We have heard many arguments from critics over the last few years berating professional land surveyors for not holding existing fences, improvements, or other evidence of possession on the ground as the boundary lines of real property. At the same time, other critics have called for holding, as the boundary corner, iron rods, pipes or other objects merely because they exist and were found somewhere near the alleged corner. They say that the mere existence of this evidence of possession, even of an unknown genesis, is enough to supersede any other evidence of the original boundary and render it irrelevant. All of this despite, and to the apparent exclusion of, other critical forms of evidence such as deed calls and matters of historical record! They make these assertions even in cases where such iron rods, pipes and other objects are in direct conflict with all other evidence found on the ground and that which is contained in the writings. These critics hold out these evidentiary elements as conclusive as to the location of boundaries of real property solely on the basis of their mere existence or past existence. Can you say "Unwritten Rights"?
I find these assertions specious, appealing only to those who would rather rely on a superficial and cursory attempt to locate and evaluate evidence rather than commit themselves to an exhaustive search for the facts that would support a rational and informed conclusion.
For the purpose of confining this discussion to a local perspective, we will examine some recent cases that reached the Court of Appeals and Supreme Court level in Texas.
In the Supreme Court case of Minh Thu Tran v. William Macha, 1) Neighboring relatives shared the use of a driveway for many years, thinking it belonged to one of them when in fact it belonged to the other. The court of appeals held this mutual mistake and mutual use transferred title by adverse possession.
The Supreme Court reversed this ruling stating that under Texas law, 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. TEX. CIV. PRAC. & REM. CODE 16.021
1. The statute requires visible appropriation; mistaken beliefs about ownership do not transfer title until someone acts on them. See, e.g., Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex. 1985). Thus, there must be adverse possession, not just adverse beliefs. The statute requires that such possession be inconsistent with and hostile to the claims of all others. Joint use is not enough, because possession must be of such character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant.
Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990) (quoting Rick v. Grubbs, 214 S.W.2d 925, 927 (Tex. 1948)) (emphasis in original); McDon-nold v. Weinacht, 465 S.W.2d 136, 141 (Tex. 1971)." In this case the court of appeals held that adverse possession need not be intentional, so long as it is visible, open, and noto-rious. 176 S.W.3d at 133. The Supreme Court disagreed saying while It is true that hostile use does not require an intention to dispossess the rightful owner, or even know that there is one. See Calfee v. Duke, 544 S.W.2d 640, 642 (Tex. 1976). But there must be an intention to claim property as ones own to the exclusion of all others; mere occupancy of land without any intention to appropriate it will not."
In another recent Court of Appeals case Pauline
Mohnke v. Wanda Green-wood 2, not only adverse possession but boundary by acquiescence were claimed among other things. It was asserted that a wire fence the 1967 survey was based on should be given preference in the order of dignity of calls because it was an artificial object and thus must be given priority over other evidence. However the Court of Appeals found, as a matter of fact, that the 1927 deed upon which the survey of 1967 relied on did not refer to the wire fence as an artificial object. The 1927 deed contained no calls for monuments, rods or artificial objects, just courses and distances. It was found in this case that the survey prepared in 1967 did not locate any rods or monuments as the basis of it‘s survey, that the 1967 survey set monuments or rods along the existing fence line and that the 1967 survey was a fence survey, that is, it was based on a fence line.
On the claim of adverse possession the court found that there was no evidence presented to suggest the wire fence was anything other than a casual fence.The Court of Appeals pointed to
Rhodes v. Cahill, 802 S.W.2d 643, 646 (Tex. 1990); Osborn v. Deep Rock Oil Corp., 267 S.W.2d 781, 785 (Tex. 1954) which said that "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." Further, the Appeals Court stated that according to Section 16.021 of the Texas Civil Practice & Remedies Code, "adverse possession" means "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. Section(s) 16.021 (Vernon 1986). A showing of adverse possession is required under both the ten and twenty-five year statutes of limitations. TEX. CIV. PRAC. & REM. CODE ANN. Section(s) 16.026, 16.027 (Vernon 1986) and that to establish title through adverse possession, "the possession must be of such character as to indicate unmistakably an asser-tion of a claim of exclusive ownership in the occupant." Rick v. Grubbs, 214 S.W.2d 925, 927 (1948).
It was argued that the existence of the wire fence, the use of the land for grazing cattle and the planting of pine trees establish hostile possession as a matter of law. However, the Court of Appeals found these factors alone are insufficient to establish title by adverse possession unless the disputed property was "designedly enclosed" for the claimants use. R
hodes v. Cahill, 802 S.W.2d at 646; McDon-nold v. Weinacht, 465 S.W.2d 136, 142 (Tex. 1971); Osborn, 153 Tex. at 287, 267 S.W.2d at 785." The Court of Appeals stated that limitation statutes do not contemplate that a claimant of adverse possession can derive aid, in establishing his claim, from an enclosure casually created by third persons in effecting a different purpose of their own, and who are strangers to both the claimant of adverse possession and the true owner of the enclosed land. In such a case, the enclosure, so far as our limitation statutes are concerned, has no more effect than if same had never come into existence. It is thus well settled that the mere grazing of land incidentally en closed by a fence created by others cannot support a claim of adverse possession. McDonnold, 465 S.W.2d at 142; Kahanek, 121 S.W.2d at 331."
