Opinion
07-17-00248-CV
08-08-2022
RICHARD HOWARD MCDUFF AND SARA SULLIVAN MCDUFF, INDIVIDUALLY AND AS CO-TRUSTEES OF THE MCDUFF TRUST, THE ERIN ELIZABETH MCDUFF TRUST, AND THE MACKIE ANN MCDUFF TRUST, ERIN ELIZABETH MCDUFF, INDIVIDUALLY AND AS CO-TRUSTEE OF THE ERIN ELIZABETH MCDUFF TRUST, AND MACKIE ANN MCDUFF, INDIVIDUALLY AND AS CO-TRUSTEE OF THE MACKIE ANN MCDUFF TRUST, APPELLANTS v. ANDY BRUMLEY AND SHERI BRUMLEY, APPELLEES
On Appeal from the 46th District Court Wilbarger County, Texas Trial Court No. 27,103, Honorable Stuart Messer, Presiding
Before PARKER and DOSS, JJ., and PIRTLE, S.J.
Patrick A. Pirtle, Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
My apologies to non-digital format readers who might view these photographs in black and white. In orderto show the character of the property and the nature and extent of the alleged adverse possession, this opinion will incorporate numerous trial exhibit photographs because, as they say, "a picture is worth a thousand words."
MEMORANDUM OPINION ON REMAND
LAWRENCE M. DOSS JUSTICE
This appeal concerns a claim of adverse possession and acquisition of title by limitations. Appellees, Andy Brumley and Sheri Brumley, brought a trespass to try title action against Appellants, which include Richard Howard McDuff, Sara Sullivan McDuff, Erin Elizabeth McDuff, and Mackie Ann McDuff, in their individual capacities and as co-trustees of various trusts. The Brumleys allege they have acquired title by limitations to a 345.9 acre tract (the "Disputed Property") located along the Pease River in Wilbarger County near Vernon, Texas. The jury's verdict and the district court's judgment were for the Brumleys. Our original decision in this appeal was reversed and remanded by the Supreme Court of Texas. Now on remand we have considered the McDuffs' two issues challenging the sufficiency of the evidence and claims of jury charge error. We overrule both issues and affirm the judgment of the district court.
Brumley v. McDuff, 616 S.W.3d 826 (Tex. 2021).
Although Appellants attempted to offer into evidence proof of their deed to the property, their offer of proof was denied.
Background
In 1984, Richard and Sara McDuff purchased approximately 533 acres of land from A.M. Hiatt. The conveyance included the Disputed Property. At closing, Hiatt reportedly told Richard and Sara that A.K. Coker occupied the property and should be told to "pack his stuff and leave." During the 1980s, Coker sued Richard in justice court and district court over the Disputed Property. The justice of the peace's decision in favor of Coker was appealed de novo to county court; the matter settled without judgment. The district court case was dismissed for want of prosecution. Richard testified that Coker's animals were removed from the property and that Coker never returned.
In February 2001, the Brumleys purportedly contracted to purchase the Disputed Property via a special warranty deed from J.A. and Beth Coker, the son and daughter-in-law of A.K. J.A. and Beth claimed to have acquired the Disputed Property from A.K. and Aline Coker. A.K. claimed to have held actual and peaceable possession of the Disputed Property since the 1940s.
On the morning of trial, counsel for the Brumleys announced to the trial court that Coker "did not have record title in which to convey to" the Brumleys, and later noted "[the Brumleys are] not claiming record title." The Brumleys therefore pursued an alternative theory alleged as early as their original petition-that since 2001 the Brumleys' "possession, use, and enjoyment of the [Disputed] Property has been actual, open, notorious, exclusive, adverse, and hostile to the claims of all others, including the McDuffs."
The McDuffs articulated their understanding that the Brumleys were pursuing an adverse possession theory more than six months before trial began.
McDuff v. Brumley, 603 S.W.3d 449 (Tex. App.-Amarillo 2019, pet. granted).
Andy Brumley testified that on the day of closing for their attempted purchase of the Disputed Property from the Cokers, Andy contacted Richard at his work to inform him the Brumleys had purchased the Disputed Property from the Cokers; the McDuffs therefore had new neighbors. Richard allegedly responded to Andy that the Cokers had no interest to sell in the Disputed Property. When Andy replied that if there was a problem with the purchase, they needed "to go to the courthouse and get it straightened out," Richard responded he "had been to the courthouse twice, got beat both times and I ain't going back."
Richard testified he recalled the events differently. According to Richard, the conversation with Andy occurred before the Brumley purchase and that he warned against it. He also denied seeing the Brumleys on the Disputed Property, and that the two sides never again discussed the property until the underlying litigation was filed in 2014.
Other evidence presented at trial, however, called into question the accuracy of Richard's memory. For example, testimony also showed that the day after closing, the Brumleys began bulldozing roads on the Disputed Property. Jurors also heard that the Brumleys assessed the dilapidated fences on the Disputed Property and spent two or more months in the fall of 2001 constructing a new perimeter fence around the entire property. The north side of the Disputed Property borders the remainder of the McDuffs' property. It is notable that in this area, where an existing border fence remained, testimony indicates the Brumleys built a second, new fence inside the existing fence line. Two gates on the border fence line were blocked, one by the new Brumley fence, and the other initially blocked by the growth of trees. The Brumleys also constructed cross-fences dividing the interior of the Disputed Property.
Andy and his son, Cody, each testified that every day or every other day from February 2001 to the time of trial, they were physically on the Disputed Property working, farming, caring for livestock, hunting, or recreating. The Brumleys testified that during this time they constructed and maintained roads, built livestock corrals, stored surplus irrigation pipe, installed large mining truck tires used as livestock watering troughs, and stored farm equipment on the Disputed Property. The Brumleys also presented evidence they installed water storage tanks and underground water lines, installed deer blinds, feeders, and deer cameras, and annually planted wheat for grazing out cattle on the land. Andy Brumley told the jury he farmed two spots on the Disputed Property "every year" since 2001. And he testified he kept cattle on the Disputed Property from the day of closing until the time of trial. The Brumleys also offered evidence of participating in government agricultural assistance programs, where they applied for and received federal assistance to construct livestock improvements on the Disputed Property.
In August 2001, an employee or contractor of the McDuffs entered the Disputed Property to clear a road with a tractor. The Brumleys told the man they owned the land and that he must leave. After his departure, the Brumleys' attorney sent the McDuffs a letter describing the Disputed Property and concerning the incident. The letter provided notice to the McDuffs in relevant part as follows:
As you know, the Brumleys are successors in title through J.A. Coker. You will recall certain litigation which occurred in the 1980's and was resolved in favor of the Cokers against you with respect to this property. In addition, Mr. Brumley advises that in the effort to be a good neighbor, he discussed with you the fact of his purchase from Coker.
Therefore, you can understand Mr. Brumley's surprise and disappointment that you had instructed your hired hand to commence the building of a road on this proeprty [sic]. In this process, trespass was committed which we attribute to you, and trees and other property were destroyed along the length of about 150 yards. The trespass and the destruction of trees are damages sustained by the Brumleys in an amount as yet undetermined.
Since it would appear that you are responsible for this trespass and the resulting damages, I am awaiting your reply.
