pjc-oil-and-gas-2022-lib

A DVERSE P OSSESSION

PJC 301.4

781 (Tex. 1954) (discussing hostile claim of right); Villarreal v. Guerra , 446 S.W.3d 404, 410 (Tex. App.—San Antonio 2014, pet. denied) (defining the test for hostility); Taub v. Houston Pipeline Co. , 75 S.W.3d 606, 626 (Tex. App.—Texarkana 2002, pet. denied) (same); see also Natural Gas Pipeline Co. of America v. Pool , 124 S.W.3d 188, 198 (Tex. 2003) (discussing claim of right); Rhodes v. Cahill , 802 S.W.2d 643, 645 (Tex. 1990) (same). Broad-form submission. Submission of adverse possession elements in one question is proper. Pinchback v. Hockless , 158 S.W.2d 997, 1003 (Tex. 1942); Davis v. Dowlen , 136 S.W.2d 900, 905 (Tex. App.—Beaumont 1939, writ dism’d judgm’t cor.). The entire time period over which adverse possession is claimed should be submitted in a single question. Pinchback , 158 S.W.2d at 1002. No title instrument. Peaceable and adverse possession under Tex. Civ. Prac. & Rem. Code §16.026 without a title instrument is limited to 160 acres, including improvements, unless the number of acres actually enclosed exceeds 160, in which case the peaceable and adverse possession extends to the real property actually enclosed. With title instrument. Under Tex. Civ. Prac. & Rem. Code §16.026(c), a pos sessor’s claim may extend to the boundaries specified in any duly registered deed or other memorandum of title that fixes the boundaries of the adversely possessed tract of land. Enclosed or adjacent land. In a case involving fenced acreage, one or more additional instructions may be required. Tex. Civ. Prac. & Rem. Code §§16.031, 16.032. If the record owner is in actual possession of any part of the land to which he holds record title, the adverse possessor claiming under Tex. Civ. Prac. & Rem. Code §16.031(b) can claim only the land actually enclosed. See Coleman v. Waddell , 249 S.W.2d 912, 913 (Tex. 1952). Casual fence vs. designed enclosure. Texas courts distinguish between “casual fences” and fences that “designedly enclose” an area. Rhodes , 802 S.W.2d at 646. If the fence existed before possession was taken of the land and the possessor fails to demonstrate the purpose for which it was erected, then the fence is a “casual fence.” Rhodes , 802 S.W.2d at 646; Orsborn , 267 S.W.2d at 786. 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. McDonnold v. Weinacht , 465 S.W.2d 136, 142–43 (Tex. 1971); see also Castillo v. Luna , 640 S.W.3d 256, 262–63 (Tex. App.—Houston [14th Dist.] 2021, no pet.) (con sidering issue of whether fencing distinction is necessary in residential neighborhood). However, an adverse possessor may substantially modify a casual fence so as to change its character to a designed enclosure, and such evidence will support a jury finding of adverse possession. Rhodes , 802 S.W.2d at 646; Butler v. Hanson , 455

51