§ 16.028(b)


adverse possession revisited - tlta

Documents