Richard acknowledged receiving the letter and meeting with an attorney, but says he saw no activity on the Disputed Property. The Brumleys also installed about two dozen metal no trespassing signs on the Disputed Property. Along the northern perimeter of the Disputed Property bordering the McDuff land, the no trespassing signs faced the McDuff property.
Richard McDuff also qualified many of his denials by saying he was not on the Disputed Property much.
Brumley v. McDuff, 616 S.W.3d 826 (Tex. 2021).
The jury also had the opportunity to assess the credibility of testimony about the Brumleys sending the McDuffs a criminal trespass warning. Receipt of the warning, which was mailed to the McDuffs' residential address, was signed for by Bobbie McDuff, Richard's mother who lived in their home for eighteen years. At trial, the McDuffs denied receipt or knowledge about the criminal trespass warning. However, Richard also appeared to acknowledge in the following colloquy he indeed received the trespass warning:
Q. How many times, do you think, before this lawsuit was filed have you been down there [on the Disputed Property]?
A. A limited basis. We really didn't have any reason to go, you know.
Q. Okay. And that's what I am trying to help the jury understand. What do you mean when you say a limited basis? Is that -- is that one, two, three, more than a dozen?
A. Maybe half a dozen or something through a portion of time, period of time.
Q. Okay. So since the -- since you got the criminal trespass -- since the Brumleys notified you that they were on the property, you have been down there maybe six times. Is that accurate?
A. Total, yes.
(emphasis added). The jury also heard Richard's testimony about the trespass notice at a later portion of his testimony:
Q. Isn't the truth, Mr. McDuff, you never asked about [a lock discovered on the gate to the Disputed Property] because you-all didn't go down there?
A. Not much. We didn't do any activity there.
Q. And isn't it true that when the Brumleys sent you the criminal trespass letter and the demand letter from their attorney, you and your wife made a conscious decision not to do anything with respect to that property? Isn't that right?
A. We didn't see anything going on at that time with that property, and we talked to [an attorney] about it.
(emphasis added).
Andy Brumley testified that on one occasion in 2003 or 2004, Richard McDuff was burning tumbleweeds on the McDuff property near the border of the Disputed Property. Seeing smoke, Andy and Cody went to investigate, where Andy (standing on the Disputed Property side) had a conversation with Richard (standing on the McDuff side) across the fence. According to Andy, Richard asked, "How far west do you own property?" Andy said he responded, "All the way to the bridge." At trial, Richard denied that the conversation occurred and denied seeing the Brumleys on the Disputed Property.
Dennis Gilchrest, who lived on the adjacent McDuff property from 2001 to 2003, testified he saw the Brumleys on the Disputed Property two to three times per week. Dean Gfeller, who leased all the McDuffs' land for farming from 2004 until 2014 or 2015, said he saw the Brumleys on the Disputed Property "a few times," but never saw the McDuffs. He also testified the McDuffs never offered to lease him the Disputed Property. When asked about his discussions with Richard regarding ownership of the Disputed Property, Gfeller testified Richard had once commented he owned more acreage, "but the [boundary] fence was pretty well what we went by."
Greg English, who cared for Gfeller's cattle on the McDuffs' land, testified he saw the Brumleys use the roads on the Disputed Property (which he characterized during trial as "Andy Brumley's" property). When cattle from the McDuffs' land would crawl through the fence and stray onto the Disputed Property, English sought and obtained permission from Andy or Cody to enter the Disputed Property, or said Andy and Cody "would pen them themselves for me and I would pick them up." According to English, he would contact the Brumleys for access to the land because he thought the Disputed Property was theirs. English found the tree-overgrown gate separating the McDuff land from the Disputed Property and cleared the opening.
It is undisputed that the Brumleys leased the surface of the Disputed Property for mining sand and gravel in 2007; in 2011, they leased the mineral estate. The Brumleys were also paid for seismic surveys performed on the Disputed Property in 2013.
Richard McDuff acknowledged his family "ha[s] been kind of absentee" on the Disputed Property "until we made changes and we started taking the property back." Richard said the family considered the Disputed Property to be a buffer to protect the rest of their property from flood waters. At some point between 2001 and 2005, his daughters picked plums on the Disputed Property, and Richard has gone there to look for deer antlers, firewood, and to look at wildlife. Richard acknowledged that at some unspecified time between 2001 and the time of suit, he discovered a locked gate between the McDuff land and the Disputed Property, but never attempted to determine why.
The McDuffs' daughter, Erin McDuff Oliver, and her husband, Casey, lived on the McDuff property adjoining the Disputed Property from January 2005 until August 2016. Erin testified she was never barred from entering the Disputed Property and went upon that land anytime she desired. Casey testified he entered the Disputed Property whenever he desired; by his estimation that numbered over 20 times since 2001. His activities on the Disputed Property included firing guns, driving an ATV, and hunting deer. He further testified of once driving around the Disputed Property looking for a runaway dog. Casey said his presence on the Disputed Property was never challenged. He denied seeing improvements on the land.
Both the McDuffs and the Brumleys paid ad valorem taxes on the Disputed Property. Richard testified that Andy requested a "settlement" of the Disputed Property in 2014. According to Richard, Andy explained he was working on his estate plan and wanted to clear the issue of title to the Disputed Property. When the McDuffs refused, the underlying litigation ensued.
Analysis
Sufficiency of the Evidence
By their first issue, the McDuffs argue the evidence was legally and factually insufficient to support the Brumleys' assertion, and the jury's verdict, that the Brumleys held the Disputed Property in peaceable and adverse possession for at least ten years. The McDuffs divide the argument among multiple sub-issues.
A party challenging the legal sufficiency of evidence supporting an adverse finding on which it did not bear the burden of proof must show no evidence supports the finding. Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 215 (Tex. 2011). A legal sufficiency or "no evidence" challenge will be sustained if the record demonstrates: (1) a complete absence of evidence of a vital fact; (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). In determining the legal sufficiency of the evidence, we consider all the evidence in the light most favorable to the challenged finding, crediting favorable evidence if a reasonable factfinder could, and disregarding contrary evidence unless a reasonable factfinder could not. City of Keller, 168 S.W.3d at 809.
When considering a factual sufficiency challenge of a finding on which the appellant did not bear the burden of proof, we examine all of the evidence; we set aside the verdict only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). The jury is the exclusive judge of witness credibility and the weight given their testimony. Barnhart v. Morales, 459 S.W.3d 733, 745 (Tex. App.-Houston [14th Dist.] 2015, no pet.). It may believe all, some, or none of the witness testimony. Killion v. Lanehart, 154 S.W.3d 183, 189 (Tex. App.-Amarillo 2004, pet. denied).
The jury was asked the following question, which included a number of instructions:
Did the Brumleys hold the [Disputed] Property in peaceable and adverse possession for at least ten years before July 11, 2014?
"Peaceable possession" means possession of real property that is continuous and is not interrupted by an adverse suit to recover the property.
"Adverse possession" means an actual and visible and open and notorious appropriation of real property, commenced and continued under a claim of right that is inconsistent with and hostile to the claim of another person.
"Claim of right" means an intention to claim the real property as one's own to the exclusion of all others.
A claim of right is hostile only if either (1) it provides notice, either actual or by implication, of a hostile claim of right to the true owner; or (2) the acts performed on the real property, and the use made of the real property, were of such a nature and character that would reasonably notify the true owner of the real property that a hostile claim is being asserted to the property.
