                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo
                              ________________________

                                   No. 07-12-00378-CV
                              ________________________

                    LEVADA M. WELLS, TRUSTEE OF THE WELLS
                          FAMILY TRUST, APPELLANT

                                             V.

                         WELDON R. JOHNSON, JR., APPELLEE



                            On Appeal from the 46th District Court
                                  Hardeman County, Texas
                 Trial Court No. 10,265; Honorable Dan Mike Bird, Presiding


                                       August 28, 2014

                                        OPINION
                    Before CAMPBELL and HANCOCK and PIRTLE, JJ.


       This appeal concerns title to 527.273 acres of land located near the Red River in

Hardeman County, Texas. Appellant, Levada M. (Marie) Wells, Trustee of the Wells

Family Trust (Wells), claims title to the disputed property by virtue of a chain of title from

the sovereignty of the soil to the present. Appellee, Weldon R. Johnson, Jr., claims title

to the same property by adverse possession. Following a jury trial in a trespass to try
title action and a verdict in favor of Johnson, the trial court entered judgment decreeing

him to be the owner of the disputed property. On appeal, Wells asserts the evidence

Johnson adversely possessed the disputed property was (1) legally and (2) factually

insufficient, and (3) the trial court erred in admitting hearsay testimony regarding the

construction of a designed enclosure or fence. We reverse the judgment of the trial

court, render judgment decreeing Wells to be the rightful owner of the disputed property,

and remand for further proceedings.


                                      BACKGROUND


       THE DISPUTED PROPERTY


       The   disputed    property

consists of 527.273 acres of

land, more or less, out of (1) the

north part of Section 9, C.&M.

RR. Co. Survey, Abstract No.

549, (2) the north part of Section

10, C.&M. RR. Co. Survey,

Abstract No. 1851, and (3) the north part of Section 11, G.C.&S.F. RR. Co. Survey,

Abstract No. 587, all located adjacent to the Prairie Dog Ford of the Red River in

Hardeman County, Texas. The disputed property is represented by the shaded portion

of the adjacent map.




                                            2
        THE FENCED PROPERTY


        The disputed property is part of a larger tract of land (the “fenced property”),

spanning west to east across Sections 9, 10, 11, 12, 13, bordered on the north by a

“wash fence”1 running generally northwest to southeast along the south bank of the Red

River, and bordered on the south by a second fence (the “south fence”) also running

generally northwest to the southeast. These two fences run in a parallel fashion and

extend northwest into Section 8, where they intersect, and southeast across Sections 9,

10, 11, 12 and 13, and then into Section 14, where they are connected by another

fence. The disputed property is that land between the two fences which lies in sections

9, 10, and 11. Those portions of the fenced property in Sections 8, 12, 13 and 14 are

not at issue here.


        THE DISPUTE


        As previously stated, Wells claims title to the disputed property by virtue of a

chain of title from the sovereignty of the soil to the present, whereas Johnson claims title

to the same property by virtue of adverse possession. It is undisputed that, but for

Johnson’s claim of ownership, Wells would own the disputed property and that she

continues to own the adjacent property immediately south of the disputed property.

Stated differently, Wells contends her property extends north all the way to the Red

River, whereas Johnson contends the northern boundary line of her property is the




        1
         At trial, Marie described the north fence as a “wash fence” because the fences were “hard to
keep up” due to the fact that “the winds will blow the posts out or water will come and wash the post out.”
She described a wash fence as being insufficient to enclose cattle.


                                                    3
south fence line.2 On May 9, 2007, Wells filed this trespass to try title action asserting

she was dispossessed of the disputed property by the unlawful entry and possession of

the property by Johnson or his predecessors in title. In addition to seeking a declaration

of title, Wells sought possession, lost rent/profits, and attorney’s fees.3                     By his first

amended original answer, Johnson asserted that “all or a portion” of the disputed

property was created by accretion, thereby necessitating an “apportionment survey,”

which he contended was called for by the river frontage equitable apportionment

method set out in Sharp v. Womack, 127 Tex. 357, 93 S.W.2d 712, 716 (Tex. 1936).4

Johnson further claimed title to the disputed property by virtue of the three, five, ten and

both twenty-five year adverse possession statutes set forth in the Texas Civil Practice

and Remedies Code.             See TEX. CIV. PRAC. & REM. CODE ANN. §§ 16.024, 16.025,

16.026, 16.027 and 16.028 (West 2002).5 For reasons discussed hereinbelow, our

review is limited to Johnson’s claims under §§ 16.026 (ten year) and 16.027 (twenty-five

year).




         2
          Ownership of the strip of land lying between the wash fence (the northern boundary of the
disputed property) and the south bank of the Red River was not determined by the trial court’s judgment.
         3
          See TEX. CIV. PRAC. & REM. CODE ANN. § 16.034(a) (West Supp. 2014). See also Cullins v.
                                                          th
Foster, 171 S.W.3d 521, 536 (Tex. App.—Houston [14 Dist.] 2005, pet. denied) (holding trial court had
discretion to award attorney’s fees in a suit for possession of real property, if the prevailing party recovers
from a person claiming rightful possession under a claim of adverse possession).
         4
          In Sharp, the Texas Supreme Court held that accretions to riparian lands should be equitably
apportioned to the owners of adjoining lands in proportion to the river frontage of those lands as shown by
the original field notes. Because the disputed property is not riparian property defined by a call to river
frontage (see footnote 2), this arcane apportionment theory was not submitted to the jury and has no
application to the facts of this case.
         5
          For convenience, unless otherwise indicated, subsequent references to the adverse possession
provisions of the Texas Civil Practice and Remedies Code may be cited simply as “section ____” or “§
____.”


