pjc-oil-and-gas-2022-lib

PJC 301.4

A DVERSE P OSSESSION

S.W.2d 942, 945–46 (Tex. 1970). If the character of the fence is in dispute, an addi tional question or instruction may be necessary. Possession of mineral estate. Adverse possession of the surface estate results in adverse possession of the mineral estate unless the two estates have been severed. Grissom v. Anderson , 79 S.W.2d 619, 621 (Tex. 1935). Once severed from the surface estate, the mineral estate may be acquired only by adverse possession of the mineral estate and not by adverse possession of the surface estate. Pool , 124 S.W.3d at 192–93, 198; Thedford v. Union Oil Co. of California , 3 S.W.3d 609, 615 (Tex. App.—Dallas 1999, pet. denied); Barfield v. Holland , 844 S.W.2d 759, 767 (Tex. App.—Tyler 1992, writ denied); Watkins v. Certain-Teed Products Corp. , 231 S.W.2d 981, 985 (Tex. App.—Amarillo 1950, no writ). The severed mineral estate can be adversely pos sessed only by drilling and production operations for the statutory period of time. Pool , 124 S.W.3d at 193; Sun Operating Ltd. Partnership v. Oatman , 911 S.W.2d 749, 757 (Tex. App.—Amarillo 1995, writ denied); Barfield , 844 S.W.2d at 767; Webb v. British American Oil Producing Co. , 281 S.W.2d 726, 734 (Tex. App.—Eastland 1955, writ ref’d n.r.e.). The surface owner’s possession of the severed surface estate is not adverse to the owner of the mineral estate. Grissom , 79 S.W.2d at 621. When the claim is made to a severed mineral estate, the definition of “adverse possession” may be modified as follows: “Adverse possession” means an actual and visible appropriation of real property by drilling and producing oil and gas, commenced and continued under a claim of right that is inconsistent with and hostile to the claim of another person. Continuity of possession. Possession is “continuous” as long as (1) any tempo rary breaks in possession by the claimant are reasonable under the circumstances and (2) the claimant did not intend to abandon possession. Grayson v. Dunn , 581 S.W.2d 785, 788 (Tex. App.—Waco 1979) (citing Dunn v. Taylor , 113 S.W. 265, 267 (Tex. 1908)). Where there is a break in the continuity of possession, the claimant must show that possession was resumed within a reasonable time. Hardy v. Bumpstead , 41 S.W.2d 226 (Tex. Comm’n App. 1931). If continuity of possession is a disputed issue, an addi tional instruction may be included in the question. Tacking. “To satisfy a limitations period, peaceable and adverse possession does not need to continue in the same person, but there must be privity of estate between each holder and his successor.” Tex. Civ. Prac. & Rem. Code §16.023; Estrada v. Cheshire , 470 S.W.3d 109, 124–26 (Tex. App.—Houston [1st Dist.] 2015, pet. denied); Treviño v. Treviño , 64 S.W.3d 166, 172 (Tex. App.—San Antonio 2001, no pet.); First National Bank of Marshall v. Beavers , 602 S.W.2d 327, 329 (Tex. App.— Texarkana 1980, no writ). If possessory periods are tacked, consider whether modifi cation of the question (or additional questions) and an additional instruction are required.

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