very clear that, absent a memorandum of title (a properly recorded document specifically identifying the lands claimed and describing those lands in accordance with the Statute of Frauds), not only is a limitation claimant limited to a maximum of 160 acres per the statute BUT it must also describe that 160 acres in its petition/answer and prove adverse possession as to those lands. Otherwise, absent the proof of adverse possession and proper description of the claimed 160 acres, the limitation claimant will lose its adverse possession claim. “…When a party is in possession of land, of which he has held adverse possession of for 10 years, and claims under no muniment of title or color of title which fixes the boundaries of his claim, he may under our statute, assert title to 160 acres without showing actual occupancy of the whole, provided that the tract so claimed embraces the land of which he has had actual possession, and provided further that he describes in his pleading the 160 acres to which he asserts title, and that he prove upon the trial that, while occupying a part, he claimed the whole. Louisiana. & Texas Lumber Company v. Washington Kennedy, et al , 103 Tex. 297, 303, 126 S.W. 1110 (1910); Texas & N. O. Ry. Co. v. A.G. & J.C. Broom , 53 Tex. Civ. App. 78, 114 S.W. 655 (1908); La. & Tex. Lbr. Co. v. Stewart , 61 Tex. Civ. App. 255, 130 S.W. 199 (1910); Kirby Lumber. Co. v. Conn. , 114 Tex. 104-110, 263 S.W. 902 (1924). “Nor did either of these two appellees by his pleadings plead the field notes to the larger tract, and his claim to 160 acres undefined to be selected so as to include his improvements, and without such pleadings they cannot recover. Bering v. Ashley 30 S.W. 838 (Tex. Civ. App. 1895); Parker v. Cameron & Co. , 39 Tex. Civ. App. 30, 86 S.W. 647 (1905); Rice’s Ex’rs v. Goolsbee , 45 Tex. Civ. App. 254, 99 S.W. 1031 (1907); McAdams v. Hooks , 47 Tex. Civ. App. 79, 104 S.W. 432 (1907); Davis v. Receivers, Houston Oil Co. , 50 Tex. Civ. App. 597, 111 S.W. 219 (1908); Smith v. Simpson Bank , 52 Tex. Civ. App. 108, 113 S.W. 568 (1908). Walker v. Maynard, 31 S.W.2d 168, 169 (Tex. Civ. App.— Austin 1930, no writ.)
Qualifying Fence For Adverse Possession Under Texas law, not all fences are equal. That is, some fences surrounding a tract of land will allow the claimant to the title to assert a limitation title to that amount of acreage then under fence. Other fences, typically not constructed by the adverse possession claimant, and which may or may not fully enclose the entire tract of land, may or may not be considered in the determination of whether adverse possession has taken place. It must be remembered that typically, under the ten (10) year statute where there is no conveyancing instrument describing the lands sought to be claimed by the adverse possession claimant, it is the act of construction of the fence, fully fencing the lands in question, coupled with hostile, adverse possession of the lands within the fence, that ripens limitation title in the claimant. To answer the question of what is a qualifying fence to establish adverse possession, it is easier to glean from the pertinent cases what is NOT a qualifying fence (casual fence).
1. If the fence was not built by the adverse possession claimant, nor any of his/her
predecessors in title, and not built for the express purpose of effecting an enclosure, then the fence is a casual fence. It is incumbent on the adverse possession proponent to identify who built the fence and why it was constructed, i.e. to create an enclosure around the claimed land or merely (for instance, where part of the fencing was constructed by third parties) to keep certain parties out of the lands. Orsborn v. Deep Rock Oil Corp ., 153 Tex. 281, 267 S.W.2d 781 (Tex. 1954), West Production Co. v. Kahanek, 121 S.W.2d 328 (Tex. Comm’n App. 1938) ; Vineyard v. Brundrett , 42 S.W. 232 17 Tex. Civ. App. 147, 42 S.W. 232, 235 (1897, writ ref’d). Rhodes v. Cahill , 802 S.W.2d 643 (Tex. 1990). 2. Our adverse possession statutes do not contemplate that a claimant can, in establishing his claim, benefit from an enclosure casually created by third persons in effecting a different purpose of their own, and who are strangers to both the adverse possession claimant and the true owner of the enclosed land. West Production Co. v. Kahanek, 121 S.W.2d 328 (Tex. Comm’n App. 1938).
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