                                                      4
        On July 21, 2009, the trial court entered an order granting Wells’s motion for

partial summary judgment, declaring that Wells had established, as a matter of law, title

to the disputed property by virtue of a chain of title from the sovereignty of the soil to the

present. The trial court later entered two separate orders granting Wells’s no-evidence

motions for partial summary judgment on Johnson’s claims under the three and five

year adverse possession statute of limitations claims.6 In February 2012, a jury trial

was held on Johnson’s remaining adverse possession claims under the ten and twenty-

five year statutes.7


        The TRIAL


        Suit for possession was filed on May 9, 2007. A trial was held in February 2012,

and the following testimony was elicited:


        MARIE W ELLS—At trial, Marie testified her father-in-law, R.M. Wells, bought

Sections 6, 7, 8, 9, 10, 11, and 16 in 1951. At the time, she and R.M.’s son, Robert

Marvin “Sonny” Wells, Jr., were dating.                   When purchased, the property had four

windmills and several corrals. In 1952, she, Sonny and some hired hands rebuilt the

wash fence along the Red River and extended it the full length of the river bordering the

disputed property. They also refurbished the corrals and extended them as well. The

rebuilding of the wash fence was completed in August 1952.



        6
          Johnson does not appeal the trial court’s order granting partial summary judgment finding Wells
established, as a matter of law, a chain of title to the disputed property from the sovereignty of the soil to
the present. Neither does Johnson appeal the trial court’s orders granting Wells’s partial summary
judgments on any action under the three year and five year adverse possession statutes. See §§ 16.024
and 16.025 (West 2002).
        7
            §§ 16.026, 16.027 and 16.028 (West 2002).

                                                      5
      In 1953, she, Sonny, and several hired hands built a second fence, the south

fence, which was located several hundred yards south of the wash fence. South of that

fence, Sonny and Marie ran cattle—normally about seventy head depending on the

weather and grazing conditions. Sonny and Marie used the disputed property between

the two fences to run heifers separated from other cattle until breeding time as well as

cows getting ready to calve. They also “worked” cattle every year in August at the

corrals between the wash fence and the south fence. In 1953-54, they sowed grass on

the disputed property to improve grazing conditions.


      In the late fifties, she and Sonny moved to town. Bill Ritchie was hired as a

ranch foreman, where he worked the ranch until 1988 when he began working on an “as

needed” basis. In December 1975, Sonny’s father, R.M., passed and, in June of 1985,

Sonny’s mother passed, leaving the property to Sonny and his sister. In July of 1986,

Sonny and his sister partitioned the land, with his sister receiving Sections 6, 7, 8 and

16, while Sonny received Sections 9, 10 and 11. Gary Naylor, a registered professional

surveyor, testified at trial that the deeds to Sections 8, 9, 10 and 11, all called for a

north-south boundary line, extending north to the Red River, and that he had surveyed

the property and established a fence line between Sonny’s and his sister’s properties,

i.e., between sections 8 and 9, passing across both the south fence line and the wash

fence line. The partition fence, surveyed and built, ran north-south, all the way to the

Red River, forming the western boundary of the disputed property. Marie testified no

one ever objected to or questioned the fence’s placement.


      In 1989, Sonny and Marie leased their land for grazing to Doris Loveless, and

then later to Kevin Martin, who has leased the land ever since. They began leasing

                                           6
their land for quail hunting to two brothers from Oklahoma and Pat Keck. They also

leased it to Charlie Brown to train dogs. From 1992 to the present, Pat Kennedy leased

the land to hunt deer and turkey.       Marie testified she and Sonny always paid the

property taxes on their land, including the disputed property. She testified that, in all

this time, she never saw cattle with anyone else’s brand or ear tag and never saw any

improvements being made to their land.


       Marie further testified that sometime after March 2004, Johnson called her and

asked if she wanted to sell the property. Johnson told her he bought some of their land,

but she was uncertain what land he was talking about. She asked him if he received a

warranty deed and told him she did not want to sell the property. Sonny died on March

9, 2005. After Sonny’s death, Marie received several offers to buy the property, but she

refused to sell. Later, she contacted Naylor and asked him to see about her land. He

returned telling her she needed to do something because her land was being taken from

her. She subsequently filed this trespass to try title action.


       BARRY BRIDGES—Barry Bridges testified he was a farmer/rancher who knew

Sonny all his life and was familiar with ranch land along the Red River in Hardeman

County. He ranched and ran cattle directly west of the disputed property on land that

also abutted the Red River. He was familiar with the fences on the disputed property—

the wash fence and the fence several hundred yards to the south. He testified that

sometimes when he ran cattle in the riverbed of the Red River they would wander onto

Sonny’s land. According to Bridges, Sonny was very particular about who went onto his

property, and he always sought permission to enter Sonny’s land before retrieving his

stray cattle. He further testified that Ritchie, the Wells’ foreman, would accompany

                                              7
them whenever they were on Sonny’s property. In all the times he was on the disputed

property, he never saw any cattle other than the Wells’ cattle. Further, he testified he

did not know whether Johnson’s predecessor in title, Blackie Moore, owned any land in

the area.


       PAT KECK—Pat Keck testified he was familiar with the land owned by Sonny and

Marie because he leased the property for hunting purposes from 1986 to 1990. In

1986, before he leased the property, Sonny showed him the parameters of the property

and the fence lines. At the time, the wash fence was fairly close to the river, and the

land was low-lying river bottom, with salt cedars. Hunting was pretty good. He could

see the river from the fence. During his tenure as a lessee, he did not see any cattle

running on the land close to the river.


       LUTHOR W ISEMAN—Luthor Wiseman testified his grandfather, Bill Ritchie, worked

for the Wells as foreman from 1960 to 1988, and thereafter “as needed.” When his

grandfather was foreman, Wiseman observed his grandfather check the Wells’ cattle,

build fences, feed cattle and work on windmills. He recalled repairing the wash fence

running up close to the river with his grandfather when he was five or six years old. He

testified they rode horses on the disputed property and recalled seeing wooden pens or

corrals. He did not recall seeing any other cattle on the disputed property other than the

Wells’ cattle.


       JAMES RAY MOORE—James Ray Moore testified that his father, Blackie Moore,

first acquired land just north of the disputed property in the ‘50s. He became familiar

with Blackie’s cattle-stocker operation in 1964 when he was in high school and worked


                                            8
approximately three weeks for Blackie.8 The disputed property was directly across the

Red River from Blackie’s property in Oklahoma and, in the ‘60s, the Moores thought the

disputed property was actually a part of their Oklahoma land. James testified that when

he first became familiar with the property there was a wash fence, or high-water fence,

along the south bank of the Red River bordering the north side of the disputed property.

