Enclosed Land In the early 1900s, certain Texas land speculators sold small acreage tracts in various parts of the state to individuals located, inter alia, in the Midwest and the Northeast. These platted parcels were harbingers of the “booms” to come. In certain situations, the new owners paid for the parcels and continued to pay taxes while others allowed their parcels to be taken by foreclosure or tax sales. In other cases, the parcel has been purchased but taxes have not been rendered or paid. As we know, real property cannot be abandoned in Texas. It may escheat, but it cannot be abandoned. Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76, 80 (Tex. 1989); Abandonment of title to real property is not recognized in Texas. City of Corpus Christi v. McCarver, 275 S.W.2d 194, 196 (Tex. Civ. App.— San Antonio), rev’d on other grounds, 155 Tex. 153, 284 S.W.2d 142 (Tex. 1955); Pugh v. Clark, 238 S.W.2d 980, 984 (Tex. Civ. App.—Galveston 1951, writ ref’d n.r.e.); see also 4 F. Lange, Land Titles § 406 (Texas Practice 1961). Some of these parcels, sold out of these platted subdivisions, are now surrounded by the ranches out of which they were carved. In this situation and others, where the parcel is landlocked, special rules apply to adverse possession of these parcels. Section 16.031, Tex. Civ. Prac. & Rem. Code provides:
3. There are only two kinds of fences involved in adverse possession: designed enclosures OR casual fences. A fence is a casual fence if it existed before the party asserting adverse possession took possession of the land and the adverse possession claimant cannot demonstrate the purpose for which the fence was built. That is, for adverse possession purposes, a casual fence built by a third party (neither the true owner nor the claimant) for that party’s own purpose and it has no more effect than if same had never been constructed. Orsborn v. Deep Rock Oil Corp. , 153 Tex. 281, 267 S.W.2d 781 (Tex. 1954); Vineyard v. Brundrett , 42 S.W. 232 17 Tex. Civ. App. 147, 42 S.W. 232, 235 (1897, writ ref’d); Mead v. RLMC, Inc. , 225 S.W.3d 710 (Tex. App.—Fort Worth 2007, pet. denied). Rhodes v. Cahill , 802 S.W.2d 643 (Tex. 1990). 4. A casual fence cannot be changed to a designed enclosure through mere repair or maintenance, even if such repairs or maintenance were done for the express purpose of keeping the adverse possession claimant’s animals within the enclosed area. However, an adverse possession claimant may support a valid claim of adverse possession claim with evidence of such a fence, though not constructed by it, where the fence has been substantially modified by the claimant such that the fence’s character became a designed enclosure. Vineyard v. Brundrett , 42 S.W. 232 17 Tex. Civ. App. 147, 42 S.W. 232, 235 (1897, writ ref’d), Mead v. RLMC, Inc. , 225 S.W.3d 710 (Tex. App.— Fort Worth 2007, pet. denied), Butler v. Hanson , 432 S.W.2d 559 (Tex. Civ. App. —El Paso), aff’d, 455 S.W.2d 942 (Tex. 1970), Wells v. Johnson , 443 S.W.3d 479 (Tex. App.—Amarillo 2014, pet. denied). 5. The placement of a fence (or parts of an enclosure) by the adjoining landowner to “fence out” or keep the adverse claimants (and their predecessors in title) from entering onto the adjacent property does not count as a designed enclosure. Rather this situation results in the fence(s) being classified as a casual fence. Sims v. Cage , 523 S.W.2d 486, 488-490 (Tex. Civ. App.— Houston [1st Dist.] 1975, writ ref’d n.r.e.).
16.031. Enclosed Land
(a) A tract of land that is owned by one person and that is entirely surrounded by land owned, claimed, or fenced by another is not considered enclosed by a fence that encloses any part of the surrounding land. (b) Possession of the interior tract by the owner or claimant of the surrounding land is not peaceable and adverse possession as described by Section 16.026 unless: (1) the interior tract is separated from the surrounding land by a fence; or (2) at least one- tenth of the interior tract is cultivated and used for agricultural purposes or is used for manufacturing purposes.
This Section 16.031 is directed at the ten year statute. Presumably, the surrounding land owner
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