pjc-oil-and-gas-2022-lib

A DVERSE P OSSESSION

PJC 301.5

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. 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 twenty-five years before the cause of action was filed.

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