Over Wells’s hearsay objection, James testified Blackie told him he built the wash

fence. According to James, Blackie’s cattle grazed the entire tract, from section 8 to

section 14. He testified he and Blackie expanded an existing corral, built a windmill,9

maintained two windmills, cleaned water wells, sowed grass a few times in ’64 or ’65, 10

maintained the wash fence and maintained a second fence located south of the wash

fence. In the ‘60s, 100 to 150 head of cattle ran on the disputed property six to nine

months out of the year.            According to James, in the ‘70s and ‘80s, Blackie began

running as many as 300 head of cattle.


        In January 1981, Blackie and his wife gave their two daughters a warranty deed

to the fenced property. The following day Blackie’s daughters deeded the property back

to Blackie but retained a one-half interest each in the mineral estate.11 In the early ‘90s,


        8
         James testified that a “cattle-stocker operation” was where you buy 300 to 400 pound cattle and
keep them until they reach 800 to 900 pounds and then sell the cattle.
        9
         James testified Blackie told him he built the only corrals and windmills on the disputed property
over Wells’s objection that the testimony was inadmissible hearsay.
        10
          James sowed Bermuda grass by running a grass drill in various places among the mesquites to
improve grazing for the cattle. He testified at trial he did not “know if you would call it cultivated,” but “[w]e
sowed improved grass in there.” He did not describe where on the ground the grass was sown.
        11
           The recording of a deed is only constructive notice of its contents to those whose duty it is to
search the records. D. T. Carroll Corp. v. Carroll, 256 S.W.2d 429, 434 (Tex. Civ. App.—San Antonio
1953, writ ref’d n.r.e.). Persons who hold good title to property, such as Wells, do not have a duty to
search the records daily to determine what subsequent instruments have been filed affecting title to their
property. Id. It is subsequent purchasers and creditors who are required to take notice of the filing of an

                                                        9
Blackie suffered a stroke and was no longer able to operate the cattle-stocker

operation.12 After Blackie’s cattle were sold, James continued to own and operate the

Moore property—on the Oklahoma side of the Red River. No cattle were grazed on the

disputed property “[p]robably not more than a year or two at the most,” until it was sold

to Mike Cary.


        In 1992, Blackie quit-claimed the fenced property to Cary, and Blackie’s

daughters transferred their mineral interests to Cary’s wife, Dana, in return for a

$10,000 down payment and a note for $40,000. Cary grazed cattle on the fenced

property. In 1996, Cary was unable to make his payments on the note, so he quit-

claimed the property back to Moore Land and Cattle Corporation (MLCC).                             MLCC

subsequently leased the property to David and Lavinda Smith. Smith also ran cattle

over the entire property. In 1997, MLCC quit-claimed the property to the Smiths in

return for a down payment of $10,000 and a $50,000 note. The Smiths subsequently

sold the property to Johnson and, on March 4, 2004, the Smiths quit-claimed the

property to Johnson.


        James testified no one ever interfered with Blackie’s use of the fenced property.

He also testified that neither Blackie nor MLCC ever paid any property taxes on the

disputed property. He testified he did run-off some quail hunters and four-wheelers on

___________________________
earlier filed deed or instrument. Id. Therefore, under the facts of this case, the recording of these deeds
is inconsequential to the issue of adverse possession.
        12
           After Blackie suffered a stroke, James set up Moore Land and Cattle Corporation, an
Oklahoma corporation. Blackie and his wife conveyed all their property to the corporation. The primary
shareholders were James’s wife and his wife’s sister. When Blackie’s wife passed in 2005, James’s two
children bought out his wife’s sister and James’s family now owns 100% of the corporation. Blackie
passed in the late ‘90s.


                                                    10
several occasions in the ‘70s and ‘80s but failed to identify whether the hunters and

four-wheelers were on the disputed property or other portions of the fenced property.

James also contacted Laramie McEntyre in the ‘80s and asked for an easement across

McEntyre’s property to reach the disputed property from the west. McEntyre granted

him an easement.


       MIKE CARY—Mike Cary testified he grazed cattle on the entire fenced property.

The fenced property was remote, and he hardly ever saw anyone when he was on the

land. He ran his cattle in June, July and August, testifying the land would support as

many as 220 head on the native grass but only for a short period. In addition to stocker

cattle, he also had a cow-calf operation he ran throughout the year, and he performed

repair work on the fences and windmills. He did not use the property for hunting or

fishing.


       DAVID SMITH—David Smith testified he was running cattle on Section 8

immediately west of Section 9,13 when James asked if he was interested in purchasing

the fenced property.           Before accepting James’s offer, Smith visited Sonny.   Smith

testified “I told Sonny that I was wanting to buy the Blackie Moore property that laid

between him and the river.”              Smith “asked Sonny if he had any claim to the land

because Blackie had been grazing. He told me—he said when we built that [fence

south of the wash-fence] we didn’t want the property at that time and he said I don’t

want it now. He said as far as I’m concerned, that’s Blackie Moore’s.”




       13
            Sonny’s sister sold section 8 to Steve Griffith.

                                                       11
      Smith testified he grazed approximately 100 cattle on the fenced property during

the summertime and moved the cattle back to the Griffith Place in the winter. He “[r]an

his cattle plumb to the other end of the whole expanse of property”—“[a]lot of times the

grass was better [on the east end towards Sections 13 and 14], and a lot of times you’d

find the cattle down on that end.” He also maintained the fences, put some water tanks

out, hunted possibly once a year and leased the land for bird hunters. Smith did not pay

any property taxes on the fenced property, and he paid off MLCC when he sold the

fenced property to Johnson. He testified there was really no other purpose for the

fenced property other than hunting and running cattle.


