A recent case from the Waco Court of Appeals deals with a question about which I am often asked: If a fence is built off the property line but has been there for decades and the non-title holding owner grazes the property as his own, does the property ownership change? The court’s opinion offers a great analysis of the various arguments landowners may make in this type of case and how such arguments are analyzed.
In 2014, the Parkers purchased two pieces of property from Dick Taylor: a 102 acre property tract and a 20 acre property, which were separated by a fence. It is the 20 acres at issue in this case.
Mr. Weber owned 560 acres on the north, east, and west sides of the 20 acres purchased by the Parkers. The boundary line between the disputed property and Mr. Weber was a creek, which forms the north, east, and west boundary of the 20 acres. There was a fence along the south side of the 20 acres. When Mr. Weber’s father bought the land, and when Mr. Weber bought it from him, they assumed they were buying everything under fence, including the 20 acres. Mr. Weber believes the fence was originally built in 1903, although he “rebuilt” it in 1959.
For decades, Mr. Weber used the 20 acres as pasture for grazing goats and cattle. When the Parkers began to work on the 20 acres, Mr. Weber sued claiming ownership to the 20 acres based upon adverse possession.
At trial, the court awarded Mr. Weber title to the property, finding that he satisfied the elements of proving adverse possession under Texas law. The Parkers filed this appeal.
Adverse Possession Requirements
The doctrine of adverse possession allows a person to claim and obtain title to real property presently owned by another. It is also commonly known as “squatter’s rights.” Essentially, it allows a person who possesses and uses another’s land without permission to eventually become owner if a number of requirements are met. Keep in mind, succeeding on a claim of adverse possession is very difficult.
In order to obtain title to land by adverse possession, the party claiming adverse possession must show “actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person” for a certain length of time provided by statute. See Texas Civil Practices and Remedies Code Section 16.021(1). In order to prove adverse possession under the 10-year statute of limitations period (which was the one at issue in this case), the claimant must prove: “property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property” and “actual and visible appropriation must exist during the entire 10-year period.” See Texas Civil Practice and Remedies Code Section 16.026. Put another way, a claimant must prove (1) he adversely possessed the property under “claim of right” (meaning with intent to claim ownership); (2) peaceable (meaning continuous possession not interrupted by suit to recover the property); (3) open and notorious “use, cultivation or enjoyment” of the property such that an owner would be put on notice; and (4) continuous throughout the 10-year limitations period.
Although not at issue in this case, there are a couple of important points to note. First, it is important to note that a person who uses property with permission cannot obtain title by adverse possession, as the claim must be hostile to the actual owner. Second, possession must be continuous during the limitations period. For example, a farmer who used land for over twenty years, but allowed it to lie fallow every fourth year could not establish adverse possession. See Parker v. McGinnes, 842 S.W.2d 357 (Tex. Ct. App. – Houston 1992). Third, under the 10-year statute of limitations, the payment of property taxes for the 10-year period is not sufficient to prove adverse possession. See Rhodes v. Cahill, 802 S.W.2d 643 (Tex. 1990).
Appellate Court Opinion
The Waco Court of Appeals reversed the trial court, finding that Mr. Weber failed to prove adverse possession. Thus, the 20 acres remains the property of the Parkers. [Read full opinion here.]
