                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-18-00125-CV


JAMES DANIEL ROBERTS AND                                           APPELLANTS
SHERYL A. GROSS

                                        V.

LINDA RATLIFF, ROBERT                                               APPELLEES
RATLIFF, AND LEONARD RATLIFF

                                     ----------

           FROM THE 271ST DISTRICT COURT OF WISE COUNTY
                    TRIAL COURT NO. CV15-08-554



                                     ----------

                        MEMORANDUM OPINION1

                                     ----------

      James Daniel Roberts and Sheryl A. Gross (the Couch Heirs) appeal from

the trial court’s final judgment (1) granting summary judgment for Linda and

Robert Ratliff (the Adverse Claimants) on their trespass to try title suit against


      1
       See Tex. R. App. P. 47.4.
the Couch Heirs and on the Couch Heirs’ counterclaims against them and also

(2) granting summary judgment for Leonard Ratliff on the Couch Heirs’ third-party

claims against him. Because we hold that the Adverse Claimants provided some

evidence of adverse possession but not conclusive proof, and because the

summary judgment motion on the Couch Heirs’ counterclaims and third-party

claims turned on whether the Adverse Claimants prevailed on their adverse

possession claim, we reverse the trial court’s judgment.

                                     I. Background

      Leonard and his wife Margie, along with W. Z. Willbanks and his wife

Irene, bought 422.17 acres of land in Wise County (the Ratliff Tract) from Marvin

and James Petty in 1962. The Ratliff Tract was located to the east of what is now

known as County Road (CR) 4598.2 At that time, Elizabeth Lucille Couch (Lucille)

owned land to the west of CR 4598 (Couch Tract). She also had record title to an

approximately 6.54 acre strip of land running from north to south along the

eastern edge of CR 4598 that immediately abutted the Ratliff Tract (the Disputed

Property). The Pettys’ deed to the Ratliff Tract did not include the Disputed

Property in its legal description.

      Lucille died in May 1998. In 2001, Derline Roberts, individually and as

executor of Lucille’s will, conveyed an undivided 5/12th present interest, and a

1/12th remainderman interest, in the Couch Tract and the Disputed Property to

      2
      CR 4598 was previously known as CR 4690 and is also called Garvin
Road. The terms are used interchangeably in the record.

                                         2
each of the Couch Heirs and retained a 1/6th life interest. At that time, the entire

Couch Tract––described as 320 acres in the 1932 deed to Lucille––was

described as the surface estate to 312 acres of land3 and the mineral interest in

320 acres of land. When Derline passed away,4 each of the Couch Heirs thus

became owner of an undivided 1/2 interest in the Couch Tract and, if not already

adversely possessed by the Adverse Claimants at that time, the Disputed

Property. See, e.g., Nussbaum v. Nussbaum, 292 S.W. 189, 191 (Tex. Comm’n

App. 1927).

      During the 2000s, the Couch Heirs leased all of their 312 acres of surface

estate to various third parties for hunting and grazing. Their unrecorded leases

defined the leased premises as the 312 acres of land described in the deed to

them from Derline.

      Around 2008, FPL Energy Producers decided to build a pipeline in the

area and sought permission for an easement to locate parts of the pipeline on the

Couch Tract, Ratliff Tract, and Disputed Property. Leonard granted FPL an

easement on the Disputed Property and also signed an affidavit of adverse

possession claiming ownership of the Disputed Property, which FPL filed in the

Wise County property records. That affidavit reads as follows:

      3
       Gross explained in her summary judgment affidavit that eight acres of the
surface estate were conveyed for the construction of Highway 114, which runs
through the Couch Tract. That conveyance is not included in the record, and
nothing in the record shows when this conveyance occurred.
      4
       The record does not indicate when this occurred.

                                         3
      I hereby swear and affirm that I have openly, notoriously,
      continuously and adversely possessed the following described
      property without interruption since 1962 to the present date and to
      the exclusion of all others:

            A tract of land in the Van Zandt Survey, Abstract 1182, Wise
      County, Texas located on the east side of County Road 4598
      (formerly County Road 4690) and immediately adjacent to 104 acres
      owned by myself and the Margie M. Ratliff Estate recorded in
      Volume 662, Page 891 of the Official Public Records of Wise
      County, Texas.

      My claim of title to this property is based upon continuous
      possession and use since 1962.

      I have paid the ad valorem taxes on this property continuously since
      1962.

      This Affidavit is given to FPL Energy Producer Services, LLC to
      prove ownership for the purposes of laying, constructing,
      maintaining, operating, repairing, replacing, protecting, relocating,
      altering, removing or abandoning in place one or more pipeline(s). I
      hereby agree to indemnify and hold harmless FPL Energy Producer
      Services, LLC should any matter stated herein be proved false or
      misleading.

In 2012, Leonard conveyed the Ratliff Tract, which had been in a family trust, to

the Adverse Claimants.

      In 2015, the Couch Heirs obtained a survey of the Couch Tract and

Disputed Property and, as a result, asserted ownership over the Disputed

Property based on their record title. The Adverse Claimants sued Sheryl,5

seeking title to the Disputed Property through adverse possession under either

the ten or twenty-five year limitations periods in the Civil Practice and Remedies


      5
       The record is unclear as to why they sued only Sheryl.

                                        4
Code. Tex. Civ. Prac. & Rem. Code Ann. §§ 16.026, .027, .028 (West 2002).

Roberts intervened in the suit. The Adverse Claimants then amended their

petition to include both of the Couch Heirs as defendants. Both Couch Heirs

eventually filed a joint amended pleading disputing the Adverse Claimants’

trespass to try title claims and bringing counterclaims for trespass to try title,

slander of title, collusion to defraud and deceive, and the filing of a fraudulent

claim against real property. The Couch Heirs also sought a declaratory judgment

that Leonard’s 2009 adverse possession affidavit is defective and no evidence of

adverse possession. The Couch Heirs named Leonard as a third-party

defendant, bringing claims against him for collusion to defraud and deceive and

for filing a fraudulent claim against real property.