      CHANCE JOHNSON—In 2004, Chance Johnson assisted Johnson, his father, with

the purchase of the fenced property. He testified that, prior to the purchase, he called

Sonny to inquire whether he wanted to sell his property.      Chance told Sonny that

“Blackie’s old place” was under contract to purchase from Smith.        Sonny did not

respond but told Chance he was not interested in selling his property. Sonny also told

Chance that Blackie came “down onto the river” and started running cattle there in

1953. Chance asked if Sonny had any claim to the land Smith was selling to Johnson,

and Sonny responded he “had no interest in the place.”


      Chance also testified he helped his father report the fenced property for property

tax purposes to the tax assessor’s office. After buying the fenced property in 2004, he

and his father built two new fences, added roads, widened roads, added culverts,

cleared some timber, created an annual food plot or wheat field and cleared brush on

the fenced property.    Chance did not specify where on the ground any of the

improvements were actually located other than that the improvements related to the

                                           12
fenced property. He did testify the Johnsons used the property for general recreation

and hunting by guests.


       WELDON JOHNSON, JR.—Johnson first became aware of the property in January

2004 when he, Chance and Smith drove across the fenced property after hunting

nearby.     Before purchasing the fenced property, he called Sonny and asked if he

wanted to sell his property. Sonny said he was not interested. Johnson then told

Sonny that he “was planning to purchase the property between him and the river that

David Smith owned.” Sonny made no response. Johnson asked Sonny if he was

claiming ownership to the property, and Sonny replied Blackie had taken the place long

ago.   After Sonny’s death, Johnson subsequently asked Marie Wells if she was

interested in selling her property, and she too said no.


       Johnson relied on Chance to complete the purchase.         He subsequently built

some fences, fixed some culverts, built roads, widened existing roads and made certain

portions accessible in the fenced property.       He used the property for recreational

purposes and, during hunting season, visited every weekend. During off season, he

visited one or two weekends a month—staying in a thirty foot travel trailer that was not

located on the disputed property. Since 2004, he has paid property taxes on the fenced

property.    He also applied for a wildlife management property tax exemption.       He

obtained an easement from Steve Griffith to access the fenced property from the west

by traversing the Griffith Place along the Red River. He testified he paid $154,000, or

approximately $175 an acre, for the fenced property and received a quit-claim deed

from Smith.



                                            13
      ROBERT MARVIN W ELLS III—Robert Wells III is Sonny’s son. In 1986, the Wells

family sold off all their cattle and leased the property to Loveless for grazing.       He

testified that Dale Martin and his son, Kevin, currently lease the property, and they have

done so ever since the Loveless lease terminated.         Robert testified he never saw

anyone else’s cattle on the disputed property between 1986 and 2007.


      KEVIN DALE MARTIN—Kevin Martin testified that he and his father have leased the

Wells property for grazing since 1992. Kevin did not recall grazing north of the south

fence line because that property consisted of tall salt grass and the wash fence was “so-

so at best.” Since 1992, Kevin had concerns about grazing in the area between the two

fences because he was concerned the wash fence might not be able to turn the cattle.

Kevin testified the cattle did not graze between the south fence and the wash fence due

to the condition of the wash fence and the possibility cattle would get out and cross the

Red River into Oklahoma. Kevin testified that if their cattle wandered over to Oklahoma,

it would be very difficult to get them back. Since leasing the property, the most cattle

Martin had ever observed on the disputed property between the wash fence and the

south fence was half a dozen.


      THE VERDICT AND JUDGMENT


      In response to the charge of the court, the jury found that prior to May 9, 2007,

the date Wells filed her trespass to try title suit, Johnson, or his predecessors, had held

the disputed property in peaceable and adverse possession by cultivating, using, or




                                            14
enjoying that property for both a ten year and twenty-five year period.14 The trial court

subsequently issued its Final Judgment awarding title and possession of the disputed

property to Johnson. This appeal followed.


                                        ADVERSE POSSESSION


        The doctrine of adverse possession is based on statutes of limitation for the

recovery of real property. See §§ 16.021–.037 (West 2002 and West Supp. 2014).

Thus, in the context of a dispute concerning possession of real property, the rightful

owner of the property must institute suit within a specified period of time (three, five, ten

or twenty-five years depending on various statutory factors and conditions) or

subsequently be barred from recovery.                   Not only are suits for the recovery of

possession by the rightful owner barred, adverse possession provisions also operate to

vest the adverse claimant with title to the property. See § 16.030 (a) (West 2002).

Therefore, “[t]he concept of adverse possession allows a person to claim title to real

property presently titled in another.” Session v. Woods, 206 S.W.3d 772, 777 (Tex.

App.—Texarkana 2006, pet. denied) (emphasis in original).


        Due to the harsh nature of disenfranchising someone of title otherwise rightfully

held, establishing title by adverse possession is not well-regarded in the law, and the

statutory prerequisites must be strictly complied with. See Thomas v. Southwestern


        14
           It should be noted that Johnson plead both twenty-five year limitations periods, §§ 16.027 and
16.028. Section 16.027 pertaining to claims by someone who “cultivates, uses, or enjoys the property”;
and, § 16.028 pertaining to claims by someone who “holds the property in good faith and under a deed or
other instrument purporting to convey the property that is recorded in the deed records of the county
where any part of the real property is located.” Although Johnson made claims under both statutes, the
jury returned an adverse verdict to the claim made pursuant to § 16.028. Johnson did not appeal that
finding. Accordingly, our discussion concerning the twenty-five year limitations period will be limited to
the provisions of § 16.027 only.

                                                   15
Settlement & Development Co., 131 S.W.2d 31, 34 (Tex. Civ. App.—Beaumont 1939,

writ dism’d judgm’t cor.). “One seeking to establish title to land by virtue of the statute of

limitations has the burden of proving every fact essential to that claim by a

preponderance of the evidence.” Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990);

Osborn v. Deep Rock Oil Corp., 153 Tex. 281, 286, 267 S.W.2d 781, 787 (1954)

(holding that adverse claimant has the burden to prove every fact necessary to that

claim by “clear and satisfactory” evidence). Thus, the burden of proving each essential

element is on the party claiming title by adverse possession. Fuentes v. Garcia, 696

S.W.2d 482, 484 (Tex. App.—San Antonio 1985, no writ) (citing Davis v. Carriker, 536

S.W.2d 246, 251 (Tex. Civ. App.—Amarillo 1976, writ ref’d n.r.e.)). See Moore v. Stone,

255 S.W.3d 284, 288 (Tex. App.—Waco 2008, pet. denied).


       Under Texas law, courts have interpreted every claim of adverse possession as

encompassing at least six essential elements: (1) visible appropriation and possession

of the disputed property; (2) that is open and notorious; (3) that is peaceable; (4) under

a claim of right; (5) that is adverse and hostile to the claim of the owner; and (6)

consistent and continuous for the duration of the statutory period. Glover v. Union Pac.

