2. Where only grazing is occurring on the surface, without a sufficient enclosure (see below), the visible and hostile nature of the adverse possession cannot, as a matter of law, be ascertained by the record title owner. Vineyard v. Brundrett , 42 S.W. 232 (Tex. Civ. App.—Galveston 1897, writ ref’d). 3. The construction of fences and use of the fenced lands for grazing purposes provides sufficient notice to the record title owner of the hostile claim by the adverse claimant. Orsborn v. Deep Rock Oil Corp. , 267 S.W.2d 781, 787 (Tex. 1954). 4. There is a significant exception to the general rule that mere grazing of unenclosed lands is not, as a matter of law, adverse possession. This exception comes about when, even though not sufficiently enclosed with a fence, the adverse claimant uses the lands for other uses consistent with a hostile claim of ownership. As will be seen from the case excerpts, whether or not such other uses qualifies the possession as adverse possession is and remains a question of fact . a. “The Tuckness defendants argue that, even if designed enclosure is to be applied here, they fall within an exception to the rule because they have shown more than mere grazing in order to claim the land by adverse possession.” See Fish v. Bannister , 759 S.W.2d 714, 718 (Tex. App.—San Antonio 1988, no writ). They argue that their deeds as well as a jeep trail on their side of the creek show other claims to the property. In addition, there is some testimony that they leased all their property, including the 2.2 acres to hunters. In Fish , we held, “[A]ctive and total use of the pasture grazing capacity to the exclusion of all others, with the claimant’s livestock continuously present and visible evidences the required notice of the hostile claim,” making evidence of a designed enclosure unnecessary.” Fish , 759 S.W.2d at 718. “ However, the Tuckness defendants have not shown sufficient non-grazing use to make use of the exception.” Terrill v. Tuckness, 985 S.W.2d 97, 108 (Tex. App. —San Antonio 1988, no pet.) (emphasis added).
finding of adverse possession where, in addition to open grazing, the adverse claimants proved that they had built fences on two sides of the disputed property, maintained a third fence, erected corrals, pens, and built a small shack. Butler , 812 S.W.2d at 424-25. There was evidence that the adverse claimants planted crops on the tract in dispute. Id . at 425. In addition, when the appellees asked the adverse claimants for permission to hunt on the tract, they were refused and “chased off.” Id . The appellees were paid by the adverse claimants to clear part of the land. Id . Nothing even remotely similar has taken place here. The evidence is legally insufficient to allow the Tuckness defendants to claim an exception to that principle. The adverse possession claim under the 10-year naked possession statute fails.” Id. b. “ The evidence in this record, when viewed in the light most favorable to the jury verdict, clearly shows that in addition to constant, continuous grazing, the appellees made other significant uses of the disputed tracts for at least ten years. The evidence shows that although no fence was proper along the Rio Grande River boundary, appellees built, or caused to be built, both the “Mendez” and the “Garcia” fences, and maintained and repaired the “Margo” fence exclusively; that during this period, appellees grazed cattle and kept goats and pigs on the disputed land; that corrals, pens and a small shack or box car trailer were built or placed on the disputed land by the appellees; that the appellees at different times cultivated the land in question by the planting of corn and sorghum; that permission for hunting and fishing on the disputed land was sought from the appellees and those who entered on the land without permission were chased off by the appellees; that it was general knowledge that the land belonged to the appellees; and, that the appellees were paid $1,000.00 by Amando Pena to enter and clear parts of the disputed land for a street. We hold this is sufficient evidence to support the jury findings in favor of the appellees.” Butler v. De La Cruz , 812 S.W.2d 422, 424 (Tex. App.—San Antonio 1991, writ denied) (emphasis added).
“An example of how the exception is applied is seen in Butler , where this court upheld a jury
5. Texas case law has supported the ten year limitation statute in all of its permutations. It is
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