(1) for one or more years during the 25 years preceding the filing of the suit the person holding apparent record title to the property did not exercise dominion over or pay taxes on the property; and (2) during that period the opposing parties and those whose estate they own have openly exercised dominion over and have asserted a claim to the land and have paid taxes on it annually before becoming delinquent for as long as 25 years . (b) This section does not affect a statute of limitations, a right to prove title by circumstantial evidence under the case law of this state, or a suit between a trustee and a beneficiary of the trust. (emphasis added) Old Article 5519a was first enacted in 1930 and amended the next year by changing the number of years the title claimant must exercise dominion, assert a claim and pay taxes to the present twenty- five (25) years. In the author’s opinion, old Article 5519a (and the present Article 16.029) are not true statutes of limitation. That is, they do not absolutely bar a cause of action in title suits for the recovery or establishment of title in the title claimant. Rather, a presumption of title in the title claimant can be made but can be overcome if the record owner brings forth sufficient evidence to rebut such presumption. There is not a large amount of case law on old Article 5519a or the present Article 16.029. Assuming that the present Texas Supreme Court is willing to follow precedent (lots of luck with that), this article will explore all of the pertinent case law pertaining to either statute in an effort to understand how the Dominion Statute has been interpreted in the past as well as how it should/ could be interpreted in the future. One thing that does become apparent, after reading the statute in light of the past litigation, Article 16.029 as presently/previously configured is not now and was never a true adverse possession statute. Adverse possession is simply not a component of the statute. 1
1 Texas law requires that the adverse possession by one cotenant be of such unequivocal notoriety that the out of possession cotenant(s) will be presumed to have notice of such adverse right in the posses- sory cotenant. Todd v. Bruner, 365 S. W. 2d. 155 (Sup. Ct. - 1963) The acts of possession of the possessory cotenant must sufficiently apprize the other cotenant(s) and persons in the general community that the possessory cotenant was claiming the sole and exclusive right to appropriate all of the land to its own use in hostile claim of the true owner. Todd v. Bruner, 365 S. W. 2d. 155 (Sup. Ct. - 1963) and Southern Pine Lumber Company v. Hart, 340 S. W. 2d. 775 (Sup. Ct. - 1960) That is, possession of a tract of land, or an interest therein (such as the mineral estate), in the absence of other evidence to the contrary, is not considered as adverse to the out of possession cotenant(s). Instead, such possession is presumed to be in right of common title. Henderson v. Herrington, 366 S. W. 2d. 667 (Tex. Civ. App. - 1963, writ ref’d n.r.e.) and Walton v. Hardy, 401 S. W. 2d. 614 (Tex. Civ. App. - 1966, writ ref’d n.r.e.) In summary, the large, glaring issue that arises in situations where one cotenant is in possession of a given tract of land, where nothing has been said to the other cotenant(s) which would constitute an obvious ouster and repudiation of their title, is whether there are any legal theories which will quiet title in the possessory cotenant at some point in time, especially where the possession commenced long ago. The Myth of the Cured Title Opinion Supplemented by That Title Requirement is Satisfied! Really? By Terry E. Hogwood, Published by State Bar of Texas/Oil and Gas Section 2 Art. 16.029(a) 3 Adams v. Brown, 113 S.W.2d 310 (CCA – 1937) 4 Texas Property Code, Title 4. Actions and Remedies, Chapter 22. Trespass to Try Title If the suit filed by the title claimant is one in trespass to try title, it is enough to show that the State of Texas has parted with its title to the lands at issue (and usually other lands) via the issuance of a patent. 3 The patent usually shows up in the mandatory abstract of title furnished by the title claimant as required by the trespass to try title statute. 4 A certified copy of the pertinent patent will also show any potential reservations made by the State of Texas at the time of the issuance of the patent. • Part One - Not claimed by the State of Texas The title claimant must first affirmatively show, under the modern Dominion Statute, that the lands at issue are NOT claimed by the State of Texas. 2 found from appropriate evidence, will allow for a court/ jury to find that the title claimant has made a prima facie case for title to the lands made the basis of the title litigation to be vested in it. Or, under the proper evidence, a court may be able to find, as a matter of law, that title is vested in the title claimant under Art. 16.029.
If Not Adverse Possession, Then What?
The Dominion Statute, as presently and previously configured, consists of four distinct parts which, when
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N at i onal A ssociation of D i v i s i on O rder A nalys t s
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