      The Adverse Claimants and Leonard filed a joint traditional motion for

summary judgment. The Adverse Claimants sought summary judgment as a

matter of law on their claims against the Couch Heirs and the Couch Heirs’

claims third-party claims against them, and Leonard sought summary judgment

on the Couch Heirs’ claims against him. All three contended that the Couch

Heirs’ claims were barred by limitations. After considering the Adverse Claimants’

and Leonard’s summary-judgment evidence and the Couch Heirs’ responsive

evidence, the trial court granted all of the relief requested in the joint motion and

rendered a final judgment on all claims.

      The Couch Heirs bring two issues in this appeal: their first issue challenges

the summary judgment on the Adverse Claimants’ claims, and their second issue

                                           5
challenges the summary judgment on their counterclaims against the Adverse

Claimants and third-party claims against Leonard.

                               II. Standard of Review

      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the

light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could and disregarding evidence contrary to the

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,

Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).

      A plaintiff is entitled to summary judgment on a cause of action if it

conclusively proves all essential elements of the claim. See Tex. R. Civ. P.

166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). Likewise, a

defendant is entitled to summary judgment on an affirmative defense if the

defendant conclusively proves all the elements of the affirmative defense. Frost

Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010), cert. denied, 562

U.S. 1180 (2011); see Tex. R. Civ. P. 166a(b), (c). To accomplish this, the

defendant-movant must present summary judgment evidence that conclusively

establishes each element of the affirmative defense. See Chau v. Riddle, 254

S.W.3d 453, 455 (Tex. 2008).



                                        6
               III. Adverse Claimants’ Trespass to Try Title Claims

      In their first issue, the Couch Heirs contend the trial court erred by granting

summary judgment on the Adverse Claimants’ trespass to try title claim, in which

they claim title by adverse possession.

A.    Applicable Law

      A plaintiff may prevail in a trespass to try title action by establishing title by

limitations, i.e., adverse possession. Tex. Prop. Code Ann. § 22.001 (West

2014); Martin v. Amerman, 133 S.W.3d 262, 265 (Tex. 2004); Ellis v. Buentello,

No. 01-12-00098-CV, 2012 WL 3528009, at *4 (Tex. App.––Houston [1st Dist.]

Aug. 16, 2012, no pet.) (mem. op.). A claim for adverse possession requires six

essential elements: (1) actual and visible appropriation and possession of the

disputed property (2) that is open and notorious, (3) that is peaceable, (4) that is

commenced under a claim of right, (5) that is adverse and hostile to the claim of

the owner, and (6) that is consistent and continuous for the duration of the

statutory period. Tex. Civ. Prac. & Rem. Code Ann. § 16.021(1) (West 2002), §§

16.026–.027; Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990) (op. on reh’g);

Wells v. Johnson, 443 S.W.3d 479, 489 (Tex. App.––Amarillo 2014, pet. denied).

      A claimant asserting adverse possession under the ten-year limitations

statute6 must show, by a preponderance of the evidence, cultivation, use, or



      6
       Although the Adverse Claimants pleaded application of both the ten and
twenty-five year statutes, they argue primarily that adverse possession title
vested in Leonard after ten years. Regardless, the twenty-five year statute
                                          7
enjoyment of the property “in peaceable and adverse possession” for the entire

ten-year period. See Tex. Civ. Prac. & Rem. Code Ann. § 16.026; Mead v.

RLMC, Inc., 225 S.W.3d 710, 715 (Tex. App.––Fort Worth 2007, pet. denied).

Although title to land by adverse possession may be shown as a matter of law

when the facts are conclusive, see King Ranch, Inc. v. Chapman, 118 S.W.3d

742, 757–58 (Tex. 2003), cert. denied, 541 U.S. 1030 (2004), adverse

possession is normally a fact question, Bywaters v. Gannon, 686 S.W.2d 593,

595 (Tex. 1985). Because adverse possession is a harsh doctrine, the law

requires that a party’s intention to appropriate property via adverse possession

be “very clear.” Tran v. Macha, 213 S.W.3d 913, 915 (Tex. 2006).

      “[T]he mere grazing of land incidentally enclosed as a result of the

construction of fences built for another purpose does not constitute possession

that will ripen into title by limitation. The adverse claimant who relies upon

grazing only as evidence of his adverse use and enjoyment must show as part of

his case that the land in dispute was designedly enclosed.” McDonnold v.

Weinacht, 465 S.W.2d 136, 141–42 (Tex. 1971). A fence is not considered

designedly enclosed if it existed before the adverse claimant took possession of

the land and the claimant fails to demonstrate the purpose for which it was

erected; in that case, the fence is considered a “casual fence.” Rhodes, 802

S.W.2d at 646; Orsborn v. Deep Rock Oil Corp., 267 S.W.2d 781, 786 (Tex.

requires the same proof during the applicable time period as the ten-year statute.
See Tex. Civ. Prac. & Rem. Code Ann. §§ 16.026, 16.027.