Finally as to the claim of boundary by acquiescence in this Court of Appeals case the court said In order to establish a boundary by acquiescence; the claimant had to show that the location of the fence was agreed to as a result of a disagreement between the landowners over the boundary line of their respective properties. "The existence of uncertainty, doubt or dispute is essential to the validity of such [an] agreement."Gulf Oil Corp. v. Marathon Oil Co., 152 S.W.2d 711, 714 (Tex. 1941); McAllister v. Samuels, 857 S.W.2d at 778 (holding that without uncertainty as to the true boundary line there can be no boundary by acquiescence). In this case no such evidence of the existence of any of these matters was presented by the claimant other than the fence itself. The Court of Appeals went on, adding "When there is no doubt as to the true location of the boundary, mere proof of acquiescence in an erroneous line will not support a finding of boundary by agreement. Wall v. Car-rell, 894 S.W.2d at 798, citing Kirby Lumber Corp. v. Lindsay, 455 S.W.2d 733 (Tex. 1970)." The claimant in this case appeared to argue that, because the conflict in surveys performed in 1967 and a later survey that delineated different boundary lines, the "uncertainty, doubt or dispute" element is satisfied. The Court of Appeals stated that it is fundamental that the doubt or uncertainty must be known to the landowners at the time they agree to the boundary. See, e.g., Kirby, 455 S.W.2d at 738-39; Gulf, 152 S.W.2d at 714; McAllister, 857 S.W.2d at 778." The court also said that "A review of the record reveals no evidence of a misunderstanding or uncertainty as to the true boundary between the adjacent property owners. Without such a dispute, there can be no boundary by acquiescence."
It is worth noting that in this Court of Appeals case, payment of attorney‘s fees by the claimant was upheld.
A very recent case before the Court of Appeals,Moore v. Stone 3) , explored another claim of adverse possession and boundary by acquiescence under the 3, 5, 10 and 25 year statutes. This case involved a fence constructed some 50 years prior. In this case the Court of Appeals reversed the judgment of the lower court who had ruled in favor of the claimant. The Court of Appeals found that there was no evidence presented to suggest for what purpose the fence in question was constructed.The Court of Appeals pointed to the fact that the Texas Supreme Court has said, "It is well settled that when one enters into possession of land under a deed, his possession is referable to the deed, and it is presumed to be in conformity with it, and is confined to the limits thereof. Harmon v. Overton Ref. Co., 109 S.W. 2d 457, 460, rev‘d order of rendition on rehr‘g in 110 S.W. 2d 555 (Tex. 1937)." The Court of Appeals went on to state To claim adjoining land outside the limits of the described boundaries, the possessor must have actual possession of such additional land of such a character as of itself will give notice of an actual adverse possession.Southern Pine Lumber Co. v. Hart, 340 S.W.2d 775, 781 n. 2 (Tex. 1960); Osborn v. Deep Rock Oil Co., 153 Tex. 281, 267 S.W. 2d 781 (1954).Thus, to have title or color of title, the deeds of claimant had to include the disputed property within its descriptions. The claimant had stipulated that their deed called for a creek and not the fence as the boundary and since the claimant necessarily admitted that their deeds did not include the disputed property, there was no evidence that claimant had title or color of title that would allow the submission of questions to the jury regarding the 3 year statute of limitations on adverse possession. The Court found the same was true of a claim under the 5 and 25 year statutes. The Court also found that as a matter of fact there was no evidence presented to support a claim of adverse possession under the 10 year statute either because such a claimant must demonstrate that the disputed land was held in peaceable and adverse possession and cultivates, uses, or enjoys the property.
As to the claim of boundary by acquiescence the Court of Appeals again reiterated that a boundary by acquiescence must stem from uncertainty, doubt or dispute. They concluded that there was no evidence presented in this case to suggest any of these elements existed to support the contention that such an agreement of this nature had taken place.
The Court of Appeals also said "Although acquiescence and recognition may be evidence of an agreement fixing a boundary and may support an inference or presumption that there has been such an agreement, this presumption will not apply when induced by mistake, or when the true boundary is established conclusively by undisputed evidence. Kirby Lumber Corp. v. Lindsey, 455 S.W.2d 733 (Tex. 1970); Wall, 894 S.W.2d at 798. Further, when there is no doubt as to the true location of the boundary line, mere proof of acquiescence in an erroneous line will not support a finding that such other line is the true line."
Allow me to quote Mr. W. A. Rounds, former Chief Engineer of the Continental Oil Company 4) "The Surveyor has been subject to bitter condemnation accruing from his findings in the field. Yet, as a professional man, he is required to report such findings regardless of the ultimate outcome. When the public recognizes the dual requirements of the surveyor’s work, in that first, he must locate the property as it is occupied; and second, he must locate the property according to the record title; a great improvement will be shown in land surveying. The location of occupancy requires the application of the mechanics of surveying, while the retracing of the record title requires not only coordination with the General Land Office, but much more work afield to obtain control." Some things never change.
In closing, merely because irons rods, pipes and other objects exist and can be found, apparently set by surveyors subsequent to the original surveyor, such irons rods, pipes and other objects are not necessarily proof of the location of an original boundary or any other boundary. They are only evidence of the subsequent surveyor‘s opinion as to the location of a boundary. Similarly, a fence is not proof of a boundary by adverse possession or a boundary by acquiescence solely because it existed or exists. I am not suggesting that such evidence can‘t be used to determine a boundary. What I am suggesting is that relevancy of this evidence to the boundary in question must be demonstrated, and, what is more, proven!
(4)Texas Surveyors Association Short Course Reports (2nd Edition)
Bulletin of the Agricultural and Mechanical Col-lege of Texas, Fourth Series, Vol. 12, January 1, 1941, No. 1 "Some Judicial Decisions affecting Property lines"