3. Hostile intent does require the adverse possessor to claim the lands at issue to the exclusion of all other claimants or owners. The claim of the adverse possessor must be inconsistent with the claims of all other rivals to the fee simple title to the lands at issue. The belief that one is the rightful owner and has no competition for the ownership of the land is sufficient intention of a claim of right.” Estrada v. Cheshire , 470 S.W.3d 109 (Tex. App.— Houston [1st Dist.] 2015, pet. denied); Kazmir v. Benavides , 288 S.W.3d 557 (Tex. App.—Houston [14th Dist.] 2009, no pet.). 4. Hostile possession must be continuous and consistent and must last for the duration of the statutory period. Balli v. McManus , 311 S.W.2d 933 (Tex. Civ. App. —San Antonio 1958, writ ref’d n.r.e.). 5. “The test for hostility is whether the acts performed by the claimant on the land and the use made of the land were of such a nature and character as to reasonably notify the true owner of the land that a hostile claim was being asserted to the property. Winchester v. Porretto , 432 S.W.2d 170, 174-75 (Tex. Civ. App.—Houston [1st Dist.] 1968, writ ref’d n.r.e.). Whether possession is hostile and continuous are questions of fact …” Terrill v. Tuckness , 985 S.W.2d 97, 109 (Tex. App.— San Antonio 1998, no pet.) (emphasis added). 6. The acts of the adverse possessor must reflect an open, obvious assertion of exclusive ownership of the lands at issue. Villarreal v. Guerra, 446 S.W.3d 404 (Tex. App.—San Antonio 2014, pet. denied). 7. Where only grazing of cattle on the disputed lands has occurred, the construction of a fence is required to reflect evidence of a hostile claim by the adverse claimant. Orsborn v. Deep Rock Oil Corp. , 267 S.W.2d 781, 785 (Tex. 1954) (emphasis added). Thus, if the adverse use is a claim by the adverse possessor of having grazed the land for ten years, the claim will fail without proof of a designed enclosure. Burden of Proof 1. Where two or more claimants to the ownership of a tract are involved in litigation, each claimant
• First, what is adverse possession? Coupled with that question, how long must an adverse possessor cultivate or use the land? How long must the cultivation or use continue i.e. for some or all of the ten years? Second, if there is no fence or title instrument containing a property description conveying the lands at issue to the adverse possession claimant, what actions on the part of the adverse possessor are required to claim a) 160 acres or less and b) more than 160 acres? • Last, what is required to claim a property by adverse possession where there is a fence surrounding all or part of the claimed premises? Ultimately, in the absence of a title instrument containing a legally sufficient description , the question becomes whether adverse possession under the statute can be perfected in the absence of an adequate fence circumscribing the lands claimed/at issue? Hostile Intent Initially, the adverse possessor must have the requisite “intent” to claim and ultimately own the lands at issue. The rules regarding the knowledge and intent of the adverse possessor have been developed over time: 1. The first element of hostile intent is whether the acts performed by the adverse possessor were of such a character as to reasonably notify the then legal owner that a hostile claim was being made by the adverse possessor to specific lands. Such notification to the true legal owner is based on the acts of the adverse possessor visibly appropriating the lands at issue such that the true owner has or would have notice of such appropriation. Estrada v. Cheshire , 470 S.W.3d 109 (Tex. App.—Houston [1st Dist.] 2015, pet. denied). 2. Hostile intent does not require that the adverse possessor intend to dispossess the rightful owner or that there is a rightful owner. Tran v. Macha , 213 S.W.3d 913, 914 (Tex. 2006); Kazmir v. Benavides , 288 S.W.3d 557 (Tex. App.—Dallas 2009, no pet.); Estrada v. Cheshire , 470 S.W.3d 109 (Tex. App.— Houston [1st Dist.] 2015, pet. denied).
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