                                        8
1954). Evidence that a person has merely repaired or maintained a casual fence,

even for the express purpose of keeping the person’s animals within the

enclosed area, generally does not change a casual fence into a designed

enclosure. Rhodes, 802 S.W.2d at 646; Mead, 225 S.W.3d at 715. This is so

because Texas has always treated unenclosed lands as commons for grazing

livestock; therefore, the use of unenclosed lands for grazing livestock is allowed

by law. Mohnke v. Greenwood, 915 S.W.2d 585, 593 (Tex. App.––Houston [14th

Dist.] 1996, no writ). Courts have also found that cutting weeds, deer hunting,

fishing, gardening, camping, clearing trees, and using the land for occasional

storage do not necessarily establish a designed enclosure. Id. at 594; see NJ

Williams Family P’ship, Ltd. v. Winn, No. 03-07-00724-CV, 2010 WL 142879, at

*5–6 (Tex. App.––Austin Jan. 15, 2010, no pet.) (mem. op.); Vaughan v.

Anderson, 495 S.W.2d 327, 331–32 (Tex. Civ. App.––Texarkana 1973, writ ref’d

n.r.e.). But cf. Reid Estates Civic Club v. Boyer, Inc., No. 01-09-00282-CV, 2011

WL 6938513, at *11 n.10 (Tex. App.––Houston [1st Dist.] Dec. 29, 2011, no pet.)

(mem. op.) (“[R]ecreational activities can be sufficient to establish hostile use

with respect to land that both parties concede is only suitable for recreational

pursuits.”).

       But because adverse possession is a fact-specific doctrine, exceptions

apply. An adverse claimant may prove that he so changed the character of a

casual fence that it has become a designed enclosure; thus, evidence of such a

substantial modification can be sufficient to support a finding of adverse

                                        9
possession. Rhodes, 802 S.W.2d at 646; Mead, 225 S.W.3d at 715. Additionally,

proof of a designed enclosure is not necessary when the claimant proves

sufficient nongrazing use of the disputed land “such that the true owner would

have notice of the hostile claim.” Mead, 225 S.W.3d at 715–16 (quoting Perkins

v. McGehee, 133 S.W.3d 287, 292 (Tex. App.––Fort Worth 2004, no pet)).

B.    Summary Judgment Evidence

      The Adverse Claimants relied primarily on affidavit testimony to establish

their claims. The Couch Heirs’ responsive evidence raises a genuine issue of

material fact as to the nature of Leonard’s use and possession of the Disputed

Property beginning in the late 1980s and early 1990s, but because the Adverse

Claimants rely primarily on the ten-year statute, we will focus our review on the

evidence pertaining to that time period.

      1.    Adverse Claimants’ Evidence

      In his affidavit, Leonard averred that he is “thoroughly familiar” with the

Disputed Property, which he contends was included with the 422.17 acres of land

that he, Margie, and the Willbankses purchased in June 1962 from the Pettys

and which he eventually sold to the Adverse Claimants.7 According to Leonard,

when he bought the Disputed Property and the Ratliff Tract together, a fence

formed the western boundary of the Disputed Property, which is not separated


      7
        The deed from the Pettys is included in the summary-judgment record.
The Ratliffs do not dispute that the legal description of the Disputed Property is
not included in the legal description in that deed.

                                           10
from the Ratliff Tract by any fence. That fence runs along the eastern boundary

of CR 4598, also known as Garvin Road and formerly known as CR 4690. There

was a gate in the fence serving as the only entrance to both the Disputed

Property and the Ratliff Tract. Leonard averred, “[T]he [Disputed Property] . . .

has been under my fence since 1962.” Leonard said that his family and the

Willbanks family had maintained the fence from 1962 to January 5, 2017, the

date of his affidavit. He also averred that “we”8 claimed all of the land under the

fence as had the Pettys.

      According to Leonard, the Couch Tract is “immediately across CR 4598”

from the Disputed Property and the Ratliff Tract; thus, “[a]ny activity on the

[Disputed Property] could easily be seen from the road and [the Couch Heirs’]

land.” In 1971, the United States Department of Agricultural Soil Conservation

Service (A.S.C.S.) built a livestock watering pond on the Disputed Property,

which Leonard co-operated. Leonard averred that because the pond was very

close to CR 4598, “[a]nyone in the area could see that [he], along with the

A.S.C.S. were making valuable improvements to the land.” Bulldozers, other

equipment, and construction crews were present “for a number of weeks while

the pond was being constructed,” and no one objected or claimed the land was

theirs. Leonard and his family have used the pond “exclusively . . . for watering

livestock and recreation since 1972.”

      8
       This pronoun presumably refers to Leonard, Margie, and both of the
Willbankses.

                                        11
      Leonard further averred that after the pond was built, he placed no

trespassing signs on the fence because people were crossing the fence and

fishing in the pond. Because travelers on CR 4598 would shoot at Leonard’s

signs, in 1972 or 1973, Robert put up a larger no trespassing sign that stated:

“Private Property, NO Hunting and Fishing, TRESPASSERS WILL BE

PROSECUTED.” Attached to Leonard’s affidavit is a photograph of that sign,

which Leonard averred was, “[a]lthough somewhat rusted, . . . still on the fence

running along the east side [of] CR 4598 and the west boundary of the” Disputed

Property.9 Leonard also attached a photograph of the pond.