For this question, to establish peaceable and adverse possession a claimant must also have cultivated, used, or enjoyed the property.
Answer "Yes" or "No."
The jury unanimously answered, "Yes."
Several terms relevant to the law of adverse possession and the McDuffs' argument on appeal were not defined in the jury charge. When a word is not defined by the charge, jurors may use any reasonable, ordinary, or common understanding of the words used. Dorton v. Chase, 262 S.W.3d 396, 399 (Tex. App.-Waco 2008, pet. denied) (citing Taylor v. Lewis, 553 S.W.2d 153, 159 (Tex. Civ. App.-Amarillo 1977, writ ref'd n.r.e.) (A juror of average intelligence would be presumed to construe the use of a word in its usual and ordinary sense.)).
1. Evidence of Actual, Visible, Hostile, Appropriation
The trial court defined "adverse possession" as "an actual and visible and open and notorious appropriation of real property, commenced and continued under a claim of right that is inconsistent with and hostile to the claim of another person." McDuff begins by complaining of insufficient evidence of the Brumleys' actual and visible appropriation of the Disputed Property, as well as of the Brumleys' hostility of their claim of right to the Disputed Property. "Actual" means "existing in fact and not merely potentially." Merriam-Webster's Collegiate Dictionary 13 (11th ed. 2003). "Visible" means "capable of being seen." Id. at 1399. "Appropriate," as a verb, means "to take exclusive possession of." Id. at 61. "Claim of right" was defined in the court's charge to mean "an intention to claim the real property as one's own to the exclusion of all others." A "hostile" claim of right was likewise described in the charge.
The jury was instructed that a claim of right was hostile "only if either (1) it provides notice, either actual or by implication, of a hostile claim of right to the true owner; or (2) the acts performed on the real property, and the use made of the real property, were of such a nature and character that would reasonably notify the true owner of the real property that a hostile claim is being asserted to the property" but the court did not define the term "hostile."
The Brumleys originally claimed title by virtue of a special warranty deed from J.A. Coker. Unfortunately, they belatedly recognized that J.A. Coker was a stranger to the actual chain-of-title.
We find that sufficient evidence exists of an actual, visible, and hostile appropriation of the Disputed Property by the Brumleys that began as early as 2001, when the Brumleys expressly declared their hostile entry onto and possession of the Disputed Property as their own. See Commander v. Winkler, 67 S.W.3d 265, 270 (Tex. App.- Tyler 2001, pet denied) ("Express notice must be brought home to the landowner and adverse possession will run only from the time of such express notice to the landowner.") (cleaned up). Viewing the evidence in a light most favorable to the jury's verdict, we find that on the day of closing, Andy Brumley told Richard McDuff he was the new neighbor on the Disputed Property, and if that was not acceptable any controversy about title would need to be straightened out at the courthouse. Very soon thereafter, the McDuffs' employee was ejected from the Disputed Property by the Brumleys; the Brumleys' attorney sent the McDuffs a demand letter charging the McDuffs with trespassing and damages on the Disputed Property. Moreover, the Brumleys sent the McDuffs a criminal trespass warning, with some evidence that it was received. The McDuffs then conferred with an attorney and decided to make no response to the Brumleys' claim of ownership in the Disputed Property.
Also in 2001, Cody Brumley fenced the perimeter of the Disputed Property (including a second fence inside the fence bordering the McDuff land), and the Brumleys placed no trespassing signs on their fence line (including on the border to the McDuff land) and locked gates adjoining the property. As early as 2003, Richard McDuff had a conversation with Andy Brumley across the fence bordering the McDuff land and the Disputed Property. McDuff did not eject the Brumleys from the land. Instead, Richard allegedly asked, "How far west do you own property?" Andy replied, "All the way to the bridge." The jury had the opportunity to assess Richard's credibility and denial of the event.
Between 2001 and the time of trial, the evidence viewed in a light most favorable to the verdict showed the Brumleys also made multiple visible improvements to the land: they grated roads; built a livestock corral; stored surplus irrigation pipe, large mining truck tires, and farm equipment; installed water tanks and water lines; built hunting blinds and game feeders and installed deer cameras; and annually planted wheat for cattle grazing. The jury had the ability to assess the credibility of the McDuffs' denial of knowledge about the Brumleys' activities on the Disputed Property. Under the standards of review we must apply, we hold that sufficient evidence supports a finding that as early as 2001, the McDuffs' cause of action to recover the Disputed Property accrued and the ten-year limitation period began running. See Tex. Civ. Prac. & Rem. Code Ann. § 16.026(a).
2. Evidence of Exclusivity
The definition of a "claim of right" charged the jury with determining whether the Brumleys intended "to claim the real property as one's own to the exclusion of all others." The McDuffs argue their evidence of going upon the Disputed Property to pick wild plums, hunt, look for a lost dog, and holding a key to a gate padlock demonstrate joint use and thereby defeat continuous and exclusive possession. But, again, the jury had the ability to assess the credibility of the testifying witnesses. Moreover, this "joint use" argument overlooks the fact that the alleged acts occurred after the 2001 exchange of verbal and written communications from the Brumleys claiming ownership to the land, instructing the McDuffs not to trespass, and inviting judicial determination of ownership to the Disputed Property. This evidence of unilateral acts by the McDuffs does not conclusively show that such use was "joint;" nor does it conclusively defeat the Brumleys evidence of exclusive possession in a manner hostile to the McDuffs' legal interests. See Scott v. Cannon, 959 S.W.2d 712, 721-23 (Tex. App.-Austin 1998, pet. denied) (noting in prescriptive easement case that owners' knowledge of contents in deed records stating the subject road was public amounted to a distinct and positive assertion establishing adverse use).
We conclude that sufficient evidence supports a finding that the Brumleys actually and visibly appropriated the Disputed Property under a claim of right that was hostile to the McDuffs' claim.
3. Evidence of Continuous Possession
The McDuffs also argue the Brumleys did not continuously hold the Disputed Property for the requisite ten-year period. In the jury's charge, the trial court defined "peaceable possession" as meaning "possession of real property that is continuous and is not interrupted by an adverse suit to recover the property." Continuous means, "[M]arked by uninterrupted extension in space, time or sequence[.]" Merriam-Webster's at 270.
The McDuffs append to their complaint here that the Brumleys' possession of the Disputed Property was not consistent. But the trial court did not ask or instruct the jury of consistency.
The deed from A.M. Hiatt to the McDuffs conveyed acreage which fully encompassed the 345.9 disputed acres. Neither J.A. Coker, nor the Brumleys have made any claim to those excess acres.
Andy and Cody testified that on a daily or near-daily basis from February 2001 to the time of trial, they were physically on the Disputed Property working, farming, caring for livestock, hunting, or recreating. In addition to all of the visible improvements the Brumleys made to the land during the possession period, Andy testified that from the day of closing until the time of trial he farmed and kept cattle on the Disputed Property. The Brumleys installed new fencing surrounding the perimeter of the Disputed Property in 2001. As noted above, the evidence shows that new fencing was placed inside the existing fencing along the boundary between the McDuff property and the Disputed Property.