R.R., 187 S.W.3d 201, 213 (Tex. App.—Texarkana 2006, pet. denied). See § 16.021(1)

(West 2002). It has been said that adverse possession requires “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.” BP Am. Prod. Co. v.

Marshall, 342 S.W.3d 59, 69 (Tex. 2011) (quoting § 16.021(1)).




                                             16
       VISIBLE AND HOSTILE CLAIM


       In order to satisfy the elements of an adverse possession claim, the claim of the

adverse claimant must be inconsistent with and hostile to the claim of the rightful title

holder. Id. at 69-70. Therefore, to claim property through adverse possession, "the

possession must be of such character as to indicate unmistakably an assertion of a

claim of exclusive ownership in the occupant." Rick v. Grubbs, 147 Tex. 267, 270, 214

S.W.2d 925, 927 (1948) (emphasis in original). In determining what constitutes an

unmistakable claim of ownership, hostile to the rightful owner, considerable importance

is attached to the nature of the land and its usual and customary uses. Wall v. Carrell,

894 S.W.2d 788, 801 (Tex. App.—Tyler 1994, writ denied). “It is well settled, that,

where a party relies upon naked possession alone as the foundation of his adverse

possession claim, it must be such an actual occupancy as the law recognizes as

sufficient, if persisted in for a long enough period of time, to cut off the true owner’s right

of recovery.” Rhodes, 802 S.W.2d at 645.


       DESIGNEDLY ENCLOSED

       While the fencing of land has long been recognized as visible appropriation of the

property enclosed, Kinder Morgan North Tex. Pipeline, L.P. v. Justiss, 202 S.W.3d 427,

439 (Tex. App.—Texarkana 2006, no pet.), use of the land for grazing cattle, along with

other related uses, is insufficient to establish title by adverse possession where the

disputed land was incidentally enclosed by a casual fence. See Mendoza v. Ramirez,

336 S.W.3d 321, 329 (Tex. App.—El Paso 2010, pet. denied) (holding no adverse

possession shown by family gatherings on property separated by a casual fence); Mead

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

                                              17
of land insufficient possession where unaccompanied by actual occupancy or open

use); Harlow v. Giles, 132 S.W.3d 641, 647 (Tex. App.—Eastland 2004, pet. denied)

(finding “[t]he law is well settled that the mere grazing of land incidentally enclosed by a

fence created by others cannot support a claim of adverse possession.             [Citations

omitted.]”). Without more, mere fencing or the erection of other improvements will not

ripen into title without “actual and visible appropriation.” Dunn v. Taylor, 102 Tex. 80,

86, 113 S.W.2d 265 (1908).


       Therefore, if the disputed property is range land and the adverse claimant is

relying on mere grazing of livestock to show adverse use, the claimant must also show

that the property is “designedly enclosed” by a fence. See Rhodes, 802 S.W.2d at 645

(finding the isolated sale of cedar trees and the clearing of land for the grazing of cattle

and goats was insufficient to establish adverse possession where tract was not

designedly enclosed); King Ranch, Inc. v. Garcia, No. 04-13-00605-CV, 2014 Tex. App.

LEXIS 8522 (Tex. App.—San Antonio Aug. 6, 2014, no pet. h.) (mem. op.) (finding

evidence that claimant had family gatherings on the property, grazed cattle, hunted and

occasionally grew crops was insufficient to establish actual visible appropriation where

fence existed before the claimant took possession); Moore, 255 S.W.3d at 289 (holding

no adverse possession of property enclosed by casual fence where only use was

grazing, cutting hay and sporadic cultivation); Harlow, 132 S.W.3d at 648 (finding use of

property for grazing of livestock and occasional hunting, including the construction of

deer blinds and deer feeders, was insufficient to establish adverse possession where

claimant failed to establish a “designed enclosure”).




                                            18
        Under applicable case law, fences are classified as either “casual fences” or

fences that “designedly enclose” an area. Id. at 646; King Ranch, Inc. 2014 Tex. App.

LEXIS 8522, at *15. “If the fence existed before the claimant took possession of the

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

fence is a ‘casual fence.’” Rhodes, 802 S.W.2d at 646 (citing Osborn, 267 S.W.2d at

786).   Moreover, repairing or maintaining a casual fence, even for the purpose of

keeping the claimant’s animals within the enclosed area, generally does not change a

casual fence into a designed enclosure. Id. Only if the claimant substantially modifies a

casual fence thereby changing the fence’s character may the fenced-in area become a

designed enclosure.    Harlow, 132 S.W.3d at 647.       The “designed enclosure rule”

applies whether or not an open range law is in effect in the county. Terrill v. Tuckness,

985 S.W.2d 97, 108-09 (Tex. App.—San Antonio 1998, no pet.).


        CONSISTENT AND CONTINUOUS CLAIM


        Possession of the claimed property must also be consistent and continuous,

uninterrupted by temporary vacancy, unless duration of vacancy is reasonable under

existing circumstances which reasonably show the adverse claimant did not thereby

intend to abandon the premises. Grayson v. Dunn, 581 S.W.2d 785, 788 (Tex. Civ.

App.—Waco 1979, writ ref’d). So long as a claimant’s predecessors in interest meet all

the requirements of adverse possession, a claimant may meet a statutory limitations

period by tacking the claimant’s period of possession with that of his predecessors in

interest. BP Am. Prod. Co., 342 S.W.3d at 69. See § 16.023 (West 2002).




