                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


 DOYLE ANDERTON,                                §
                                                                No. 08-12-00212-CV
                             Appellant,         §
                                                                  Appeal from the
 v.                                             §
                                                                422nd District Court
 E. DOUGLAS LANE, DORIS S. LANE.                §
 LARRY D. LANE, TERI L. LANE,                                of Kaufman County, Texas
 KELLY L. LANE, AND LISA K. LANE,               §
                                                                  (TC#79946-422)
                             Appellees.         §


                                           OPINION

       Doyle Anderton appeals the trial court’s judgment in favor of E. Douglas Lane, Doris S.

Lane, Larry D. Lane, Teri L. Lane, Kelly L. Lane, and Lisa K. Lane (collectively referred to as

“Lane”), stemming from Lane’s trespass to try title suit.   In a single issue on appeal, Anderton

contends no legally sufficient evidence supports the trial court’s finding that Lane adversely

possessed a portion of the right-of-way.   We affirm.

                                       BACKGROUND

       Lane owns and resides on certain real property known as the Lane Family Farm, which is

located off County Road 324 in Kaufman County, Texas. There is an abandoned railroad

right-of-way located across the Lane Family Farm that Lane claims to have been in actual, open,
notorious, exclusive, hostile and adverse possession of since 1959. In June 2009, Lane learned

Anderton purchased the right-of-way from the railroad.     Anderton subsequently tried to sell the

right-of-way to Lane.

       In November 2009, Lane filed suit claiming adverse possession of the right-of-way.

After a bench trial on May 14, 2010, the trial court took the matter under advisement pending

additional briefing from the parties. On May 28, 2010, the trial court notified the parties that it

had determined that the right-of-way was adversely possessed by Lane and requested that a

proposed judgment be prepared in accordance with its ruling. The trial court subsequently

requested that Anderton provide a copy of a survey of the right-of-way that he had prepared prior

to the bench trial. Anderton declined to provide a copy of the survey and contended that the trial

court’s pending judgment would not be based on evidence that was submitted at trial as that survey

was not admitted into evidence. Lane submitted a revised proposed final judgment to the trial

court which included a legal description of the right-of-way that was “extrapolated from the

evidence…admitted [at trial].” Anderton objected to the revised proposed final judgment to

which Lane responded.

       In January 2012, Anderton filed a “Motion for Judgment” asserting that any judgment for

Lane would be improper because Lane failed to “tender evidence describing adequately the

property in dispute,” and that he was entitled to a take-nothing judgment. In February 2012, Lane

filed a motion to reopen evidence to allow the admittance of a survey of the disputed right-of-way.

Lane also filed a motion to sign judgment. After a hearing on the parties’ motions, the trial court,

sua sponte, granted a partial new trial on the issue of the legal description of the right-of-way.

The trial court concluded it would enter judgment in accordance with its 2010 letter ruling, and

included the legal description of the right-of-way contained in the survey offered into evidence at

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the 2012 hearing. On May 25, 2012, the trial court signed a final judgment that found Lane

owned all of the property by adverse possession, incorporated Lane’s 2012 survey of the property,

and quieted title to the property in Lane. This appeal followed.

                                                  DISCUSSION

         In his sole issue on appeal, Anderton asserts that “[n]either this court nor the trial court can

determine the precise boundaries of the ‘front’ part adversely possessed and the ‘back’ part that

it [did] not.” Appellant argues this Court should reverse the judgment and render judgment that

the Lanes failed to establish adverse possession as to “the back ‘pasture’ portion of the

right-of-way.”1

                                               Standard of Review

         A party seeking to establish title to land by adverse possession has the burden to prove

every fact essential to that claim by a preponderance of the evidence. Rhodes v. Cahill, 802

S.W.2d 643, 645 (Tex. 1990). Because Anderton did not have the burden of proof at trial, he must

show there is no evidence to support the trial court’s adverse finding. See Croucher v. Croucher,

660 S.W.2d 55, 58 (Tex. 1983). In considering a no-evidence issue, we view the evidence in the

light most favorable to the finding and disregard all evidence and inferences to the contrary.

Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001); Cont’l Coffee Prods. Co. v. Cazarez, 937

S.W.2d 444, 450 (Tex. 1996). If there is more than a scintilla of evidence to support a finding, we

must uphold it. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). More than a scintilla

of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by

reasonable minds about the existence of a vital fact. Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co.,


1
  In his brief, Appellant refers to the property in dispute as the “back pasture” portion of the right-of-way while Lane
refers to that same portion as the “northern” end of the right-of-way. We use Anderton’s designation in this opinion.

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77 S.W.3d 253, 262 (Tex. 2002).

                                     ADVERSE POSSESSION

       Adverse possession is an “actual and visible appropriation of real property commenced and

continued under a claim of right that is inconsistent with and is hostile to the claim of another

person.” TEX. CIV. PRAC. & REM. CODE ANN. § 16.021(1) (West 2002). To prevail on a claim of

adverse possession, a claimant must establish, by a preponderance of the evidence, (1) the actual

and visible possession of the disputed property; (2) that is adverse and hostile to the claim of the

owner of record title; (3) that is open and notorious; and (4) that is peaceable; (5) that is exclusive;

and (6) involves continuous cultivation, use, or enjoyment throughout the statutory period.

Kazmir v. Benavides, 288 S.W.3d 557, 561 (Tex.App. – Houston [14th Dist.] 2009, no pet.).

The parties do not dispute that the applicable duration in this adverse possession case is ten years.

See TEX. CIV. PRAC. & REM. CODE ANN. § 16.026(a) (West 2002).

       Anderton argues Lane used different parts of the right-of-way for different purposes.

Specifically, Anderton asserts Lane used the front portion of the right-of-way as a driveway and

the back portion as a pasture. Anderton concedes there is sufficient evidence to establish Lane

adversely possessed the front portion of the right-of-way. However, he maintains there was no

adverse possession of the part of the right-of-way that was used as a pasture for grazing livestock.

Anderton argues Lane’s only evidence concerning the back portion of the property is that Lane

used it for grazing livestock.

       In response, Lane maintains the evidence is legally sufficient to support the trial court’s

judgment that he adversely possessed the entire right-of-way. Lane further contends that, even

assuming that he used the “northern end” of the right-of-way solely for grazing, the evidence

shows he designedly enclosed the right-of-way by fencing in the entire family farm which

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included the “southern and northern terminal ends of the right-of-way[.]” Lane also argues that

even if there was insufficient evidence to establish that he designedly enclosed the right-of-way,

there was sufficient evidence showing “non-grazing use of the northern end of the right-of-way

such that the record owner would have notice of the hostile claim.”

       Under Texas law, use of land for grazing cattle, fails to establish adverse possession as a

matter of law, unless the fence used is a “designed enclosure” as opposed to “casual fences.” See

Rhodes, 802 S.W.2d at 646; McDonnold v. Weinacht, 465 S.W.2d 136, 141-43 (Tex. 1971).

Unless the claimant establishes he erected the fence with the purpose of enclosing the property at

issue, the fence is a “casual fence” rather than a “designed enclosure.” Rhodes, 802 S.W.2d at

646.

                                 The Evidence Presented at Trial

       At trial, Lane testified that he built a home on his property in 1959 and explained that the

railroad stopped running trains on the right-of-way in 1958. Lane used the right-of-way as a

driveway to get from County Road 324 to his house. According to Lane he used the right-of-way

without permission from the railroad. In order to use the right-of-way as a driveway, Lane had to

bulldoze a railroad bridge, spread gravel, and build up the elevation of the right-of-way.

       Lane explained there were no fences on the property when he built his home and started

farming the property. He testified that “[e]verything had to be fenced” and that he “erected the

fences.” Lane testified he placed a cattle guard on the property and installed a “swing gate” at

County Road 324 which he closed every night. The gate and fences were constructed to keep

cattle from leaving the property and for security at night. When asked if it was his testimony that

he fenced in the right-of-way, Lane responded “[t]hat [it] was up to the individual farmer to fence

his farm.”