The McDuffs essentially challenge Andy's statement as conclusory, arguing Andy also testified he sold all the cows grazing on the Disputed Property in December 2010 or January 2011. But Brumley further testified the longhorns remained on the Disputed Property. The jury was empowered to resolve this disputed evidence.
The house was not located on the property in dispute; however, some of the fences and gates were on the disputed property.
Dennis Gilchrest, who lived on the adjacent McDuff property from 2001 to 2003, testified he saw the Brumleys on the Disputed Property two to three times per week. Evidence was presented that in 2003 or 2004, Richard McDuff had a conversation with Andy across the fence adjoining the McDuff land and the Disputed Property. Dean Gfeller, who leased the adjacent McDuff property for farming from 2004 to either 2014 or 2015, said he observed the Brumleys on the Disputed Property "a few times," and noted he seldom went to the fence bordering the McDuff land and the Disputed Property. From 2006 through 2015, Greg English, who also had a limited vantage point of the matters occurring on the Disputed Property, saw the Brumleys on the land two or three times, and would contact the Brumleys to seek permission to access the land to recover straying cattle.
It is undisputed that the Brumleys leased the surface of the Disputed Property for mining sand and gravel in 2007; in 2011, they leased the mineral estate. They were paid for seismic surveys on the Property in 2013. When viewed in the light most favorable to the verdict and in a neutral light, sufficient evidence shows the Brumleys continuously possessed the Disputed Property for the requisite ten-year limitations period.
4. Evidence of the Area Enclosed
In passing, the McDuffs argue the evidence was insufficient to establish the disputed property was enclosed as required by Civil Practice and Remedies Code section 16.026(b), thus resulting in an improper verdict or limiting the scope of property the Brumleys could adversely claim. We disagree. There was no jury submission and therefore no finding of contested facts necessary for determination of this complaint. Moreover, in addition to Cody's testimony about installing new fencing around the entire Disputed Property, the special warranty deed the Brumleys received from the Cokers describing the bounds of the Disputed Property was admitted into evidence.
See Tex. Civ. Prac. & Rem. Code Ann. § 16.026(b) ("Without a title instrument, peaceable and adverse possession is limited in [section 16.026] to 160 acres, including improvements, unless the number of acres actually enclosed exceeds 160. If the number of enclosed acres exceeds 160 acres, peaceable and adverse possession extends to the real property actually enclosed.").
Dean Gfeeler testified that he did not graze cattle on the disputed tract and that he would contact the Brumleys for "permission" to retrieve his cattle whenever they strayed onto the disputed property.
See Tex. Civ. Prac. & Rem. Code Ann. § 16.026(c) ("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.").
In a pretrial hearing, Brumley's counsel advised the trial court that the Brumleys were not claiming adverse possession on the basis of grazing cattle.
Having concluded the challenged attributes of the jury's findings were supported by legally and factually sufficient evidence, we overrule the McDuffs' first issue.
Alleged Error in Submission of the Jury Charge
By their second issue, the McDuffs argue the trial court reversibly erred by refusing to submit requested instructions and questions in the jury charge. Generally, an appellate court reviews a trial court's decision to submit or refuse a particular instruction under an abuse of discretion standard. Omega Contracting, Inc. v. Torres, 191 S.W.3d 828, 838 (Tex. App.-Fort Worth 2006) (citing James v. Kloos, 75 S.W.3d 153, 162 (Tex. App.- Fort Worth 2002, no pet.)). "A trial court is required to submit only ultimate or controlling factual issues which are essential to a right of action or defense. Questions that are not ultimate or controlling need not be submitted; if they are submitted, they may be disregarded as immaterial." C&C Partners v. Sun Exploration & Prod. Co., 783 S.W.2d 707, 721 (Tex. App.-Dallas 1989, writ denied), disapproved on other grounds by Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998); see also Triplex Commc'ns v. Riley, 900 S.W.2d 716, 718 (Tex. 1995) (noting "[i]f an issue is properly pleaded and is supported by some evidence, a litigant is entitled to have controlling questions submitted to the jury."). A controlling issue is one that if answered favorably to the submitted theory will form the basis for a judgment in favor of the issue's proponent. Stone v. Metro Rest. Supply, Inc., 629 S.W.2d 254, 256 (Tex. App.-Fort Worth 1982, writ ref'd n.r.e.).
1. Requested Submission of "Clear and Satisfactory" Proof
The trial court instructed the jury on the proper burden of proof:
The term "preponderance of the evidence" means the greater weight of credible evidence presented in this case. If you do not find that a preponderance of the evidence supports a "Yes" answer, then answer "No." A preponderance of the evidence is not measured by the number of witnesses or by the number of documents admitted in evidence. For a fact to be proved by a preponderance of the evidence, you must find that the fact is more likely true than not true.
The McDuffs requested the court further instruct the jury on the burden of proof by adding, "[t]he proof must be 'clear and satisfactory,' which means you must exercise great caution in weighing the evidence."
The trial court refused this requested submission. On appeal, the McDuffs argue that refusal was an abuse of discretion constituting reversible error. We disagree.
It has been said in some adverse possession cases that the proof must be "clear and satisfactory." Rhodes v. Cahill, 802 S.W.2d 643, 645 n.2 (Tex. 1990) (citing Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 290, 267 S.W.2d 781, 787 (1954)). But the Supreme Court of Texas has observed this language is an admonition to exercise great caution in weighing the evidence; it does not supplant the usual preponderance of the evidence standard of proof. Cahill, 802 S.W.2d at 645 n.2. Indeed, unless otherwise required in extraordinary circumstances where a more onerous burden is mandated by law, it is settled that in civil cases, "issues of fact are resolved from a preponderance of the evidence" standard. See Sanders v. Harder, 148 Tex. 593, 598, 227 S.W.2d 206, 209 (1950); Ellis Cty. State Bank v. Keever, 888 S.W.2d 790, 792 (Tex. 1994) (op. on reh'g). Adding to the preponderance-of-the-evidence instruction the McDuffs' requested language would have yielded nothing more than juror confusion, and would potentially misstate the law regarding the proper burden of proof as articulated by our Supreme Court. We therefore conclude the trial court did not abuse its discretion by refusing to submit McDuff's "clear and satisfactory" instruction.
2. Requested Instruction Regarding McDuffs' Ownership by Title
The McDuffs also requested the trial court instruct the jury that, "the McDuffs have established their title to the [Disputed] Property through deeds traced back to patents from the State of Texas, the sovereign." Alternatively, they sought a question inquiring "[w]ho owns the [Disputed] Property under the regular chain of title from the sovereign?" But there was no question about who owned title to the Disputed Property; the Brumleys even conceded this fact prior to trial. Construing unambiguous deeds is a question of law for the trial court, thus presenting no question of fact. See Stribling v. Millican DPC Partners, LP, 458 S.W.3d 17, 20 (Tex. 2015) (per curiam).
Ownership by record title was not the issue in this case. The sole means for the Brumleys to prevail on their trespass to try title action was by proving title by limitations. The proposed instruction or question did not concern a controlling issue. To instruct or inquire as requested by the McDuffs would only confuse the jury and might have produced conflicting findings. We conclude the trial court did not abuse its discretion by refusing the requested instruction or alternatively-requested question.