                                           19
      CULTIVATION, USE AND ENJOYMENT


      In addition to the general elements of adverse possession discussed above,

under both the ten and twenty-five year statutes applicable in this case, in order to

acquire title by adverse possession the property must be held by a claimant who

“cultivates, uses, or enjoys the property.”15 The cultivation, use or enjoyment of the

property must be of such character as would give the true owner notice of the hostile

nature of the claim. Rhodes, 802 S.W.2d at 645-46; Kinder Morgan North Tex. Pipeline,

L.P., 202 S.W.3d at 439-441 (adverse possession established where claimant

designedly enclosed tract, continuously grazed cattle, maintained property, dug a stock

pond, rebuilt and maintained levee, hired contractors to do bulldozer work on levee,

sprigged ground, planted Bermuda grass, filled in slough, and cut an emergency

spillway); Parkins v. McGehee, 133 S.W.3d 287, 293 (Tex. App.—Fort Worth 2004, no

      15
           The applicable sections of the Texas Civil Practice and Remedies Code are the following:

      Section 16.026 – Adverse Possession: 10-Year Limitations Period

      (a) A person must bring suit not later than 10 years after the day the cause of action
      accrues to recover real property held in peaceable and adverse possession by another
      who cultivates, uses, or enjoys the property.
      (b) Without a title instrument, peaceable and adverse possession is limited in this section
      to 160 acres, including improvements, unless the number or acres actually exceeds 160.
      If the number of enclosed acres exceeds 160 acres, peaceable and adverse possession
      extends to the real property actually enclosed.
      (c) Peaceable possession of real property held under a duly registered deed or other
      memorandum of title that fixes the boundaries of the possessor's claim extends to the
      boundaries specified in the instrument.
      (Emphasis added).

      Section 16.027 – Adverse Possession: 25-Year Limitations Period
      Notwithstanding Disability

      A person, regardless of whether the person is or has been under a legal disability, must
      bring suit not later than 25 years after the day the cause of action accrues to recover real
      property held by peaceable and adverse possession by another who cultivates, uses, or
      enjoys the property.
      (Emphasis added).



                                                   20
pet.) (adverse possession established where (1) tract constantly used for grazing, (2)

tract contiguous to claimant’s record title land, fenced within it and both tracts operated

as a single unit, (3) ranch manager rebuilt and replaced water-gapped portions of fence,

modified portions of fence and always maintained fence, and (4) general reputation in

the community had always been that the disputed property was part of claimant’s

ranch). The burden of proof is on the claimant to establish such cultivation, use or

enjoyment by a preponderance of the evidence. RLMC, Inc., 225 S.W.3d at 715.


                                      ISSUE THREE—HEARSAY


        For purposes of logical sequence, we will first address Wells’s third issue

concerning whether the trial court erred in admitting the testimony of James Ray Moore

concerning statements made to him by Blackie regarding Blackie’s construction of the

wash fence. In particular, Wells contends the statements were inadmissible hearsay,

offered in evidence in violation of Rule 802 of the Texas Rules of Evidence. Johnson

contends the statements were admissible under an exception to the hearsay rule. He

further contends the statements were cumulative of other probative evidence, and

therefore, any error in admitting the statements was harmless.16


        ANALYSIS


        Marie’s direct testimony was that the wash fence forming the northern border of

the disputed property, and generally tracking the southern bank of the Red River, was

        16
           Wells also objected to James’s testimony concerning hearsay statements made to him by
Blackie regarding the construction of corrals and windmills; however, she does not raise those complaints
on appeal. Because those statements deal with the nature and character of the adverse use of the
disputed property, and not the issue of a “designed enclosure,” we will assume, for purposes of this
opinion, the trial court did not err in admitting those statements.


                                                   21
rebuilt by her and Sonny in 1952, implying that the fence existed prior to that date. On

the other hand, James’s testimony was that his father told him he built the wash fence

when he first acquired land in Oklahoma, just north of the disputed property in Texas.17

To the extent that this statement was being offered in evidence to prove the truth of the

matter asserted, i.e., that Blackie built the wash fence, it was a hearsay statement. TEX.

R. EVID. 802(d) (defining a hearsay statement as “a statement, other than one made by

the declarant while testifying at the trial or hearing, offered in evidence to prove the truth

of the matter asserted”). See Tuckness, 985 S.W.2d at 110 (claimant’s testimony that

predecessor in title told him he chased hunter off disputed land was hearsay);

Hernandez, 611 S.W.2d at 736-37 (son’s statement that his deceased father told him he

did not want to knock down trees on disputed property because he was not sure who

owned the property was hearsay); Boettcher v. Gould, 577 S.W.2d 806, 807-08 (Tex.

Civ. App.—Austin 1979, writ ref’d n.r.e.) (testimony that father told claimant that the

county built the fence when the road was created was hearsay); Green v. Blanks, 342

S.W.2d 141, 148 (Tex. Civ. App.—Austin 1960) (son’s testimony as to what his

deceased father said about use of the property was hearsay).


        Johnson contends Blackie’s statements concerning construction of the wash

fence were admissible as an exception to the hearsay rule in order to explain the nature

and character of Blackie’s possession of the disputed property and to show the extent of

his interest and the character of his holding. Relying on Powell v. Jackson, 320 S.W.2d

20, 24-25 (Tex. Civ. App.—Amarillo 1958, writ ref’d n.r.e.), and Nagel v. Kiibler, 212

S.W.2d 1009, 1011 (Tex. Civ. App.—Galveston 1948, writ ref’d n.r.e.), Johnson

        17
           Chance testified that Sonny told him Blackie began running cattle in the area in 1953, implicitly
contradicting Marie’s testimony that the fence existed in 1952.

