Joe B. Kercheville v. Ronald G. Carson and Charles P. Singstad; Jack B. Johnson and Mickey Johnson--Appeal from 288th Judicial District Court of Bexar County

No. 04-00-00287-CV

Joe B. KERCHEVILLE,
Appellant
v.
Ronald G. CARSON, Charles P. Singstad, Jack B. Johnson, and Mickey Johnson,
Appellees
From the 288th Judicial District Court, Bexar County, Texas
Trial Court Nos. 98-CI-18258 & 99-CI-11742
Honorable Michael Peden, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Sarah B. Duncan, Justice

Delivered and Filed: February 28, 2001

REVERSED AND REMANDED

Joe B. Kercheville appeals the trial court's summary judgment against him in his adverse possession suit against Ronald G. Carson, Charles P. Singstad, Jack B. Johnson, and Mickey Johnson. We hold the summary judgment record raises a material issue of fact on Kercheville's adverse possession claim and therefore reverse the trial court's judgment and remand the cause to that court for further proceedings not inconsistent with this opinion.

Factual and Procedural Background

In 1980, Joe B. Kercheville purchased approximately 44 acres of land, the platted western boundary of which lies just beyond a private road. Beyond the platted western boundary of Kercheville's property is Scenic Loop Estates, which was subdivided and platted in the mid-1980s. Lot 10 of this development is owned by Ronald G. Carson; Lots 12-14 are owned by Jack and Mickey Johnson; and Lot 21 is owned by Charles P. Singstad. Just to the west of the eastern boundaries of these lots lies a fence.

At the time Kercheville purchased his property, he was told by his grantors it extended to the fence, which was built to delineate the property boundary line. After 1980, Kercheville repaired the fence and occasionally mowed the grass and grazed cattle on the strip of land bordered by the fence. Additionally, in the mid-1980s, Kercheville planted approximately 200 juniper trees somewhere on or near the disputed strip of land. In his deposition, Kercheville testified he and his wife planted the juniper trees on the western platted boundary of his property. However, in his earlier affidavit, he testified they planted the juniper trees "immediately within the fence line in order to provide additional privacy and further physical impediment to any would-be trespasser and to delineate the property line."

In late 1998, Kercheville sued Carson and Singstad seeking to establish title by adverse possession to the narrow strip of land between the platted western boundary of his property and the fence line. Kercheville later added as defendants Jack and Mickey Johnson. Each of the defendants counterclaimed for declaratory judgments establishing they hold superior title to the disputed land and attorney's fees. The trial court granted the defendants' motions for summary judgment on Kercheville's adverse possession claim and awarded the defendants their attorney's fees.

Standard of Review

We review a motion for summary judgment under the de novo standard of review on appeal. See Valores Corporativos, S.A. de C.V. v. McLane Co., 945 S.W.2d 160, 162 (Tex. App.-San Antonio 1997, writ denied). We will thus affirm traditional summary judgment under Rule 166a(c) only if the summary judgment evidence establishes there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law on a ground set forth in the motion. See Tex. R. Civ. P. 166a(c). We will affirm a "no evidence" summary judgment under Rule 166a(i) only if the respondent fails to produce summary judgment evidence raising a genuine issue of material fact on each challenged element. See Tex. R. Civ. P. 166a(i). In deciding whether the summary judgment evidence raises a genuine issue of material fact, we view as true all evidence favorable to the respondent and indulge every reasonable inference and resolve all doubts in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

Discussion

Kercheville contends the trial court erred in rendering a summary judgment against him on his adverse possession claim because the summary judgment record raises a material issue of fact on his adverse possession claim. We agree.

Kercheville seeks to establish his title to the disputed land by adverse possession for ten years. See Tex. Civ. Prac. & Rem. Code Ann. 16.026 (Vernon 1986). Adverse possession is "an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and hostile to the claim of another person." Id. 16.021(1). "[P]lanting a hedge on the asserted property line of the tract to create a barrier or 'fence' between the properties is a sufficiently permanent, visible and unequivocal act to evidence a hostile character of possession which is sufficient to give notice to the true owner of the claimant's adverse possession." Julien v. Baker, 758 S.W.2d 873, 877 (Tex. App.-Houston [14th Dist.] 1988, writ denied), cert. denied, 493 U.S. 955 (1989).

As noted above, the evidence regarding the location of the juniper trees planted by the Kerchevilles is disputed. In his deposition, Kercheville testified he and his wife planted the trees on the western platted boundary of his property; but, in his earlier affidavit, he testified they planted the trees "immediately within the fence line in order to provide additional privacy and further physical impediment to any would-be trespasser and to delineate the property line." Given this conflict, and the holding in Julien, we hold the trial court erred in granting the defendants' motions for summary judgment. See Randall v. Dallas Power & Light Co., 752 S.W.2d 4, 5 (Tex. 1988) ("a deposition does not have controlling effect over an affidavit"). Accordingly, without addressing the merits of the dependent attorney's fees issue, we reverse the trial court's judgment and remand the cause to that court for further proceedings not inconsistent with this opinion.

Sarah B. Duncan, Justice

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