3. Requested Question Regarding Classification of Fencing
The McDuffs also complain about the trial court's refusal to submit a question inquiring, "Do you find from a preponderance of the evidence that there was a design fence on the property at the time -- as of the year 2000?" The McDuffs also urge error in the trial court's refusal to instruct the jury in the following manner: (1) "[y]ou will be instructed that adverse possession does not include fencing or re-fencing over fencing that was there prior to the occupant's arrival on the premises in 2001"; and (2) "you are instructed that a design fence is not an act which constitutes - constructing a casual fence where a design fence previously existed is not an act that constitutes adverse possession." We hold that the trial court did not abuse its discretion in refusing the requested question or instructions.
"The adverse claimant who relies upon grazing only as evidence of his adverse use and enjoyment must show as part of his case that the land in dispute was designedly enclosed." McDonnold v. Weinacht, 465 S.W.2d 136, 142 (Tex. 1971) (citing multiple decisions). However, the Brumleys pursued title by limitations through evidence that went well beyond proof of grazing cattle and repair/replacement of border fencing. They presented evidence of their overt declarations of ownership and through other open and visible acts. The question was therefore not of a controlling issue. In light of this other evidence admitted at trial, the McDuffs fail to show how the trial court's refusal to give the requested instruction or question is harmful. Tex.R.App.P. 44.1. We conclude the trial court did not commit reversible error in its charge determinations concerning the type fencing employed.
Finding no abuse of discretion by the trial court in refusing submission of the requested instructions and questions, we overrule the McDuffs' second issue.
Addressing the Views from the Dissenting Opinion
Aside from the dissenting opinion's views of alleged procedural unfairness about the trial (an argument not advanced by Appellants), we briefly address the dissent's rationale why it believes the evidence supporting the jury's verdict is legally insufficient. No member of this Court personally observed when, if ever, the Brumleys took possession of the land. No one on the Court personally observed whether the Brumleys actually performed acts to improve the land that the witnesses testified about at trial.
What we have, instead, is the record of the testimony and exhibits admitted at trial, along with the long-standing rule that evidence is legally sufficient if it "would enable reasonable and fair-minded people to reach the verdict under review." City of Keller, 168 S.W.3d at 827; Robert W. Calvert, "No Evidence" & "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361 (1960). Because jurors are "the sole judges of the credibility of witnesses and the weight to give their testimony," we are mindful of our limited role in this story; jurors, not the members of this Court, are empowered to credit evidence that was favorable to the verdict and to disbelieve the contrary evidence. See id. at 819. In light of the applicable law and the proper lens for appellate review, we conclude that reasonable and fair-minded jurors possessed sufficient evidence to answer "Yes" to the question submitted by the trial court.
Conclusion Having overruled the McDuffs two appellate issues, we affirm the judgment of the trial court.
DISSENTING OPINION ON REMAND
Patrick A. Pirtle Senior Justice
With the greatest respect for my former colleagues, in my humble opinion, the majority opinion in this case perpetuates an injustice foisted upon Appellants by a legal system that has failed them. What I believe actually happened in this case is that Appellants and their out-of-town lawyer got "home-towned" in a complex real property dispute that was tried as a suit to quiet title, but which the Texas Supreme Court has construed to be a suit in trespass-to-try title-the significance being the trial court's evidentiary rulings left the distinct impression that Appellees were the record title holders. Because I believe our legal system failed Appellants on every level, from the justice of the peace court on up, I passionately, but respectfully dissent.
Introduction
To understand my opinion in this matter, one must first have a basic grasp of the character and layout of the disputed property and an understanding of the nature and scope of what it might mean to "adversely possess" such a remote piece of property.1 To begin with, the disputed property is an oddly-shaped tract of land (property traced in white in the inserted photo) consisting of 345.9 acres, bounded on the south and southwest along the present course of the Pease River, in Wilbarger County, Texas. The disputed property is encompassed entirely within property previously deeded to Appellants, Richard Howard McDuff, and his wife, Sara Sullivan McDuff, (property traced in red) by A.M. Hiatt.2 The disputed property abuts property owned by Appellees, Andy Brumley and wife, Sheri Brumley, along its easternmost boundary line. The vegetation covering the disputed property is primarily dense mesquite thicket and scrub brush, with a 30-60 acre wheat pasture encompassed within the interior of the property. The disputed property is completely land-locked and there is no public access to the property, other than along the (Image Omitted) Pease River. Along the northern boundary line of the disputed property (towards the McDuffs' property), the Brum leys posted "No Trespassing" signs. No one resides on the disputed property and no permanent improvements or structures have been built on the property save a few deer blinds and deer feeders.
Testimony concerning who actually constructed the deer blinds and feeders is sketchy, with Brum ley offering testimony that the blinds were constructed subsequent to his alleged possession, whereas McDuff offered testimony that some of the blinds were there before Brum ley claims to have taken possession. McDuff further insisted that some of the blinds may have been left by hunters who had previously leased the property from him for purposes of hunting.
Concerning his "use" of the disputed property, Brumley maintained that he grazed cattle on the property and had placed some "large mining truck tires used as livestock watering troughs." (Despite Brum ley's testimony that there has never "been a period of time, from the time [he] purchased [the disputed property] in 2001 until [the day of trial]," that he has not had cattle on the property, Brumley offered no evidence of other watering troughs on the property). On the issue of fencing, despite Brumley's testimony that he constructed a five-wire barbed-wire fence all the way around the disputed property, other exhibits and his own personal testimony seemed to contradict that statement.
At the conclusion of the trial on the merits, the trial court submitted to the jury a single issue inquiring whether Appellees held "the Property in peaceable and adverse possession for at least ten years" prior to the date suit was filed. The court provided the jury with definitions of "peaceable possession," "adverse possession," and "claim of right." Following its deliberations, the jury returned a verdict in favor of Appellees. On direct appeal, this court found that a judgment in trespass-to-try title was not supported by the pleadings and was not tried by consent.3 Accordingly, we reversed the judgment of the trial court and rendered a take-nothing judgment. Upon further appeal, the Texas Supreme Court reversed this court and remanded the matter for further proceedings.4
On remand from the Texas Supreme Court, liberally construing the cause of action being asserted as a trespass-to-try-title claim and having reviewed the issues previously pretermitted by this court in our earlier review of the lower court's decision in favor of Appellees, Andy Brumley and Sheri Brumley, I find the evidence to be legally insufficient to support the jury's verdict based on adverse possession. Accordingly, I would reverse the judgment of the trial court and render judgment that the Brumleys take nothing by this suit.
Background
Appellants are the legal title holders of a larger tract of land that encompasses the disputed tract of 345.9 acres situated along the Pease River, near the City of Vernon, in Wilbarger County, Texas. The Brumleys claim ownership of the disputed tract by virtue of the law pertaining to adverse possession.5 The issue of whether the Brumleys adversely possessed the McDuffs' property was presented to the jury. The jury found in favor of the Brumleys and the trial court entered judgment vesting title in their favor. By four issues, the McDuffs challenge (1) the legal and factual sufficiency of the evidence supporting the jury's verdict and whether the trial court erred by failing to submit certain questions and instructions to the jury pertaining to (2) "clear and satisfactory" proof, (3) "record title," and (4) "casual fencing and designed enclosures."