                                                    22
contends the statements are admissible because they demonstrate Blackie’s intent to

claim the property adversely and use it for his own purposes. Powell and Nagel are

inapposite, however, because they deal with statements offered to prove the state of

mind of the declarant, not the fact asserted. Johnson fails to cite us to any hearsay

exception under Rule 803 of the Texas Rules of Evidence applicable to the facts of this

case, and we find none.       As such, Wells’s third issue is sustained, and James’s

testimony recounting Blackie’s hearsay statements regarding construction of the wash

fence was inadmissible for purposes of establishing that Blackie built that fence.18


        ISSUES ONE AND TWO—LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE


       By her first and second issues, Wells asserts Johnson’s evidence is legally and

factually insufficient to establish the elements of adverse possession.        Particularly,

Wells contends the evidence is legally and factually insufficient to establish that

Johnson, or his predecessors, (1) adversely possessed or (2) maintained continuous

possession of the disputed property. We agree.


       STANDARD OF REVIEW


       When both legal and factual sufficiency challenges are raised on appeal, the

reviewing court must first examine the legal sufficiency of the evidence.    See Glover v.

Tex. Gen. Indemnity Co., 619 S.W.2d 400, 401 (Tex. 1981). In conducting a legal

sufficiency review, we consider the evidence in the light most favorable to the verdict

and indulge every reasonable inference that supports the verdict.         City of Keller v.


       18
           Determination of whether the erroneous admission of this evidence was harmless is
pretermitted by our resolution of issues one and two. See TEX. R. APP. P. 47.1.

                                            23
Wilson, 168 S.W.3d 802, 821-22 (Tex. 2005). The evidence is legally sufficient if it

would enable reasonable and fair-minded people to reach the verdict under review. Id.

at 827. In conducting our review, we must “credit favorable evidence if reasonable

jurors could, and disregard contrary evidence unless reasonable jurors could not.” Id.


       The trier of fact is the sole judge of the credibility of the witnesses and of the

weight to be given to their testimony. Id. at 819. The reviewing court may not substitute

its judgment for that of the jury, so long as the evidence falls within the zone of

reasonable disagreement. Id. at 822. But if the evidence allows only one inference,

neither the jurors nor the reviewing court may disregard it. Id.


       In reviewing a legal sufficiency issue, we may sustain the challenge only when

(a) there is a complete absence of evidence of a vital fact, (b) the court is barred by

rules of law or of evidence from giving weight to the only evidence offered to prove a

vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla of

evidence, or (d) the evidence conclusively establishes the opposite of the vital fact in

question. Keller 168 S.W.3d at 810; King Ranch, Inc. v. Chapman, 118 S.W.3d 742,

751 (Tex. 2003), cert. denied, 541 U.S. 1030, 124 S.Ct. 2097, 158 L.Ed.2d 711 (2004)

(quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). A

scintilla of evidence exists when the evidence “rises to a level that would enable

reasonable and fair-minded people to differ in their conclusions.” Ford Motor Co. v.

Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting Havner, 953 S.W.2d at 711).

Evidence does not exceed a scintilla if it is so weak as to do no more than to create a

mere surmise or suspicion that the fact exists. Id.



                                             24
        In reviewing factual sufficiency, the reviewing court must consider, examine, and

weigh the entire record, considering both the evidence in favor of, and contrary to, the

challenged findings. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.

1998), cert. denied, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998). In doing

so, the court no longer considers the evidence in the light most favorable to the finding;

instead, the court considers and weighs all the evidence and sets aside the disputed

finding only if it is so contrary to the great weight and preponderance of the evidence as

to be clearly wrong and manifestly unjust. Id. at 407.


        ANALYSIS


        In this case, because the trial court previously granted a partial summary

judgment in favor of Wells on Johnson’s claims of adverse possession under the three

year and five year statutes, §§ 16.024 and 16.025 respectively, the trial court submitted

to the jury issues pertaining to the three remaining statutory sections: (1) § 16.026 (ten

year), (2) § 16.027 (twenty-five year), and (3) § 16.028 (twenty-five year).19 The jury

returned a verdict favorable to Johnson under §§ 16.02620 and 16.027,21 but




        19
           Johnson did not appeal the trial court’s orders granting partial summary judgment pertaining to
his claims under the three year and five year adverse possession limitation statutes. See §§ 16.024-.025
(West 2002).
        20
            Question No. 1—Do you find that [Johnson], or his predecessors, has held [the disputed
property] in peaceable and adverse possession by cultivating, using, or enjoying such lands for any ten-
year period before May 9, 2007?
        Answer: “Yes”
        21
           Question No. 2.—Do you find that [Johnson], or his predecessors, has held [the disputed
property] in peaceable and adverse possession by cultivating, using, or enjoying such lands for any
twenty-five-year period before May 9, 2007?
        Answer: “Yes”


                                                   25
unfavorable as to § 16.028.22 Because Johnson does not appeal the jury’s unfavorable

verdict pertaining to § 16.028, we will limit our discussion to §§ 16.026 and 16.027 only.

As to the six essential elements comprising an adverse possession claim, Wells has

focused her insufficiency of the evidence claims on two elements: (1) whether

Johnson’s claim was adverse and hostile to her claim of ownership and (2) whether his

possession was consistent and continuous for the duration of the statutory period.


        (1) ADVERSE AND HOSTILE


        Here, the disputed property consists of remote ranch land with limited

improvements. It is bounded on the south by the “south fence” constructed by Sonny

and Marie Wells; on the west by a partition fence erected by the Wells to separate

Section 8 from Section 9; on the north by a “wash fence” of unknown origin;23 and on

the east by open ranch land.24 While there was conflicting testimony that Johnson’s

predecessors may have maintained some of the fences, there was no competent

evidence that they significantly changed the character of the enclosure. Because no

one testified to the purpose for construction of the wash fence when built and because

Marie’s testimony establishes the wash fence existed before her father-in-law bought

the disputed property in 1951, for purposes of determining whether Blackie, Cary, Smith


        22
           Question No. 3—Do you find that [Johnson], or his predecessors, has held [the disputed
property] in good faith and under a deed or other instrument purporting to convey such lands that is
recorded in the deed records of Hardeman County, Texas for any twenty-five-year period before May 9,
2007?
        Answer: “No”
        23
          Other than the inadmissible hearsay statement previously discussed, the undisputed evidence
was that the wash fence existed prior to 1952, predating any acts relied upon by Johnson to establish
adverse possession.
        24
           While the disputed property itself consists of portions of Sections 9, 10 and 11, it is part of a
larger fenced tract which includes portions of Sections 12, 13 and 14.

