Levada M. Wells, Trustee of the Wells Family Trust v. Weldon R. Johnson, Jr.
2014 Tex. App. LEXIS 9704
Tex. App.2014Background
- Dispute over 527.273 acres in Hardeman County between a "wash fence" (near the Red River) and a south fence; Wells claims title by chain of title, Johnson claims title by adverse possession.
- Wells obtained partial summary judgment on 3- and 5-year adverse-possession claims; jury trial in 2012 addressed 10- and 25-year claims under Tex. Civ. Prac. & Rem. Code §§ 16.026 and 16.027.
- The fenced tract spans multiple sections; the disputed acreage lies in Sections 9–11. The wash fence preexisted Wells’ family ownership (purchased in 1951); Wells and family used the land for grazing, corralling, and occasional improvements.
- Johnson and predecessors (Moore, Cary, Smith) used the larger fenced property intermittently for grazing, hunting, fence/windmill maintenance, and some improvements; ownership of the larger tract changed hands several times and Johnson bought it in 2004.
- The jury found Johnson (and predecessors) had peaceable and adverse possession for both 10- and 25-year periods; trial court awarded title to Johnson. Wells appealed, arguing insufficiency of evidence for adverse possession and erroneous admission of hearsay about who built the wash fence. The court reverses and renders for Wells on ownership, remanding for damages/fees.
Issues
| Issue | Plaintiff's Argument (Wells) | Defendant's Argument (Johnson) | Held |
|---|---|---|---|
| 1. Admissibility of James Moore's testimony recounting Blackie's statements about building the wash fence (hearsay) | Testimony was inadmissible hearsay and should be excluded | Statements were admissible to show the nature/character of Blackie's possession (state of mind/possession) or at least cumulative | Court: Sustained Wells' hearsay objection; James's testimony that Blackie said he built the wash fence was inadmissible to prove that fact |
| 2. Legal sufficiency that Johnson (and predecessors) made an adverse, hostile, exclusive claim | Wells: Evidence fails to show unmistakable, exclusive appropriation or a "designed enclosure"; grazing/occasional maintenance of a casual fence is insufficient | Johnson: Predecessors' long use, fence maintenance, and community knowledge gave notice and manifested adverse hostile claim | Court: Insufficient — wash fence was a casual fence predating Wells; evidence did not show designed enclosure or exclusive hostile possession required under §§ 16.026/16.027 |
| 3. Factual sufficiency / continuous possession for statutory period | Wells: Possession was intermittent (seasonal grazing, long gaps) and not continuous/exclusive; predecessors used the larger fenced tract sporadically | Johnson: Tacked predecessor use and improvements; community knowledge and acts (fence work, improvements) support continuous use | Court: Factually insufficient — grazing was seasonal/limited; long gaps and nondispositive fence character defeat continuous, adverse possession for the 10- and 25-year statutes |
Key Cases Cited
- Sharp v. Womack, 93 S.W.2d 712 (Tex. 1936) (apportionment of riparian accretions principles cited but not applied)
- Rhodes v. Cahill, 802 S.W.2d 643 (Tex. 1990) (adverse-possession claimant must prove every essential fact; casual fence vs. designed enclosure analysis)
- BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59 (Tex. 2011) (definition of adverse possession elements under statute)
- Osborn v. Deep Rock Oil Corp., 267 S.W.2d 781 (Tex. 1954) (discussing proof requirements and fence character)
- Rick v. Grubbs, 214 S.W.2d 925 (Tex. 1948) (possession must unmistakably assert exclusive ownership)
- Kinder Morgan N. Tex. Pipeline, L.P. v. Justiss, 202 S.W.3d 427 (Tex. App.—Texarkana 2006) (examples where designed enclosure plus active improvements supported adverse possession)