pjc-oil-and-gas-2022-lib

PJC 301.3

A DVERSE P OSSESSION

S.W.3d at 70–72; Hardaway v. Nixon , 544 S.W.3d 402, 409 (Tex. App.—San Antonio 2017, pet. denied); Luminant Mining Co. v. PakeyBey , 14 F.4th 375, 380–81 (5th Cir. 2021). For additional discussion, see PJC 301.1. The same is true with a permissive holdover tenant. See Pool , 124 S.W.3d at 194 (“‘[P]ossession cannot be considered adverse until the tenancy has been repudiated, and notice of such repudiation has been brought home to the titleholder.’ But . . . actual notice of repudiation is not required. Rather, notice can be inferred, or there can be constructive notice.”) (citing Tex-Wis Co. v. Johnson , 534 S.W.2d 895 (Tex. 1976)). “Whether there has been a repudiation of a nonpossessory cotenant’s title is a question of fact [but] when the pertinent facts are undisputed, repudiation may be established as a matter of law.” King Ranch, Inc. , 118 S.W.3d at 756; see also Marshall , 342 S.W.3d at 70–72. For additional discussion, see PJC 301.1. When repudiation is disputed, an additional instruction may be required. See, e.g., Dyer v. Cotton , 333 S.W.3d 703, 711–13 (Tex. App.—Houston [1st Dist.] 2010, no pet.); Bell v. Lyon , 635 S.W.2d 586, 589–90 (Tex. App.—Houston [14th Dist.] 1982, writ ref’d n.r.e.). The court in Dyer affirmed submission of the following instruction in a suit between cotenants: [T]he possession by an owner of an interest in property will be presumed to be his right as a co-owner. The possession, to be adverse to the other owner, or owners, must be of such acts as to amount to an ouster of the other owner, or owners, and must be of such an unequivocal nature and so distinctly hos tile to the others’ rights that the intention to claim the property is clear and unmistakable. Dyer , 333 S.W.3d at 711; see also Todd , 365 S.W.2d at 159–60. Although mere pos session does not generally suffice, one exception may be when possession and asser tion of a claim by one cotenant is so long-continued, at least in the absence of a claim by the nonpossessory cotenant, that it puts the nonpossessory cotenant on constructive notice of the repudiation. Tex-Wis Co. , 534 S.W.2d at 901 (jury may infer notice of repudiation from a cotenant’s long-continued possession and absence of claim by the titleholder). But see Hardaway , 544 S.W.3d at 409–10 (cotenant’s summary judgment burden on notice of repudiation not satisfied “based on an inference or presumption arising from long-continued possession and absence of a claim” without evidence of other unequivocal, hostile acts taken to disseize other cotenants). Acknowledgment of title. Acknowledgment of title in another may defeat an adverse possession claim if made before limitations title ripens but not after. But a possessor’s acknowledgment of title in another after the limitation period may tend to show that the possession was not adverse. Bruni v. Vidaurri , 166 S.W.2d 81, 88 (Tex. 1942). Whether an adverse claimant’s conduct or statement constitutes an acknowl edgment of title in another is a question of fact. Kinder Morgan North Texas Pipeline, L.P. v. Justiss , 202 S.W.3d 427, 439 (Tex. App.—Texarkana 2006, no pet.); Bell , 635

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