The McDuffs purchased the larger tract of property, which included the property in dispute, in July 1984, when they received a general warranty deed from A.M. Hiatt.6 That deed was recorded in August 1984, and the McDuffs began to reside on the property shortly thereafter. The McDuffs made several improvements to the property, including the construction of a house, fences, and gates.7 In June 1995, a flood forced the McDuffs to abandon the original residence and establish a new residence elsewhere on the property. Due to some undesirable activity along the Pease River, the McDuffs decided to use the southernmost portion of the property adjacent to the river (described as thick scrub brush and woody thicket) as a buffer between the northern part of the property (where their new home and wheat fields were located) and the river. Years later, the original home was repaired and Erin McDuff Oliver and her husband, Casey Oliver, returned to live there from 2004 until August 2016. During this time period, the McDuff and Oliver families used parts of the disputed tract for family recreational purposes. They had campfires, took the children camping, rode ATVs, and shot firearms on the disputed tract. Some family members hunted, while others gathered wild plums, driftwood, and deer antlers. No one interfered with their use and enjoyment of the property and the tract was always accessible because they had a key to a padlock on the fenced portion of the property. During this time frame, the McDuffs signed an oil and gas lease that included the disputed tract and they also entered into various hunting leases that allowed the lessee to set up hunting blinds on the property. None of these activities were ever challenged.
In March 2000, the Brumleys purchased an adjacent piece of property, referred to as the "Namken Property," that was located generally to the east of the disputed property. In 2001, J.A. "Ricky" Coker approached Andy Brumley about the prospect of purchasing the disputed tract. Ricky claimed that his family held title to the property through his grandfather A.K. Coker, and his father, J.A. Coker. Despite being aware of a land title dispute between the McDuffs and A.K. Coker, Brumley purchased the property without a title examination. On March 5, 2001, Aline Coker, A.K. Coker's widow, filed a special warranty deed transferring her interest, if any, in the disputed property to her son, J.A. Coker. Two minutes later, J.A. Coker and his wife, Beth, filed a special warranty deed transferring their interests, if any, in the disputed property to Andy and Sheri Brumley. Both deeds were dated February 27, 2001.
Apparently aware of questions concerning the validity of his title, shortly after the filing of the special warranty deeds, Andy Brumley went to see Richard McDuff about the disputed tract. Because Brumley did not tell McDuff that he had already purchased the property, McDuff advised him that he was making a mistake if he went through with the purchase because the Cokers did not have any interest in the disputed property to sell. Brumley left and, despite several subsequent social or business contacts, the two never discussed the matter again until this litigation was filed.
In August or September 2001, an incident occurred when McDuff sent an employee to clear brush for purposes of building a road and fence on the disputed property. Work stopped when Brumley's son, Cody, instructed the man to leave the property. Afterwards, the Brumley's attorney sent McDuff a trespass warning by certified mail. He also sent a demand letter for the payment of damages suffered as a result of McDuff's alleged trespass. McDuff consulted an attorney and made a physical inspection of the disputed property. Finding no use, occupation, or activity on the property and because the letter contained inaccuracies about the history of the disputed property and its ownership, McDuff chose to ignore it. Instead, the McDuffs discontinued any efforts to clear the land and the Brumleys never followed up on the threats of suit they made. From 2004 until sometime in 2014 or 2015, the McDuffs cash-leased the property to a third party who either farmed the adjacent wheat fields or grazed cattle on the pasture lands.8 As a result, the McDuffs sporadically inspected the property and denied actual notice of any unauthorized activity on the disputed property until sometime in 2014.
As to the Brumleys' use and occupancy of the disputed tract, from sometime in 2001 until 2014 (the dates of which were not established by the evidence) they erected "no trespassing" signs, rebuilt existing fences, and added new interior "cross-fencing." In addition, for undisclosed periods of time, they hunted on the property, graded roads, and used old tires to make water troughs for cattle. During that same unspecified time frame, the McDuffs also hunted on the property, while repairing and maintaining sections of the fencing. At no time did the Brumleys erect any permanent improvements on the property (save a few semi-permanent deer blinds) and no one ever resided on the disputed property. The Brumleys also grazed livestock on the disputed tract; however, no evidence was ever presented as to the number of head of cattle grazed or the grazing capacity of the 345.9 acres.9
On July 11, 2014, the Brumleys brought suit to "quiet title," claiming they had held the disputed property in adverse possession for more than ten years. In their petition, they contended they came into possession in February 2001, by virtue of the special warranty deed from J.A. Coker and his wife, Beth Coker. The Brumleys did not contend, as they could not, that their title could be traced back to the sovereignty of the soil. Clinging to their claim of title by virtue of the Coker special warranty deed, the Brumleys alternatively claimed title by adverse possession. In response, the McDuffs' position at trial was that J.A. Coker and Beth Coker never owned title to the disputed property, that they were naked trespassers, and that the special warranty deed did not pass legal title to the property in controversy to them. The McDuffs further contended that the Brumleys' "cultivation, use, and enjoyment" of the disputed property never rose to a level sufficient to raise an inquiry or cause the commencement of limitations, more than ten years prior to the filing of this suit.
The McDuffs' second, third, and fourth issues generally complain about the trial court's instructions to the jury, contending that in this complicated area of law pertaining to adverse possession, where courts are charged with seeing that the elements of adverse possession are "strictly complied" with and juries are required to make certain that there is "clear and satisfactory" proof of unfamiliar concepts like "casual fencing" and "designed enclosures," the trial court's instructions could have been more elucidating. While I certainly agree the jury could have received clearer direction, I conclude that our disposition of issue one, pertaining to the pivotal question of adverse possession, is dispositive.
Adverse Possession
If an action for the recovery of real property is barred under chapter 16 of the Texas Civil Practice and Remedies Code (i.e., recovery is barred based on the affirmative defense of the statute of limitations), the party holding the disputed property in peaceable and adverse possession is deemed to have full title, precluding all claims. See Tex. Civ. Prac. & Rem. Code Ann. § 16.030(a). The applicable statute of limitations and whether an action for the recovery of real property is barred by that statute depends on the facts and circumstances of each individual case. See §§ 16.021-.037; Wells v. Johnson, 443 S.W.3d 479, 489 (Tex. App.-Amarillo 2014, pet. denied). Under the doctrine of adverse possession, in the context of a dispute concerning possession of real property, the rightful owner of the property must institute suit for recovery within a specified period of time (three, five, ten, or twenty-five years depending on various statutory factors and conditions) or subsequently be barred from recovery or possession. Therefore, "[t]he concept of adverse possession allows a person to claim title to real property presently vested in another." Session v. Woods, 206 S.W.3d 772, 777 (Tex. App.-Texarkana 2006, pet. denied) (emphasis in original).
All further references to "§" or "section" are to the Texas Civil Practice and Remedies Code unless otherwise designated.