      The attached photographs of the fence along the west side of the Disputed

Property show that it is a barbed wire fence with an elongated, metal swinging

gate. The record does not indicate when any of the photographs were taken.

      Leonard averred that since 1962, he and his family had “run cattle,

sheep[,] and goats” on the Disputed Property. Since that time they had been “in

peaceable possession” of the Disputed Property, which “has been open and

obvious to everyone and adverse to any other claim of ownership.” Neither he,

his wife, nor the Adverse Claimants “knew any owners of the land” until the

Couch Heirs claimed ownership in 2015.

      The Adverse Claimants also provided an affidavit from Harry Lamance, a

Wise County Commissioner for Precinct 3 since 2011. Lamance averred that he


      9
      The sign appears aged and extremely weathered.

                                      12
is “very familiar” with CR 4598, that his family had resided in that area for over

sixty years, and that he had traveled that road “many times over the last sixty-five

years.” In addition, CR 4598 is in Lamance’s precinct, and he is responsible for

maintaining it. Lamance averred that

      •    the road has been in the same location for at least the last sixty-five

           years,

      •    the only changes to the road that he is aware of have been a

           resurfacing from gravel to a hard surface and replacement of an old

           bridge with a culvert,

      •    there has always been a good fence capable of turning cattle along the

           east side of the road,

      •    there is a gate in the east fence line which furnishes an entrance to the

           property, and

      •    “[t]he property enclosed by the fence was, and is occupied by the Ratliff

           family, Leonard Ratliff and Margie Ratliff, and currently Robert Ratliff

           and Linda Ratliff, for well over twenty-five years.”10

      Robert also provided an affidavit. In it, he averred that the fence along the

western boundary of the Disputed Property was in that location when Leonard,


      10
        Because Lamance executed his affidavit in 2017, this evidence that the
reputation in the community was that the Ratliffs owned the Disputed Property
extends only to 1992. Thus, we will not consider this part of Lamance’s affidavit
in our analysis of whether the Ratliffs conclusively proved adverse possession
under the ten-year or twenty-five year statutes.

                                           13
Margie, and the Willbankses bought the Ratliff Tract in 1962. According to

Robert,

      The entrance to the land was through a gate in the fence along the
      east right of way of CR 4598. That gate was the exclusive entry to
      the land from 1962 and before until 1982, when my wife and I
      purchased some land adjoining. The Mitchell Corporation built an
      oilfield road on the land me and my wife purchased. We used both
      the oilfield road and the gated entrance off CR 4598 to access the
      [Disputed Property]. We continued to access through the gate for a
      number of years after 1982. The gate is still in place and useable.

             . . . In 1969 my father and I worked on the fence along the
      east right of way of CR 4598. We replaced a number of cedar post[s]
      with steel T-posts and put in steel pipe H-braces. The H-braces and
      many of the T-posts are still in place. The location of the fence was
      open, obvious and adverse to anyone claiming the [Disputed
      Property].

      Robert also averred that the pond on the Disputed Property was stocked

with fish and that he, Linda, and their family had fished and enjoyed the pond. He

put no trespassing signs along the fence because “poachers” had been fishing

the pond, and in 1972, he built and placed a large no trespassing sign “on the

fence close to the pond.” According to Robert, that sign was still in place when he

signed his affidavit in January 2017.

      Robert averred that he and his family had run cattle, sheep, and goats on

the Disputed Property since he was in high school,11 that they had “mowed and



      11
         Nothing in the record indicates how old Robert was when he executed
his affidavit; therefore, we cannot say, as do the Adverse Claimants, that his
statements that certain events had occurred since he was in high school refer to
1962.

                                        14
maintained” the Disputed Property, and that he had hunted and trapped on the

Disputed Property. According to Robert,

      My family and I have continually held the [Disputed Property] in
      peaceable and adverse possession since 1962. We have occupied,
      used and enjoyed the [Disputed Property] since 1962. In 2015, some
      53 years later, Defendant [Sharyl] Gross claimed an interest in the
      [Disputed Property]. Neither my wife, nor I ever knew any persons
      claiming the land until Defendant, [Sheryl] A. Gross claimed
      ownership in June, 2015. At no[] time from 1962 to the present did
      any of us ask for or receive permission to use the land. This was
      [the] first and only notice that someone other than my family claimed
      an interest in the land.

      2.    Couch Heirs’ Evidence

      The Couch Heirs attached responsive evidence tracing their inheritance of

their undivided 1/2 interests in the Couch Tract––and record title to the Disputed

Property––from Lucille to Derline to them. The Adverse Claimants do not dispute

for summary judgment purposes that the Disputed Property is included in the

legal description of the deed to Lucille and the deed to the Couch Heirs from

Derline. The Couch Heirs also attached evidence showing that they paid the

2016 property taxes on the Disputed Property, had leased all of their 312 surface

acres for grazing purposes beginning as early as 2012, and had also leased

those acres for hunting since 2009.

      In her summary judgment affidavit, Gross averred,

            . . . My entire life,[12] although I am not able to live there, the
      land has been continuously leased by us and our ancestors to

       Nothing in the record indicates Gross’s age except that in her ex-
      12

husband’s affidavit, he avers that they were married from October 12, 1981 to
February 22, 2008 and had a son during their marriage. Thus, we can infer that
                                         15
      individuals who utilized the entire property, including the [Disputed
      Property], for grazing and hunting who were to be responsible for
      maintaining fences, but it was never a concern as to the Ratliff[]s
      since we shared a stock pond.