Casual Fence v. Designed Enclosure
First, the court held that the fence on the southern edge of the 20 acres was a causal fence. Adverse possession recognizes two kinds of fences: casual fences and designed enclosures. A person who argues that they grazed their cattle within the fenced property must prove that the fencing was designated enclosure in order to succeed on an adverse possession claim. “When a claimant relied on grazing to acquire limitation title, the land must be enclosed to give evidence that it was designedly enclosed and that the claimant is asserting a claim hostile to the true owner.” See Parker v. Gaines, 842 S.W.2d 357 (Tex. Ct. App. – Houston 1992). If the disputed tract of land has been enclosed with other land, especially when the other land is owned by the claimant, the enclosure is casual. Further, if a fence existed before the party seeking adverse possession took possession of the land, and the party fails to prove the purpose for which the fence was built, it is a casual fence. A casual fence may be converted into a designed enclosure if there is evidence of substantial modification. Merely repairing or maintaining casual fences–even for the purposes of keeping animals in–does not convert a casual fence to an enclosure. For example, where a party converted a 3-strand barbed wire fence into a net fence and put in all new posts to ensure it would hold sheep, substantial modification occurred and the fence became a designed enclosure. See McDonald v. Weinacht, 465 S.W.2d 136, 144 (Tex. 1971). Conversely, where a party replaced the barbed wire and posts of the original fence, the nature was not completely changed and it remained a casual fence. See Mendoza v. Ramirez, 336 S.W.3d 321, 329 (Tex. Ct. App. – El Paso 2010).
Here, Mr. Weber offered no proof as to who built the fence or for what purpose it was built in 1903. Although Mr. Weber claimed to have “rebuilt” the fence in 1959, the court held there was insufficient evidence to convert the casual fence to a designed enclosure. He did not testify as to why he rebuilt the fence, what the fence was made of prior to the rebuilding, or what the new fence was built with. Thus, the court held the fence was not substantially changed and remained a casual enclosure. Further, in this case, the property was not entirely enclosed–it was fenced only on the south side of the property and it did not go up the bluff or down the river in order to attach to any other fence. There was also testimony that animals may have been able to leave the 20 acres through a gap between the bluff and the fence. Thus, no designated enclosure existed.
Second, Weber argued the fact that his cattle used the property for grazing was sufficient use to prove adverse possession. Again, without a fence, mere grazing alone likely would not satisfy adverse possession. For example, in Parker v. McGinnes, the plaintiff had grazed the land some years, cultivated it some years, and did not enclose for grazing. This was found insufficient to put the owner no notice.
In this case, Mr. Weber testified to running 60 cows on the total of the property under fence–his 560 acres and the 20 disputed acres. The court held that the mere fact that his livestock could have crossed onto the 20 acres to graze was insufficient. He did not offer any evidence of how often the cows or goats were on the 20 acres versus the remainder of his property. The fact that livestock could have crossed onto disputed property from an adjoining tract of land is insufficient to be notice of a hostile claim.
Third, Weber argued that he made sufficient “casual use” of the property that a title-holder should have known a hostile claim was being asserted. He claims to have cut brush, rode horses, and otherwise maintained the 20 acres. The court held that such casual activities did not constitute adverse possession, and cited a litany of cases supporting that determination. For example, courts have found that grazing, occasional hunting, and constructing deer blinds and deer feeders was insufficient to prove adverse possession. See Harlow v. Giles, 132 S.W.3d 641 (Tex. Ct. App. – Eastland 2004).
Building and Maintaining Roads
Fourth, Weber claimed that he built and maintained roads on the property. Weber offered no testimony that he had built any of the roads on the property, what they were made of, what they were used for, of whether they were maintained by Weber. Without evidence of these roads being a permanent improvement, adverse possession as not proven.
Note, Mr. Weber has filed a Motion to Reconsider with the court.
First, keep in mind that it is extremely difficult for a claimant to successfully prove the elements of adverse possession. As you see here, there are numerous elements that must be proven, and courts very strictly apply each of these requirements.
Second, if you own land and the fences are not on the property line, it is important to be aware of these rules and consider taking action to avoid an adverse possession claim. This may involve putting something in the deed records either stating that despite the fence, the landowner continues to use the property or granting permission to the claimant to use the land, as adverse possession cannot be maintained if permission exists.
Third, if you are person utilizing someone else’s land with the intent to claim adverse possession, it is important to understand the requirements that must be met in order to successfully make that claim, such as the designated enclosure. As many of the cases cited above, as well as the Wells v. Johnson case from the Amarillo Court of Appeals back in 2014 indicate, succeeding in proving adverse possession when relying on grazing or hunting as the use if very difficult.