

                                                             11th
Court of Appeals
                                                                  Eastland,
Texas
                                                                        Opinion
 
K.D. Griffin
Appellant
Vs.                   No.
11-02-00061-CV   B 
Appeal from Callahan County
Mark Duque and Patricia
Duque
Appellees
 
K.D.
Griffin, owner of record title to Lot 19, sued Mark Duque and Patricia Duque,
owners of Lot 18, for trespass when they rebuilt a building with part of the
building on his property.  Appellees
filed their answer and counterclaim, pleading several statutes of limitation.[1]  Appellant=s predecessor in title owned a building on Lot 19 which was slightly
north of the common boundary line, and appellees= predecessor in title owned a building on Lot 18  which had a common wall with appellant=s building. 
The dispute involves title and possession of this narrow strip of
land.  The  trial court granted appellees= motion for summary judgment that appellant Atake nothing@on his claim for trespass; the trial court also ruled that all Aother relief requested and not expressly
granted is denied.@  The effect of this ruling was to deny
appellant=s claim of trespass and to deny appellees= claim to title by adverse possession.  Appellant appeals. We reverse and remand.
                                                  Issue
Presented for Appellate Review
Appellant
presents only one point of error.  He
argues that the trial court erred in granting appellees= motion for summary judgment because Athere are genuine issues of material facts
which are contested.@
                                                               Factual
Background




Appellees= motion for summary judgment is supported by
several affidavits.  The first affidavit
is from appellees=
grantor who swears that he purchased Lot 18 in November of 1997, that he was
going to Arebuild the building@ which was located on that property, that the
Northern wall of his building Ahad a building attached,@ that it appeared that the buildings had been attached Afor many years,@ that he tore down parts of his building, and that no one ever disputed
the fact that he owned the property up to the wall of the building which is now
owned by appellant.
The second
affidavit is from a surveyor who authenticated his survey of the disputed strip
of land.  The survey shows an
encroachment on appellant=s lot of 0.10 foot on one end of the strip and 2.3 feet on the other
end.  The strip of land is 140 feet long,
and it contains approximately 168 square feet out of the south part of Lot 19.
The third
affidavit is from Rosa Hass who identified a picture of the two buildings and
said that the wall between the two buildings had been in the same place for Amore than thirty (30) years.@
The fourth
affidavit is from Elsa Bains who said that her grandfather had owned the
building which is located on appellant=s lot, that she had lived in that building from 1940 to 1952, and that
her mother had lived in that building until her death in 1972.  Bains states in her affidavit that the
northern wall of the building on appellees= lot had been in Athe same place where it is today since I can remember which is more
than forty (40) years@ and
that the Awall has continued to be the boundary between
the two buildings@ for
more than 40 years.
The fifth
affidavit is from appellees.  They state
that they purchased Lot 18 in May of 1998. 
Appellees attached to their affidavit copies of their title insurance
policy and the deeds under which they acquired title to Lot 18.
Appellant
urges in his response to the motion for summary judgment that there are Agenuine issues of material fact@ regarding appellees= claim of title by adverse possession.  Appellant points out that the deeds attached
to the motion for summary judgment refer to Lot 18 and that the disputed land
is in Lot 19.  We note that the title
insurance policy insures Lot 18 and that Aboundary lines, or encroachments or protrusions@ are exceptions from its coverage.
Appellant=s affidavit is attached to his response, and
it reads in relevant part as shown:




I am the owner in fee
simple of the entirety of Lot 19....The Defendants in this case have trespassed
upon said Lot 19.  The trespass
protrudes further than the strip of land claimed to be adversely possessed by
the Defendants.  I gave notice to
Defendants that I claimed all of Lot 19 before said trespass occurred.  The building which occupied Lot 18 was torn
down.  A new structure was erected and
attached to my property on Lot 19 without my permission.
 
                                                                        Controlling Law
Summary
judgment under TEX.R.CIV.P. 166a is proper when there is Ano genuine issue as to any material fact.@ Appellant=s response to the motion for summary judgment raises an issue as to
whether the mistaken location of the common wall and its subsequent use was
sufficient to change the boundary between the two lots.
Appellant
cites the early case of Fewell v. Kinsella, 144 S.W. 1174, 1178 (Tex.Civ.App. -
San Antonio 1912, writ ref=d), where the court said:
A party wall need not
necessarily be upon both sides of the division line equally, and it may
be...altogether upon the property of one of the owners.  The right of each adjoining owner to the use
of a party wall erected for the use of both is to the use of the wall and to an
easement of the other=s
ground for the purposes of the wall.
 
                                                            *   *  
*
 
Evidence, therefore, that
a wall was constructed by adjoining owners as a party wall, without evidence of
an agreement between them as to the division line, is not sufficient to
change the true boundary line. 
(Emphasis added)
 
Appellees cite several authorities in support of
their claim to title by adverse possession; however, the trial court denied
their counterclaim.   
Appellees
also cite 17 HERBERT S. KENDRICK & JOHN J. KENDRICK, JR., TEXAS TRANSACTION
GUIDE ' 75.41 (2001)  which states that party walls Amay be created by
contract,@ that a prescriptive easement in a party wall
Amay be acquired by adverse possession,@ and that use of a party wall for a long
period of time Amay raise a presumption that the wall was originally meant to be a
party wall.@ 
(Emphasis added)  If there had
been a conventional trial, the trial court could have found that the wall was
originally meant to be a party wall. 
The summary judgment proof is not conclusive that appellees had the
right to encroach upon appellant=s lot and to attach their building to his building. 
                                                                This Court=s Ruling
The
judgment of the trial court is reversed, and the cause is remanded.
 
BOB
DICKENSON
SENIOR
JUSTICE
 
October 24, 2002
Publish. 
See TEX.R.APP.P. 47.3(b).   
Panel consists of:  Arnot, C.J., and
McCall, J., and Dickenson, S.J.[2]




[1]See TEX. CIV. PRAC. & REM. CODE ANN. '' 16.003, 16.004, 16.024, 16.025, 16.026, 16.027, &
16.030 (Vernon 1986 & Supp. 2002).


[2]Bob Dickenson, Retired Justice, Court of Appeals, 11th
District of Texas at Eastland sitting by assignment.