            . . . Further, we have been paying taxes on approximately 312
      acres (320 minus the land taken for Hwy 114) for approximat[e]l[]y
      84 years, including 2016 just paid.

             . . . During my great aunt Lucile’s[13] lifetime, I believe Leonard
      Ratliff had already begun living on the adjoining property. The 2
      families ran the properties as good neighbors and partners since
      each ran cattle. There was natural drainage going through a culvert
      under CR 4960 (Now CR 4598) onto our property on the east side of
      the [r]oad for several hundred feet flowing into a stock pond that
      straddled the property line with the Ratliff[]s – the pond is partially on
      both tracts.

               . . . Everyone who lives in the area knew that the old dirt road,
      which [i]s shown in the Maps of Wise Co. published in 2012, was
      known as CR 4960 [and] was no longer a straight line because it
      had washed out due to a gully in the land on the NE side of the road.
      . . . Although I don’t know what date it occurred, the original road ran
      more closely to the property line, but was rerouted causing the
      resultant portion of our property to be on the east side of the road. A
      partial fence line remains where the property line should be, as
      noted by Mr. Ballard upon his survey of the land, however, most . . .
      of the fence was removed, allowing Mr. Ratliff to encroach onto our
      property. This land was heavily wooded and cows did not typically
      enter the West or North side of the pond. . . .

             . . . Because the land on the North side of our property is
      heavily wooded, the fence line along CR 4960 was very difficult to
      get to for maintenance. The heavy brush along with an old fenceline
      kept any live stock on the West side of CR 4960 from escaping onto
      the road. While Mr. Jake Holloway was leasing the land in the early

she was at least close to eighteen years old in 1981. See Tex. Fam. Code Ann. §
2.003 (West Supp. 2017).

       Although the Couch Heirs use the spelling “Lucile” in their affidavits, we
      13

use “Lucille” because that is the spelling used in the conveyance documents.

                                         16
1990’s, my ex-husband, Rick Lucier, and a good friend, Kevin
Adams, went down to clear the fence line along CR 4960 where
some of the fence needed repair or replacing. Since cows were not
able to get out through the heavy brush, the fence repair was not a
high priority on either side of CR[]4960. The improvements to the
portion of land east of CR 4960 (including the [Disputed Property])
was not begun until the pipeline representatives came in to broker a
deal for placement of a gas pipeline through our property and [the]
Ratliff’s in the summer and fall of 2008.

        ....

     . . . Our family built and maintained the fencing to make sure
cows didn’t get out on the road and protected our property rights. It
was NOT built to accommodate the Ratliff[]s by fencing their cows in.

        ....

       . . . We were not absent owners with my son Nick living on the
property for a time and me and my brother, with our relatives and
friends, coming to use the property . . . for recreation, as well as
constantly graze leased and leased for hunting. We have
continuously used and occupied the property.

Roberts also provided an affidavit, in which he averred,

      . . . . I grew up going to this Property [the 312 acres] and
remember from even as a child[14] . . . that at one time the road went
around the outer edge of our entire acreage[,] then the road in the
northeast corner was at some point altered cutting off a portion of
the our [sic] property. Still we kept not only the west side of now CR
4598 running north of Hwy 114 but also the east side of the road so
the cows would not get on the road. I always knew we had a portion
of property on that side of the road as well.

       . . . As I recall there was fencing on the eastern boundary of
     [15]
your     property but due to the heavy trees one could not get to it
including any cows or other farm animals, and the pond was always

 Once again, the record does not indicate Roberts’s age.
14


 In context, it appears that this word was intended to be “our.”
15



                                 17
known to straddle our property and [the] Ratliff’s, possibly built with
possibly then my father or my great aunt Lucile discussing it.

      . . . As I also recall, originally the road was gravel[,] then at
some point more recently it was paved since it kept washing out.
Some concrete was also put in some of the ditches to shore up the
road.

     . . . During the 1970s, as Ratliff points out, there was a pond
dug which benefitted both adjoining property owners – the cows
would share the pond. There was no need to restrict their
movements since there were heavy woods on either side of the
pond which actually still have fencing partially there in parts and the
woods acted as a fence for the rest. I don’t ever recall even seeing
or meeting the Ratliff[]s until seeing them in Court when this lawsuit
was begun.

       . . . During the 1980’s, Mr. Holloway began leasing the ‘farm’
(the property) for cattle grazing. He utilized ALL of the property
including the portion now being claimed by the Ratliff[]s. And as a
fence builder part of his lease was to maintain the fencing around
the perimeter. In fact, Mr. Holloway was a friend of the Ratliff’s and
they both ran cattle together sharing the pond.

      . . . Also at that time period, there was a culvert under the road
which at some point got paved that could be used for running cows
back and forth without crossing the road, which is possibly another
reason we kept both sides fenced.

      . . . Our family built the fencing on BOTH SIDES of now CR
4598 and maintained it. The eastern boundary was all grown up with
trees creating a fence between the tracts which worked until more
recently when the pipeline company cleared some of the acreage
making way for their pipeline to go through.

     . . . During this whole [unspecified] time there was NOT posted
any NO Trespassing signage on the fences that I recall until
sometime more recent after the pipeline went in.

      . . . Going into the 1980’s, my then brother in law, Rick Lucier,
would go to the property as would I to enjoy camping out and using
the property for recreation – hunting and fishing, etc. This included


                                  18
      staying at times on the [D]isputed [Property], during which no one
      approached us or asked us to leave.

            ....

