Apparently, acts of dominion of various owners/claimants to a tract of land may be tacked together in order to reach the mandated 25 year period called for by the Dominion Statute. 16 These two cited cases appear to conflate Article 16.029 with Article 16.028, two entirely different statutes; Article 16.028 dealing strictly with adverse possession and Article 16.029 being the statute under review in this article and decidedly NOT an adverse possession statute. If tacking is required to arrive at the requisite 25 years for the claim/dominion portion of the Dominion Statute, then the foregoing cases may stand for a judicial acknowledgement of its legal viability. This is at best a murky and unclear rule given both courts’ continued conflation of the 25 year adverse possession statute with the Dominion Statute. Hunting, patrols on some regular basis to ensure that no one is adversely claiming the lands at issue, fishing and other surface activities may or may not amount to dominion for purposes of the statute. Dominion (and claim) will be issues of fact which the title claimant will have to prove by a preponderance of the evidence. What is known is that there must be sufficient proof of SOME physical conduct on the lands itself in order for the title claimant to prevail on its dominion/claim burden of proof. 17 • Part Three - Payment of Taxes Since Article 16.029 is decidedly not an adverse possession statute, strict compliance with its express dictates is required in order to be able to assert and prove a prima facie case reflecting passage of the title to the lands at issue to the party asserting title under the Dominion Statute. 18 After proving by a preponderance of the evidence that Parts One and Two have been satisfied by the title claimant, it is incumbent that Part Three, Payment of Taxes, also be shown to have been complied with in accordance with the dictates of the statute and case law. First, and foremost, the title claimant must prove that it has paid taxes for the previous twenty-five (25) years next preceding the filing of the title litigation. 19 More significantly, the requisite property taxes must be paid annually before becoming delinquent for each of the twenty-five (25) years . 20 NOTE: It should be noted that at least one case in Texas does not restrict the title claimant to the immediate twenty-five (25) year preceding the filing of the title litigation. 21 This case
allows for the introduction into evidence proof of the timely payment of taxes for any twenty-five (25) year time period for which they were due and owing. In the author’s opinion, this is not the correct law on the issue but is pointed out as a potential problem area given the Texas Supreme Court’s reluctance to allow for the imposition of firm, understandable rules of property.
The statute, in its present form, requires:
….and have paid taxes on it annually before becoming delinquent for as long as 25 years. 22
The statute is silent on exactly what taxes must be paid within the specified time period. Caselaw has filled in this void and specifically holds that BOTH county taxes and school district taxes must be paid for the twenty-five (25) year time period as well as paid prior to delinquency. 23 Caselaw has also clarified that, where a title claimant is asserting that it paid the relevant taxes for the requisite period of time on the tract of land at issue, that it must own record title to that land or be able to prove by relevant evidence that the taxes it paid was for land which it did not own record title to. The law presumes that a taxpayer, when it tenders taxes, is only paying property taxes on its own property. 24 In this case, the title claimant claimed that it paid taxes on the lands at issue. However, the only evidence on the payment of taxes by the title claimant was that it paid taxes on the ranch. No tax records were introduced nor was any evidence submitted which reflected that the taxes paid by the title claimant 16 Prewitt v. Norsworthy, NO. 09-15-00090-CV (CCA 2015); Estrada v. Cheshire, 470 S.W.3d 109 (CCA - 2015) 17 L. C. Purnell v. Gulihur, 339 S.W. 2d 86 (CCA – 1960); Estrada v. Cheshire, 470 S.W.3d 109 (CCA - 2015); Wiggins v. Houston Oil Co. of Texas, 203 S.W.2d 252 (CCA - 1947) 18 Art. 16.029(a) 19 Adams v. Brown, 113 S.W.2d 310 (CCA – 1937); Pagel v. Pumphrey, 204 S.W.2d 58 (CCA – 1947); Gilbert v. Lobley, 231 S.W. 2d. 969 (CCA – 1950) aff’d 236 S.W. 2d. 121 20 Adams v. Brown, 113 S.W.2d 310 (CCA – 1937) Pagel v. Pumphrey, 204 S.W.2d 58 (CCA – 1947); Gilbert v. Lobley, 231
S.W. 2d. 969 (CCA – 1950) aff’d 236 S.W. 2d. 121 21 Purnell v. Gulihur, 339 S.W. 2d. 86 (CCA – 1960) 22 Art. 16.029 (a)(2) (emphasis added) 23 Welch v. Mathews, 642 S.W. 2d 289 (CCA – 1982)
24 NJ Williams Family Partnership, Ltd. v. Winn, No. 03-07-00724- CV (CCA – 2010); Welch v. Matthews, 642 S.W.2d 829 (CCA – 1982)
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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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