Opinion
No. 05-10-00116-CV
Opinion Filed April 7, 2011.
On Appeal from the 366th Judicial District Court Collin County, Texas, Trial Court Cause No. 366-01154-2008.
Before Justices MOSELEY, BRIDGES, and O'NEILL.
MEMORANDUM OPINION
Appellants Randy G. Bailey and Deanna Bailey appeal a judgment determining the property line between their tract of property and a tract owned by appellee Johnny D. Gillard. In four issues, appellants generally contend (1) the trial court erred in entering a judgment in favor of Gillard because he did not prove the superiority of his title, (2) the trial court did not make sufficient findings to support its judgment, and (3) the evidence established as a matter of law appellants were entitled to judgment confirming their superior title to the land in question. For the following reasons, we affirm the trial court's judgment.
Appellants Randy G. Bailey and Deanna Bailey and appellee Johnny G. Gillard are neighboring landowners. Gillard is also Deanna's uncle. Gillard had purchased his tract of land in 2005 from Barbara Taylor who, along with her late husband Patrick Taylor, had owned the land since the early 1970s. When they purchased the land, they did not have a survey done, but relied on what the prior owner had told them in determining the property line. Based on the prior owner's representation, the Taylors put up a fence at the property line between their property and Deana's grandfather's property. The Taylors believed the land inside the fence line was theirs and they asserted ownership over this area. On one occasion, Deanna's uncle had parked a trailer house over this line and they asked the uncle to move it. He complied. The Taylors also paid property taxes on this area. Appellants purchased their property from Deanna's grandfather in 1986. When they did so, they believed the Taylors' fence was the property line and never disputed the Taylors' ownership of this land.
In 2006 or 2007, a year or two after Gillard purchased the land from the Taylors, he took the fence down. He did so because it was old and worn and he wanted to allow appellants to walk through his property to visit other family members. Deanna agreed the reason Gillard took the fence down was to make it easier for her to visit family. After the fence was removed, both Gillard and appellants continued to treat the former fence line as the property line. However, on occasion, Gillard did permit appellants and other family members to use the land to play football.
In 2008, appellants obtained a survey of their property for the purpose of getting a mortgage to build a house on the property. When appellants obtained their survey, they discovered a problem with the deeds. Specifically, appellants' deed showed they owned some of the land across the fence line. A dispute about the property line then arose. Gillard obtained his own survey and discovered the property description in his deed was defective. The two deeds were inconsistent and neither matched the "occupancy" on the ground.
Gillard filed a declaratory judgment action asking the trial court to determine the boundary between his and appellants' property. Appellants counterclaimed for a trespass to try title. Following a trial before the court, the trial court entered a judgment for Gillard. In its findings of fact and conclusions of law, the trial court found the legal descriptions of the parties' property did not match the actual lines of occupation that had been used on the ground for many years. The trial court also found the fence line had been treated as the property line by the parties and their predecessors. The trial court concluded that the true boundary between the lots was the line that was considered to be the boundary before appellants obtained the survey.
Appellants first two issues are interrelated. In their first issue, appellants assert the trial court could not enter a declaratory judgment in Gillard's favor unless he established the superiority of his title under one of the means set forth in the Texas Supreme Court's Land v. Turner, 377 S.W.2d 181 (Tex. 1964) opinion. In their second issue, appellants assert the trial court erred in entering a declaratory judgment in Gilard's favor because he did not prove superiority of his title pursuant to Land.
Under section 22.001 of the property code, a trespass to try title action is the method for determining title to real property. Tex. Prop. Code Ann. § 22.001 (West 2000). However, notwithstanding section 22.001, a person interested under a deed or other writing may have determined any question of construction or validity arising under the deed or written instrument if the sole issue concerning title to real property is the boundary line between adjoining properties. See Tex. Civ. Prac. Rem. Code Ann. § 37.004 (West 2008).