            . . . At all times that I can recall, our property on the east side
      of CR 4598 has been fenced along the roadway by us AND was
      maintained by us (and those that did grazing of cattle on it[)]. . . .

            . . . There was NO No Trespassing signs on the fencing that I
      saw until the one put on the new fencing now in place. I do not
      believe the Ratliff[]s have open[ly], notoriously or adversely occupied
      our property.

      The Couch Heirs also provided an affidavit from Lucier, Sheryl’s ex-

husband, in which he averred

      • that he was familiar with the Disputed Property,

      • that he had gone with his son to the Couch Tract or met him there “many

times,”

      • that “[d]uring all times that [he] visited the property, including the

[Disputed Property, he] witnessed no occupation by any people on the acreage

nor cattle or other farm animals to graze on the acreage,”

      • that during the 1980s, CR 4960 was a gravel road that had washed out

and was rerouted and paved at some point, which required “the need for

addressing the fencing on both sides of the road,”




                                         19
      • that around 1990-91, he, Holloway, and Kevin Adams took down,

replaced, and repaired the fencing on both sides of Garvin Road and that the

repairs were done for the Couch Heirs because it was “THEIR fence,”16

      • the Couch Heirs’ true east property line “had a thicket of trees and

separated the properties of [the Couch Heirs] and Ratliff completely so any cows

could not get through,”

      • during “most of the 1980’s and on into the 90’s,” he went with church

groups on numerous campouts on the Disputed Property, “staying overnight or

full weekends without interruption,’

      • “[f]or all of this [unspecified] period, [he] installed “no trespassing[”] signs

on the fencing along the east side of Garvin Road, not the Ratliff[]s,” and

      • since the 1980s, he had visited the Couch Tract on occasion and had

personally seen no evidence that Leonard or the Adverse Claimants were

“exercising dominion and control over the [Disputed Property] in any fashion[,]

and the east line was unaccessible [sic] for people or cattle to penetrate the

acreage now claimed.”

      Finally, the Couch Heirs provided an affidavit from Harold Ballard, who

performed a survey on their behalf in January and February 2015. Ballard

averred that after research, he determined that the Adverse Claimants did not

appear to be paying taxes on the property, nor did they have record title to it.

      16
         The evidence shows that the Couch Heirs did not own the Couch Tract at
this time.

                                          20
Additionally, he “noted that the east fence line had been cleared out[,] but [he]

found traces of it still existing,”17 and he noted “several locations where the

original fencing was found embedded in trees to verify where the true eastern

property line was of the [Couch Heirs’] property.”

      2. Analysis

      The Adverse Claimants rely primarily on the supreme court’s opinion in

Butler v. Hanson, 455 S.W.2d 942, 943–46 (Tex. 1970), and this court’s opinion

in Perkins, 133 S.W.3d at 291–93, for their contention that they conclusively

proved the elements of adverse possession. But the facts in this case are

distinguishable from the facts in those cases. Here, the Adverse Claimants did no

more than show that a fact issue exists on all of the elements of adverse

possession.

      Butler involved title to ranch land in Glasscock County. 455 S.W.2d at 943.

The evidence showed that beginning in at least 1932, the Hansons––who owned

record title to land in Section 46––had continuously grazed livestock to a fence

line, located in Section 3 immediately to the south of Section 46. Id. at 943–44.

The original three-strand barbed wire fence had been in the same location since

at least 1914, and in 1934, the Hansons placed a net fence around their entire

ranch, including the fence located on Section 3 because it was “a better fence to


      17
         In context, this sentence appears to refer to the traces of an old fence
line that may have at one point separated the Disputed Property from the Ratliff
Tract, not to the barbed wire fence along the eastern edge of CR 4598.

                                        21
hold sheep.” Id. at 944. Between 1949 and 1952, Hanson “rebuilt” the fences, put

new fence posts in between the old posts, and continuously maintained them. Id.

Hanson regarded the fence as his southernmost property line, as did Hanson’s

tenant from 1932 to 1952 and the Section 3 tenant from 1951 to 1963. Id. at 944–

945. The general reputation in the community was that Hanson owned all of the

land up to the fence, which was known as the Hanson Place. Id. at 945.

      The supreme court held that this evidence was sufficient to support a jury

verdict for Hanson and that the fence located on Section 3 was not a casual

fence. Id. The court distinguished the facts from Orsborn because the Hanson

tracts were contiguous and operated as a unit, the livestock were continuously

grazed on the land in dispute, Hanson changed the character of the fence and

essentially “made it his own,” and tenants on both sides of the fence testified that

the reputation in the community was that the fence belonged to Hanson and all of

the land north of the fence belonged to him. Id. at 945–46.

      In Perkins, this court held that the evidence supported the trial court’s

judgment that the McGehees’ predecessor had obtained title to property under

the ten-year limitations period. 133 S.W.3d at 291–94. The evidence showed that

when the McGehees’ predecessor bought the land in 1982, a fence was already

located on adjacent land the Perkinses eventually bought. Id. at 292. But from

1982 to 1995, the ranch manager for the McGehees’ predecessor had “worked

on the fence several times a year,” “repaired the water gaps in three gullies along

the fence line[] as frequently as two or three times a year,” and made these

                                        22
repairs for the purpose of running cattle in the pastures that fronted the fence

line. Id. He further “cleared an area of trees to the north of the fence line and

planted and fertilized coastal Bermuda grass there for grazing.” Id. Finally, he

represented to the McGehees that the fence line was the southern boundary of

the ranch they bought. Id.

