pjc-oil-and-gas-2022-lib

PJC 301.4

A DVERSE P OSSESSION

[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 S.W.2d at 590. If acknowledgment is a disputed fact issue, an additional question or instruction may be necessary. Attorney’s fees. Tex. Civ. Prac. & Rem. Code §16.034(a)(1) provides for the recovery of attorney’s fees by a record title holder in a suit for possession of real prop erty, if successful against another party claiming adverse possession of the property. If the court finds that the adverse possessor’s claim was groundless and made in bad faith, the court shall award costs and reasonable attorney’s fees. Tex. Civ. Prac. & Rem. Code § 16.034(a)(1) . Without such a finding, the court may award costs and rea sonable fees. Tex. Civ. Prac. & Rem. Code §16.034(a)(2). The statute imposes demand requirements. Tex. Civ. Prac. & Rem. Code §16.034(b)–(c). The amount of reasonable attorney’s fees is generally a fact issue. See Transcontinental Insurance Co. v. Crump , 330 S.W.3d 211, 229–32 (Tex. 2010); City of Garland v. Dallas Morning News , 22 S.W.3d 351, 367 (Tex. 2000); Bocquet v. Herring , 972 S.W.2d 19, 21 (Tex. 1998); RDG Partnership v. Long , 350 S.W.3d 262, 277–78 (Tex. App.—San Antonio 2011, no pet.); Cullins v. Foster , 171 S.W.3d 521, 536 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). For a question on and additional discussion of attorney’s fees, see PJC 313.33.

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