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       Inside of the fences, Lane bailed hay on the right-of-way. He also grazed livestock and

farmed on the right-of-way.       Lane bulldozed and dammed the “canyon” portion of the

right-of-way and built stock ponds for the stock. The Lane family also used the stock ponds for

swimming. Lane also harvested gravel from the right-of-way.

       According to Lane, between 1959 and June 2009, he exclusively used the right-of-way

without objection from anyone. He agreed that if the railroad had bothered to look at the property

for the last fifty years, it would have seen him using the entire right-of-way because he was

farming, ranching, and living on the right-of-way.

       When viewed in a light most favorable to the verdict, more than a scintilla of evidence

exists that Lane adversely possessed the entire right-of-way for the requisite statutory period.

City of Keller, 168 S.W.3d at 822. The evidence shows that Lane constructed a home in 1959 and

utilized the right-of-way as a driveway without permission and without objection. Lane erected

fences and “fenced in everything.” The purpose of the fencing was to keep cattle from leaving the

property and for security at night. Moreover, Lane used the right-of-way to graze livestock and

farm. He bailed hay, harvested gravel, and built stock ponds on the right-of-way. Lane utilized

the entire right-of-way in this fashion from 1959 until the time that Anderton purchased the

right-of-way in June 2009. Accordingly, we conclude the evidence is legally sufficient to support

a claim of adverse possession as to the entire right-of-way including the “back pasture” portion of

the right-of-way.

       Finally, Anderton argues that this Court should not consider the survey admitted into

evidence during the “partial new trial” in determining whether the evidence presented

sufficiently established the boundaries of the “driveway” and “pasture” portions of the

right-of-way.   Relying on In re Lovito-Nelson, 278 S.W.3d 773, 775 (Tex. 2009) (orig.

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proceeding), Anderton argues that the survey was improperly admitted into evidence after trial

because the trial court did not sign a written order granting a new trial.   We are not persuaded

by Anderton’s reliance on In re Lovito-Nelson.       In In re Lovito-Nelson, the Texas Supreme

Court conditionally granted a petition for mandamus after holding that a docket entry reflecting

the granting of a motion for new trial along with the entry of a scheduling order did not satisfy

the requirements of Rule 329b(c) of the Texas Rules of Civil Procedure.         Id. at 775-76.   The

Supreme Court expressly stated:

       Rule 329b(c) requires a written order to grant a new trial. ... It is important that
       the requirement of a written order granting a motion for new trial be a bright-line
       rule. Otherwise, one might argue that all sorts of conduct should be given the
       same effect-a trial setting or other setting, a status conference, a hearing on a
       discovery motion, a request for discovery-the list is endless. The uncertainty
       would carry over to appellate deadlines and possibly give rise to mandamus
       proceedings, like this one. The requirement is not difficult to meet, and the
       movant who fails to satisfy it is not left without possibility of relief. He may still
       attempt to prosecute an appeal, a restricted appeal, or a bill of review. But a
       motion for new trial is not granted without a signed, written order explicitly
       granting the motion.

Id. at 775-76. The instant case is distinguishable from In re Lovito-Nelson which dealt with a

motion for new trial filed by a party after the trial court signed a “Final Order in Suit Affecting

the Parent-Child Relationship,” whereas here, the issue is a partial new trial granted on the

court’s own motion before a final judgment was signed by the trial court.            See id. at 774.

Accordingly, we find Lovito-Nelson to be inapplicable and conclude the survey was properly

before the trial court and this Court is not barred from considering the survey attached to the trial

court’s May 25, 2012 judgment.

       Issue One is overruled.

                                         CONCLUSION

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       We affirm the judgment of the trial court.



                                            GUADALUPE RIVERA, Justice
July 23, 2014

Before McClure, C.J., Rivera, and Rodriguez, JJ.




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