      This court concluded that the facts of Perkins were more akin to Butler

than to Orsborn and, thus, that the existing fence was not a casual fence. Id. at

292–93. There was evidence of constant grazing of the entire land owned by the

McGehees, which was fenced as a contiguous unit with the disputed property,

the McGehees’ predecessor modified the fence sufficiently to be considered his

own, and the general reputation in the community was that the land was owned

to the fence line. Id.

      Here, there is no evidence as to the reputation in the community regarding

the Disputed Property from 196218 to 1972 (Ten-year Period) or from 1962 to

1987 (Twenty-five-year Period); Lamance testified only as to the community

reputation for twenty-five years before 2017, that is, from 1992 to 2017. And

although there is evidence (1) that Leonard considered the fence on the east side

of CR 4598 his fence, (2) that he and Robert replaced posts in the fence in 1969

and thereafter maintained it, and (3) that the Disputed Property and the Ratliff


      18
       Limitations begins to run against a person with an adverse claim to land
when the person adversely enters the land. BP Am. Prod. Co. v. Marshall, 342
S.W.3d 59, 73 (Tex. 2011).

                                       23
Tract had been grazed as a contiguous unit since 1962, there is no evidence

regarding who originally built the fence along the east side of CR 459819 or that it

was connected to and part of a larger fencing system around the Disputed

Property and Ratliff Tract during either the Ten-year Period or Twenty-five-year

Period.20 See Mixon v. Clark, 518 S.W.2d 402, 406 (Tex. Civ. App.––Tyler 1974,

writ ref’d n.r.e.) (“In determining whether the fence is or is not a casual fence, we

must look to the whole fencing pattern and the use made of the fence, as well as

all the other facts and circumstances.”). That a gate in the fence was the only

entrance to the Ratliff Tract from 1962 to 1982 is some evidence of an intent to

enclose by a prior owner, and implies that the fence was part of a larger

enclosure, but is not conclusive proof of a designed enclosure if Leonard and

Lucille indeed shared use of the Disputed Property. And although Leonard

      19
         Indeed, Leonard’s own affidavit establishes that both the fence and the
gate predate his purchase of the Pettys’ property in 1962, which is as consistent
with an inference that the fence was Lucille’s as with an inference that it was the
Pettys’.
      20
        Evidence that a fence has always been used a certain way is not the
same as evidence of the purpose for which the fence was built. Mohnke, 915
S.W.2d at 593. Leonard’s maintenance of the fence unaccompanied by some
other act evidencing an intention to enclose the Disputed Property along with his
own––such as connecting other fencing around the Ratliff Tract to the fence––
distinguishes this case from other cases similar to Butler. See Heirs of Simmons
v. Bouligny, No. 13-09-00269-CV, 2010 WL 1619069, at *6–7 (Tex. App.––
Corpus Christi Apr. 22, 2010, no pet.) (mem. op.); Smith v. Fort Bend ISD, No.
A14-93-00289-CV, 1994 WL 26953, at *2 (Tex. App.––Houston [14th Dist.] Feb.
3, 1994, writ denied) (not designated for publication); King v. Inwood N. Assocs.,
563 S.W.2d 309, 313 (Tex. App.––Dallas 1978, no writ); Doyle v. Ellis, 549
S.W.2d 62, 63–64 (Tex. App.––Waco 1977, no writ); Mixon v. Clark, 518 S.W.2d
402, 406 (Tex. Civ. App.––Tyler 1974, writ ref’d n.r.e.).

                                         24
averred that he co-operated the pond on the Disputed Property, he did not say

with whom; he did not build the pond; and he did not state for whom the A.S.C.S.

built the pond. Finally, there is no evidence about the frequency of the grazing on

the Disputed Property during the Ten-year Period and Twenty-five-year Period.

       Further, although the Couch Heirs’ affidavits do not provide their respective

ages, they at least raise a fact issue as to the reputation in their family about the

ownership of the Disputed Property. Additionally, they show that at some point, a

fence had separated the Disputed Property from the Ratliff Tract, possibly

because CR 4598 was moved in that area, and that in the 1970s, cattle would

share the stock pond, which straddled the Disputed Property and Ratliff Tract.

Finally, the Couch Heirs raise a fact issue as to which family, or its tenants,

maintained the fence along the eastern edge of CR 4598, or whether they both

did.

       Thus, we hold that the facts in this case are more like the facts in Mead, in

which this court held that a genuine issue of material fact existed on the elements

of adverse possession that precluded summary judgment. In Mead, the trial court

had granted summary judgment for the record title holders, but this court

determined that the following evidence raised a fact issue on the elements of

adverse possession: (1) the purported adverse possessors had used the

disputed tract “regularly and continuously” for grazing and ranching “at all times”;

(2) the disputed tract was contiguous to and fenced within their land, which they

operated as a unit with the disputed tract; (3) their tenant had repaired the fence

                                         25
as needed over the years, adding and replacing posts, and adding, stretching,

and tying wire; and (4) neither party provided evidence about the reputation in

the community as to the true owner of the disputed tract. 225 S.W.3d at 719.

