pjc-oil-and-gas-2022-lib

A DVERSE P OSSESSION

PJC 301.4

Property identification and definition. In this question or the general instruc tions of the charge, the real property in question should be defined, including the spe cific surface or mineral estate at issue: “Property” means the [ insert definition, description, or identifica tion ]. Accrual. “The structure of the adverse possession statute indicates that the ‘cause of action’ refers to the suit to recover real property held by another in peaceable and adverse possession.” Marshall , 342 S.W.3d at 73. See Tex. Civ. Prac. & Rem. Code §16.024. The cause of action accrues when the adverse possession begins. Marshall , 342 S.W.3d at 73; see also Horton v. Crawford , 10 Tex. 382, 390–91 (1853); Waddy v. City of Houston , 834 S.W.2d 97, 103 (Tex. App.—Houston [1st Dist.] 1992, writ denied); Woolaver v. Texaco, Inc. , 638 S.W.2d 153, 155 (Tex. App.—Fort Worth 1982, writ ref’d n.r.e.); Crow v. Payne , 242 S.W.2d 824, 825 (Tex. App.—Amarillo 1951, no writ). For a claim to have accrued, the jury must find that possession began more than ten years before the cause of action was filed. Multiple limitations questions. If multiple limitations questions will be submit ted, consider whether the phrase “For this question” should precede any definition to clarify the requirements between statutes. Repudiation of title requirement. Other than by the fifteen-year combined lim itations period in Tex. Civ. Prac. & Rem. Code § 16.0265 , a cotenant may not adversely possess against another cotenant in the absence of repudiation of the rela tionship or ouster. See King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 756 (Tex. 2003); Todd v. Bruner , 365 S.W.2d 155, 160–61 (Tex. 1963); see also Marshall , 342 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:

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