pjc-oil-and-gas-2022-lib

A DVERSE P OSSESSION

PJC 301.6

Source of question and instructions. PJC 301.6 is derived from Tex. Civ. Prac. & Rem. Code §§16.021, 16.028; see also BP America Production Co. v. Marshall , 342 S.W.3d 59, 70–72 (Tex. 2011) (describing claim of right); Tran v. Macha , 213 S.W.3d 913, 914–15 (Tex. 2006) (discussing claim of right); Calfee v. Duke , 544 S.W.2d 640, 642 (Tex. 1976) (same); Orsborn v. Deep Rock Oil Corp. , 267 S.W.2d 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. 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 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.

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