Due to the harsh nature of disenfranchising someone of title to real property otherwise rightfully held, establishing title by adverse possession is not well-regarded in the law, and the statutory prerequisites must be strictly complied with. Thomas v. Southwestern Settlement & Development Co., 131 S.W.2d 31, 34 (Tex. App.-Beaumont 1939, writ dism'd judgm't cor.). Therefore, "[o]ne seeking to establish title to land by virtue of the statute of limitations has the burden of proving every fact essential to that claim by a preponderance of the evidence." Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990); Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 286, 267 S.W.2d 781, 787 (1954) (holding that adverse claimant has the burden to prove every fact necessary to that claim by "clear and satisfactory" evidence). Thus, the burden of proving each essential element is on the party claiming title by adverse possession. Fuentes v. Garcia, 696 S.W.2d 482, 484 (Tex. App.-San Antonio 1985, no writ) (citing Davis v. Carriker, 536 S.W.2d 246, 251 (Tex. App.-Amarillo 1976, writ ref'd n.r.e.)). See Moore v. Stone, 255 S.W.3d 284, 288 (Tex. App.-Waco 2008, pet. denied).
Under Texas law, in addition to the statutory requirements of "cultivation, use, and enjoyment" for the requisite period of time, courts have interpreted every claim of adverse possession as encompassing at least six essential elements: (1) visible appropriation and 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 and 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 § 16.021(1). It has also been said that adverse possession requires "an 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." BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59, 69 (Tex. 2011) (quoting § 16.021(1)).
(1) Cultivation, Use, and Enjoyment
For more than 100 years, this court has held that a party claiming peaceable and adverse possession of disputed property must establish by competent evidence the cultivation, use, and enjoyment of the same. Wichita Valley Railway Co. v. Somerville, 179 S.W. 671 (Tex. App.-Amarillo 1915, no writ). In fact, the three statutory verbs describing the requisite possession are "cultivation, use, and enjoyment." Physical occupancy is not a requirement. Accordingly, when it comes to rural property not physically occupied by the claimant, in a trespass-to-try title cause of action, it is not necessary for the party alleging same to show actual personal occupancy of the land so long as the cultivation, use, and enjoyment of the property is of such a nature as would place a reasonable landowner on notice that someone is claiming an adverse ownership interest in the property. It is not enough to show some transitory or temporary use and enjoyment of the property, but the use and enjoyment must be of such a character as to evidence a visible, adverse, and hostile claim of ownership. Furthermore, the adverse and hostile cultivation, use, and enjoyment of the property must be shown to be continuous and uninterrupted for the entire period of limitations.
(2) Visible Appropriation and Possession
Under Texas law, adverse possession requires "an 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." § 16.021(1). Therefore, to satisfy the elements of an adverse possession claim, the claim of the adverse claimant must be readily apparent to, inconsistent with, and hostile to the claim of the rightful title holder. BP Am. Prod. Co., 342 S.W.3d at 69-70. To claim property through adverse possession, "the possession must be of such character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant." Rick v. Grubbs, 147 Tex. 267, 214 S.W.2d 925, 927 (1948) (emphasis in original). In determining what constitutes an "unmistakable" claim of exclusive ownership, courts have given significant consideration to the nature of the land and its usual and customary uses. Wells, 443 S.W.3d at 489 (occasional grazing of river-bottom land used for sorting of cattle insufficient to establish claim of exclusive ownership); Wall v. Carrell, 894 S.W.2d 788, 801 (Tex. App.-Tyler 1994, writ denied) (mere fencing and occasional removal of timber insufficient to establish visible appropriation of an otherwise unoccupied 31.4-acre strip of wooded land). Accordingly, when a party relies on a naked claim of possession (without physically occupying the land or prohibiting all other occupancy or use by fencing or other exclusionary means), the nature of the occupancy or possession "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." Rhodes, 802 S.W.2d at 645 (neither isolated incidents of selling cedar timber nor clearing of cedar trees for purposes of seasonal grazing of cattle or goats was sufficient to unmistakably establish adverse possession claim of 15.332 acres of cedar timberland).
(3) Open and Notorious
Furthermore, possession by the adverse claimant must be "open and notorious." Open and notorious possession carries with it an indicium of ownership and, in that sense, operates as notice to the true owner that title to his property is being claimed by the party who is openly using or profiting from the disputed property. Felts v. Whitaker, 129 S.W.2d 682, 687 (Tex. App.-Fort Worth 1939), aff'd, 137 Tex. 578, 155 S.W.2d 604 (Tex. 1941). In that regard, the nature of the possession must be so obvious as to afford grounds for a presumption of knowledge or notice, and it must be sufficiently "open, exclusive and visible" as to excite an inquiry, for the term of the limitations period. Id. at 688. The degree of use must be sufficient to raise an inquiry and that degree of use will depend on the nature and character of the property, as well as the nature and extent of the claimant's claim of right to that property.
(4) Peaceable
A fourth requirement of adverse possession is "peaceable possession," defined as "possession of real property that is continuous and is not interrupted by an adverse suit to recover the property." § 16.021(3). An "adverse suit to recover the property" would include both a forcible detainer action filed in justice court, as well as a trespass-to-try title action filed in district court. Valdez v. Moerbe, No. 03-14-00731-CV, 2016 Tex.App. LEXIS 3504, at *23 (Tex. App.-Austin April 6, 2016, pet. denied) (mem. op.).
(5) Under a Claim of Right
As contemplated under the doctrine of adverse possession, a "claim of right" is a claim made by the party in possession, of the intent to claim the land in question as owner, and not in recognition of or in subordinate to the record title owner. Wells, 443 S.W.3d at 489; Sisson v. Koelle, 10 Wash.App. 746, 520 P.2d 1380, 1384 (1974). In order to satisfy the elements of an adverse possession claim, the claim of the adverse claimant must be of such a character as to indicate unmistakably an assertion of exclusive ownership in the occupant. Wells, 443 S.W.3d at 489.
(6) Adverse and Hostile to True Owner
Possession of property under a claim of adverse possession must be "actual and visible appropriation" and use of the disputed property. Whenever a disputed tract of land is casually or incidentally occupied, any accompanying recreational use such as camping or hunting, or the occasional grazing of livestock will not amount to such adverse and hostile possession as will support a claim of title by adverse possession. Orsborn, 267 S.W.2d at 785.
(7) Consistent and Continuous for the Duration of the Statutory Period
The seventh essential element of an adverse possession claim is that the acts constituting the adverse possession must be consistent and continuous for the duration of the statutory period. Wells, 443 S.W.3d at 489. The acts constituting adverse possession must be uninterrupted by temporary vacancy, unless the duration of the vacancy is reasonable under the existing circumstances which reasonably shows the adverse claimant did not thereby intend to abandon the premises. Dunn v. Taylor, 102 Tex. 80, 113 S.W. 265, 267 (1908) (holding that "[i]t was incumbent on [the adverse claimant] to show the facts from which the conclusion of continuity may be deduced affirmatively"). The evidence must show that the nature of the possession was sufficient to indicate continued dominion over the disputed property.
Section 16.026-Ten-Year Limitations Period
Section 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." § 16.026(a). Under this section, when a claimant relies on grazing to establish his adverse possession, he must present evidence that he "designedly enclosed" the disputed property. McDonnold v. Weinacht, 465 S.W.2d 136, 141-42 (Tex. 1971) (citing Orsborn, 267 S.W.2d at 785); Wells, 443 S.W.3d at 489-90; Perkins v. McGehee, 133 S.W.3d 287, 292 (Tex. App.-Fort Worth 2004, no pet.). "If the fence existed before the claimant took possession of the land and the claimant fails to demonstrate the purpose for which it was erected, then the fence is a 'casual fence.' Repairing or maintaining a casual fence, even for the express purpose of keeping the claimant's animals within the enclosed area, generally does not change a casual fence into a designed enclosure." Rhodes, 802 S.W.2d at 646 (citations omitted). An exception to the designed enclosure requirement exists if the adverse claimant can establish sufficient visible non-grazing appropriation of the land such that the true owner would have notice of the hostile claim. Trevino v. Trevino, 64 S.W.3d 166, 172 (Tex. App.-San Antonio 2001, no pet.).