      Arguably, the no trespassing signs distinguish this case from other adverse

possession cases holding that similar evidence does not conclusively prove

adverse possession. See, e.g., Rhodes, 802 S.W.2d at 645–46; Parker v. Weber,

No. 10-16-00446-CV, 2018 WL 2248369, at *3–4 (Tex. App.––Waco May 16,

2018, no pet. h.) (mem. op.); Acrey v. Langston Land Partners, LP, No. 11-14-

00025-CV, 2016 WL 1725371, at *3–5 (Tex. App.––Eastland Apr. 29, 2016, no

pet.) (mem. op.); Mendoza v. Ramirez, 336 S.W.3d 321, 328–29 (Tex. App.––El

Paso 2010, pet. denied); Anderson v. Shaw, No. 03-08-00352-CV, 2010 WL

2428132, at *10–11 (Tex. App.––Austin June 18, 2010, no pet.) (mem. op.);

Hopkins v. State, No. 03-07-00253-CV, 2009 WL 3806160, at *6–8 (Tex. App.––

Austin Nov. 13, 2009, no pet.) (mem. op.); Harlow v. Giles, 132 S.W.3d 641,

647–50 (Tex. App.––Eastland 2004, pet. denied). But that evidence must be

considered in light of the evidence that the families shared use of the stock pond

in the 1970s and that the existing fence was built by the Couch Heirs’ family to

keep their own cattle off CR 4598. That Leonard placed no trespassing signs on

the fence by the pond could be consistent with either his exclusive intent to keep

Lucille and the Couch Heirs off the Disputed Property or an intent to keep all

those other than permitted grazers and users off the property. See Hopkins, 2009

WL 3806160, at *8 (noting that purported adverse possessor’s assertion to third

                                       26
party that he owned disputed land was not sufficient evidence of hostile

possession vis-a-vis record owner); see also Rick v. Grubbs, 214 S.W.2d 925,

927 (Tex. 1948) (citing authority for propositions that (1) to prove adverse

possession, a claimant must show that he “wholly excluded” the true owner and

(2) joint possession defeats an adverse possession claim). Accordingly, we

conclude that evidence about the no trespassing signs does not tip the scales of

the remaining evidence of adverse possession to conclusive proof. But cf. Click

v. Collins, 273 S.W.2d 90, 91–93 (Tex. Civ. App.––Galveston 1954, writ ref’d

n.r.e.) (holding evidence was sufficient to uphold jury verdict for adverse

possessor when, upon taking possession of land adjacent to the disputed tract,

he placed a fence around western side of his property, which connected with

existing fences to enclose his property into a unit with the disputed tract and

another adjacent property under one continuous fence; the enclosure was for the

sole purpose of enclosing the land; he grazed his cattle “indiscriminately” and

“continuously” within the enclosed area for twenty-six years; he initially repaired

and thereafter continuously maintained all of the fencing around the enclosed

area; and he posted no trespassing signs for twenty-six years––from 1925 until

the time of trial).

       Finally, there is conflicting evidence regarding who paid taxes on the

Disputed Property from 1962 through 2015.21 See Phillips v. Willy, No. 01-07-


       21
       In the 2009 adverse possession affidavit, Leonard averred that he had
paid the ad valorem taxes on the property “continuously” since 1962. Gross
                                        27
00159-CV, 2010 WL 337001, at *12 (Tex. App.––Houston [1st Dist.] Jan. 28,

2010, pet. denied) (mem. op.) (noting that although the payment of taxes on

property is some evidence of adverse possession, it is not conclusive proof);

Hopkins, 2009 WL 3806160, at *8.

      For these reasons, we hold that the trial court erred by granting summary

judgment on the Adverse Claimants’ claims against the Couch Heirs. We sustain

the Couch Heirs’ first issue.

       IV. Couch Heirs’ Counterclaims and Third-Party Defendant Claims

      Because the Adverse Claimants’ and Leonard’s summary judgment motion

on the Couch Heirs’ claims depends on the Adverse Claimants’ successfully

proving that title vested in them, and because we hold that the trial court erred by

determining that the Adverse Claimants conclusively proved so, we further hold


averred in her summary judgment affidavit that “we,” presumably her family, had
been paying property taxes on the 312 acres for approximately 84 years. Not
only are both of these assertions conclusory, but because they are directly
opposing, they can do nothing more than raise a fact issue in this context. Great
Am. Reserve Ins. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.
1965) (“Evidence which favors the movant’s position is not considered unless it is
uncontradicted.”). It is well-settled that a trial court may not grant a motion for
summary judgment if doing so requires it to determine the credibility of affiants or
the weight of their testimony. E.g., Gaines v. Hamman, 358 S.W.2d 557, 563
(Tex. 1962) (“It is not the purpose of the summary judgment rule to provide either
a trial by deposition or a trial by affidavit, but rather to provide a method of
summarily terminating a case when it clearly appears that only a question of law
is involved . . . .”); Gulbenkian v. Penn, 252 S.W.2d 929, 932 (Tex. 1952); cf. In
re Zimmer, Inc., 451 S.W.3d 893, 901 (Tex. App.—Dallas 2014, orig. proceeding)
(“A trial judge ruling on a motion for new trial based on affidavits of juror
misconduct alone cannot perform the critical function of assessing the credibility
of the affiants . . . .”).

                                        28
that the trial court erred by granting summary judgment on the Couch Heirs’

counterclaims against the Adverse Claimants and third-party claims against

Leonard. We thus sustain the Couch Heirs’ second issue.

                                V.    Conclusion

      Having sustained both of the Couch Heirs’ issues, we reverse the trial

court’s judgment, and we remand this case to the trial court.



                                                   /s/ Wade Birdwell
                                                   WADE BIRDWELL
                                                   JUSTICE

PANEL: WALKER, KERR, and BIRDWELL, JJ.

DELIVERED: August 9, 2018




                                        29