Appellants did bring a trespass to try title action in the trial court, but Gillard brought only a declaratory judgment action. When the suit does not involve the construction or validity of deeds or other documents of title, the suit is not one for declaratory judgment. See Ramsey v. Grizzle, 313 S.W.3d 498, 503 (Tex. App.-Texarkana 2010, no pet.). It is apparent from a review of the record that the trial court's judgment is not based on any of the deeds or written instruments presented to it, but rather a theory of title by limitations, or adverse possession. Appellants do not complain of the vehicle Gillard used to prove his claim; they complain only that Gillard was required to, but did not, prove the superiority of his title. Therefore, we will now turn to whether Gillard proved his title to the property. See Ramzey, 313 S.W.3d at 540.
One means of proving title to real property is by proving title by limitations based upon ten years of adverse possession. See Sani v. Powell, 153 S.W.3d 736, 748 (Tex. App.-Dallas 2005, pet. denied); Jordan v. Bustamante, 158 S.W.3d 29, 43 (Tex. App.-Houston [14th Dist.] 2005, pet. denied). Adverse possession is the "actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person." Tex. Civ. Prac. Rem. Code Ann. § 16.021(a) (West 2002). To prove adverse possession, a claimant must establish six elements: (1) actual possession of the disputed property, (2) that is open and notorious, (3) that is peaceable, (4) under a claim of right, (5) that is adverse or hostile to the claim of the owner, and (6) consistent and continuous for the duration of the statutory period. Glover v. Union Pac. R.R., 187 S.W.3d 201, 213 (Tex. App.-Texarkana 2006, pet. denied); see also Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990).
The only element of adverse possession that appellants attack on appeal is whether Gillard showed his possession, and the Taylors' possession before him, was adverse or hostile. According to appellants, Gillard failed to make this showing because both Gillard and the Taylors believed they owned the land pursuant to their deeds. Possession of land in the mistaken belief that one owns or has a right in it will not give rise to an adverse possession claim unless that possession is accompanied by an intent to appropriate. See Ellis v. Jansing, 620 S.W.2d 569, 571-72 (Tex. 1981). However, it is unnecessary to show the Taylors or Gillard had the intent to dispossess a rightful owner, but only that they intend to possess the land to the exclusion of others. See Tran v. Macha, 213 S.W.3d 913, 915 (Tex. 2006). Clearly, when the Taylors put the fence up, they intended to claim ownership to the tract now in dispute to the exclusion of all others. The Taylors and Gillards claimed open and exclusive ownership of the land for in excess of ten years. We conclude the evidence is sufficient to show Gillard's title to the property by limitations. We resolve the first and second issues against appellants.
Because Gillard and the Taylors are in privity, the Taylors' prior adverse possession tacks on to Gillard's. Tex. Civ. Prac. Rem. Code Ann. § 16.023 (West 2002).
The fence stood for at least twenty years before Gillard took it down. There has been no argument or suggestion he abandoned any claim to the property when he did so.
In their third issue, appellants contend the trial court's findings of fact and conclusions of law do not contain findings necessary to support the final judgment. In their fourth issue, appellants contend their evidence established as a matter of law that they are entitled to judgment confirming their title to the land in dispute. Appellants cite no legal authority under either issue. Rule 38.1(h) of the rules of appellate procedure provides that a brief to this Court shall contain, among other things, a clear and concise argument for the contention made with appropriate citations to authorities and to the record. See Tex. R. App. P. 38.1(h); Sharpe v. Roman Catholic Diocese of Dallas, 97 S.W.3d 791, 797 (Tex. App.-Dallas 2003, pet. ref'd); Kang v. Hyundai Corp., 992 S.W.2d 499, 503 (Tex. App.-Dallas 1999, no pet.). Here, appellants have provided no substantive legal analysis or argument and have cited no authority to support their claimed errors. We will not make appellants arguments for them. We conclude these issues are inadequately briefed and present nothing to review. Sharpe, 97 S.W.3d at 797; Kang, 992 S.W.2d at 503. We resolve the third and fourth issues against appellants.
We affirm the trial court's judgment.