Analysis
The legal theory pursued by the Brumleys in this case was not the model of clarity. Couched in the terms of a suit to quiet title, they steadfastly maintained that they held superior title by virtue of the special warranty deed they received from J.A. Coker and wife, Beth Coker. In fact, when Andy was asked if he was trying to "take" the disputed property by way of a claim of ownership that was adverse and hostile to the claim of the McDuffs, he stated that "[i]t was never my intention to take land from anyone. That's why I paid for it." During the prosecution of the case-in-chief, however, the first two exhibits introduced by the Brumleys were the two "Coker" deeds constituting their entire chain of title. Circumstantially, Andy also admitted that he was aware of the ownership dispute between the McDuffs and the Cokers at the time he agreed to take a special warranty deed, without a title examination or title insurance. This raises a question as to whether the Brumleys were claiming the property adverse to the McDuffs or whether they recognized their superior title.
Despite this emphasis on the deeds, the Brumleys' counsel announced to the court and argued before the jury that the Brumleys were not claiming title through their deed. Their counsel even stipulated that the McDuffs were the rightful title holders of the property yet opposed introduction of evidence that would have established the conveyance of the larger encompassing tract from A.M. Hiatt to the McDuffs. As tried by the parties and as submitted to the jury by the court, the Brumleys' claim of ownership to the disputed property was based solely on their claim of adverse possession. Furthermore, in the final analysis, the Brumleys' adverse possession claim was not based on physical occupancy or possession of the land but instead on weak or inconsequential evidence of occasional hunting and related activities.
Counsel for the Brumleys specifically announced to the court that the Brumleys' claim was not based on grazing cattle. Nor was it based on the construction of any permanent improvements. Although testimony was provided about the construction of deer blinds, other testimony suggested that both the Brumleys and the McDuffs allowed others to hunt on the disputed property and that occasionally they would leave or abandon the deer blinds. The Brumleys also offered testimony concerning the placement of large tires on the disputed property for the watering of wildlife and the growing of crops for the feeding of wildlife.
By their first issue, the McDuffs contend the jury's finding of adverse possession is unsupported by legally or factually sufficient evidence. When a party attacks the legal sufficiency of an adverse finding on an issue that the opposing party had the burden to prove at trial, we will sustain that challenge if (a) there is a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence establishes conclusively the opposite of a vital fact. Dallas Nat'l Ins. Co. v. De La Cruz, 470 S.W.3d 56, 57-58 (Tex. 2015) (per curiam). In our review, we must credit favorable evidence if a reasonable fact finder could do so and disregard contrary evidence unless a reasonable fact finder could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Furthermore, we consider the evidence in the light most favorable to the finding under review, and we indulge every reasonable inference that would support the finding. Id. at 822.
As stated before, the doctrine of adverse possession is based on the statutes of limitation for the recovery of real property. See §§ 16.021-.037. See also Wells, 443 S.W.3d at 488. Thus, in the context of a dispute concerning possession of real property, the rightful owner of the property must institute suit within a specified period of time (three, five, ten, or twenty-five years depending on various statutory factors and conditions) or subsequently be barred from recovery. The relevant statutory period of time (in this case ten years) commences once a cause of action for possession by the rightful property owner accrues.
The Brumleys have failed to establish by "clear and satisfactory" proof any visible non-grazing appropriation of the land of such a character that it would cause the true owners, the McDuffs, to have notice of a hostile claim. At best, the McDuffs might be aware of persons occasionally using the property for recreational purposes; however, because this use would not be inconsistent with the purposes for which the McDuffs had leased the property, such incidental usage would not rise to the level of putting them on notice of an adverse possession claim. Furthermore, such use would not rise to the level of "consistent and continuous" possession. Nothing about a graded dirt road, a used-tire water trough, or repaired or replaced fencing was of such a character as to put the McDuffs on notice that someone was making a hostile claim of ownership to the entire 345.9 acres.
Here, the Brumleys failed to establish any cultivation, use, or enjoyment of the disputed property of such a character that it would raise a sufficient inquiry that they were "visibly appropriating" the entire 345.9 acres or that their claim was either "hostile" or "open and notorious." Nothing about their occasional use of the property for hunting rises to the level of putting the McDuffs on notice of an adverse claim of legal ownership. See King Ranch, Inc. v. Garcia, No. 04-13-00605-CV, 2014 Tex.App. LEXIS 8522, at *14 (Tex. App.-San Antonio Aug. 6, 2014, pet. denied) (mem. op.) (finding evidence that claimant had family gatherings on the property, grazed cattle, hunted and occasionally grew crops was insufficient to establish actual visible appropriation where fences existed before the claimant took possession); Moore, 255 S.W.3d at 289 (holding no adverse possession of property enclosed by casual fence where only use was grazing, cutting hay, and sporadic cultivation); Harlow v. Giles, 132 S.W.3d 641, 648 (Tex. App.- Eastland 2004, pet. denied) (finding use of property for grazing of livestock and occasional hunting, including the construction of deer blinds and deer feeders, was insufficient to establish adverse possession where claimant failed to establish a "designed enclosure").
In this case, the disputed property consists of 345.9 acres of unimproved land. Portions of the property were covered by "thick scrub brush and woody thicket," whereas other portions of the property (30-60 acres) were described as pastureland suitable for the grazing of livestock. Testimony established that, prior to any claim being asserted by the Brumleys, the disputed property was partially enclosed by existing fences and partially enclosed by fences that were "occasionally washed out by the river." The Brumleys offered testimony that they repaired or replaced much of that original fence. They did not establish by clear and convincing proof that the property in question was "designedly enclosed." As a result, the fences in question were, as a matter of law, "casual fences." The Brumleys' activities on the disputed property consisted of the occasional repair or maintenance of these casual fences, the grazing of livestock, occasional hunting activities, and the construction of minor improvements. The record is silent as to the dates, duration, and intensity of these activities and amounts to nothing more than a scintilla of evidence regarding the character of their "possession." As such, the Brumleys failed to offer sufficient evidence that their possession of the disputed property amounted to (1) "visible appropriation" of the entire 345.9 acres that was both (2) "open and notorious," as well as (3) "adverse and hostile" to the claim of the McDuffs, for a (4) "consistent and continuous" duration of the statutory period of ten years. As such, I find the evidence is legally insufficient and the judgment entered in favor of the Brumleys cannot legally stand. Accordingly, I would sustain issue one. In light of the disposition of issue one, I would pretermit the disposition of issues two, three, and four. See Tex. R. App. P. 47.1 (written opinion of appellate court need not address issues which are unnecessary to final disposition of the appeal).
Conclusion
Because I would sustain issue one, I dissent. I find the judgment of the trial court should be reversed and judgment rendered denying all relief requested.