                                                    26
or Johnson adversely possessed the disputed property, we must consider the wash

fence a casual fence. As such, we conclude the disputed property was not designedly

enclosed. To the contrary, evidence established that the wash fence was so insecure it

would not “turn” livestock and from time to time cattle from nearby ranches would

wander onto the property.


        Furthermore, evidence established that any use by Blackie and his successors

was not exclusive because Sonny and Marie also used the disputed property to

separate and corral their cattle without interference.    According to the testimony of

Wells, Keck and Wiseman, other than the occasional stray cow from a nearby ranch, no

one ever saw anyone else’s cattle on the disputed property. While there was testimony

concerning the maintenance of the fences, corrals and windmills on the property, there

was insufficient evidence of actual and visible appropriation of the disputed property that

was inconsistent with and hostile to Wells’s claim of ownership for the requisite period of

time.


        Johnson also contends Sonny had actual knowledge of Blackie’s claim to the

disputed property and that such knowledge was a substitute for appropriation and

possession that was open, notorious, adverse and hostile to Sonny’s claim of

ownership. Johnson bases this position on three conversations: one between Smith

and Sonny, one between Chance and Sonny, and one between Johnson and Sonny.


        In the first conversation, Smith visited Sonny in 1997 and told him he “was

wanting to buy the Blackie Moore property that laid between [Sonny] and the river.” He

asked Sonny if he had any claim to the land Blackie had been grazing, and Sonny


                                            27
responded that he did not want the property. He told Smith “as far as I’m concerned,

that’s Blackie Moore’s.” When Sonny’s statements were made, Blackie was no longer

in possession of the disputed property, and there is no evidence Sonny was aware of

any other claim. The statement does not describe what Sonny considered Blackie’s

property to be, or when he considered it to have been Blackie’s, or whether he believed

Blackie’s use to be adverse. In fact, evidence showed Sonny thought Blackie ran his

cattle “down at the river.” At best, Smith’s statement is evidence that, in 1997, Sonny

received notice that, at one time, Blackie grazed cattle in the salt cedars near the river.

Such evidence creates a “mere surmise or suspicion” that Blackie possessed the

disputed property adverse to Sonny’s interest. See Ford Motor Co., 135 S.W.3d at 601.


       Moreover, we need not address Sonny’s statements to Chance and Johnson or

vice versa because, even if we were to find that Sonny had received sufficient notice in

2004 that Smith was in possession of the disputed property or that Johnson in fact

purchased that property from Smith, such notice would be legally insufficient because

those conversations occurred less than ten years prior to the filing of suit. To the extent

either of those statements might indicate earlier knowledge of an adverse claim, we are

left to speculate as to when. Furthermore, Chance’s testimony was that Sonny told him

“I have no interest in [the property Johnson was buying from Smith which was identified

as ‘Blackie Moore’s old place’].” A significant problem with this conversation is that the

property in question was never identified.25 While the conversations between Sonny


       25
            Chance Johnson testified as follows:

       Q.        Can you tell us whether or not you told him what you and your dad’s intentions were
                 about purchasing the [disputed property]?


                                                   28
and both Smith and Johnson were somewhat more specific as to the property in

question,26 Johnson’s argument fails to address how Sonny’s awareness, if any, of

Blackie’s claim was a substitute for “cultivation, use or enjoyment of the property,” an

essential element of his adverse possession claim.


        Similarly, evidence concerning any use or improvement of the property by

Johnson would be legally insufficient to satisfy the essential elements of adverse

possession because those acts occurred less than ten years prior to the filing of suit for

possession. Under these facts, we find the evidence was legally and factually

insufficient to establish that their claim was exclusive, adverse and hostile.


        CONSISTENT AND CONTINUOUS


        Undisputed testimony further established there were significant periods when no

one was grazing cattle within the fenced property, much less the disputed property. The

evidence was that Blackie had cattle on the property only four to six months out of each

year and that when Blackie ceased his cattle operations in the early ‘90s, James

conducted the remaining cattle business on the Oklahoma side of the Red River.

___________________________
        A.      I did. I told him my father had Blackie Moore’s old place under contract to purchase from
                David Smith and . . . .

        Q.      Did you identify the property in any other way?

        A.      No.
        26
            Smith identified the property as “the Blackie Moore property that laid between [Sonny] and the
river,” while Johnson identified the property as “the property between [Sonny] and the river that David
Smith owned.” As previously noted, the disputed property does not abut the Red River but instead lies
between the wash fence and the south fence, both of which lie south of the south bank of the river. Smith
goes on to pontificate that Sonny understood that to mean the property north of the south fence because
it was his expressed desire to “stay out of the salt cedars.”



                                                   29
According to James’s deposition testimony, there were no cattle on the disputed

property “[p]robably not more than a year or two at the most,” between the cessation of

Blackie’s cattle operations and the sale of the property to Cary.       Testimony further

established that from around 1992 to 1994 Cary only grazed cattle during the summer

months and that from 1997 until 2004, Smith did the same. Furthermore, testimony

established that when cattle were grazed on the property, they would randomly migrate

within the larger fenced tract (not on the disputed property), depending on the

availability of grassland. Accordingly, the grazing of cattle was insufficient to establish

consistent and continuous possession. Issues one and two are sustained.


                                       CONCLUSION


       After reviewing the record, we conclude the evidence is legally and factually

insufficient to support a finding of actual and visible appropriation of the disputed

property, commenced and continued under a claim of right that is inconsistent with and

hostile to the claim of Wells for the period of time required to establish adverse

possession under §§ 16.026 or 16.027.         Accordingly, the trial court’s judgment is

reversed and we render judgment, in part, in favor of Wells on the issue of ownership of

the disputed property.     We also remand this action to the trial court for further

proceedings to determine whether Wells is entitled to an award of damages, attorney’s

fees and costs of court.


                                                 Patrick A. Pirtle
                                                     Justice




                                            30
