Santiago Gonzalez, Jr. v. Hortencia Guerra Margo; et al.--Appeal from 229th Judicial District Court of Starr County

MEMORANDUM OPINION

No. 04-04-00736-CV

Santiago GONZALES, Jr.,

Appellant

v.

Al E. MARGO, Frederick J. Margo, Richard Margo, and Virginia Margo Jones,

Heirs of Hortensia Guerra Margo;

and Victor Hinojosa, Executor of the Estate of Minerva Maria Guerra Hinojosa,

Appellees

From the 229th Judicial District Court, Starr County, Texas

Trial Court No. 7646

Honorable Alex W. Gabert, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: July 13, 2005

REVERSED AND REMANDED

Santiago Gonzales, Jr. appeals a partial summary judgment // granted in favor of the appellees (hereinafter referred to as the Margos ) that awarded the Margos title to and possession of 56.76 acres of land referred to as Share 82 out of Porcion 81 (the Property ). // Gonzales contends that the trial court erred in granting the partial summary judgment because a genuine issue of material fact exists with regard to his adverse possession claim. We reverse the trial court s judgment and remand the cause to the trial court for further proceedings consistent with this opinion.

Standard of Review

The party moving for summary judgment carries the burden of establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant. Id. We indulge every reasonable inference and resolve any doubts in the nonmovant s favor. Id.

Discussion

Adverse possession is statutorily defined as an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person. Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990) (quoting Tex. Civ. Prac. & Rem. Code Ann. 16.021(1) (Vernon 2002)). The possession must not only be actual, but also visible, continuous, notorious, distinct, hostile (i.e., adverse), and of such a character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant. Rhodes, 802 S.W.2d at 645 (quoting Satterwhite v. Rosser, 61 Tex. 166 (1884)). Sporadic, irregular, and occasional use of land does not satisfy the adverse possession statutes. Harlow v. Giles, 132 S.W.3d 641, 646 (Tex. App. Eastland 2004, pet. denied).

Under adverse possession case law, there are two kinds of fences: casual fences and fences that designedly enclose an area. Rhodes, 802 S.W.2d at 646. If the fence existed before the claimant took possession of the land and the claimant fails to demonstrate the purpose for which it was erected, then the fence is a casual fence. Id.; Terrill v. Tuckness, 985 S.W.2d 97, 108 (Tex. App. San Antonio 1998, no pet.). Repairing or maintaining a casual fence, even for the express purpose of keeping the claimant s animals within the enclosed area, generally does not change a casual fence into a designed enclosure. Rhodes, 802 S.W.2d at 646. However, a claimant may so change the character of a casual fence that it becomes a designed enclosure, and evidence of such a substantial modification is sufficient to support a jury finding of adverse possession. Id. An exception to the designed enclosure requirement exists if the claimant can prove sufficient non-grazing use of the land such that the true owner would have notice of the hostile claim. Terrill, 985 S.W.2d at 108.

In Butler v. Hanson, the Texas Supreme Court primarily relied on the following four facts to distinguish the case from an earlier decision in a casual fence case: (1) the land was used constantly for grazing instead of cattle occasionally straying onto the land; (2) the land was contiguous with another tract of land owned by the adverse claimant; (3) the adverse claimant changed the character of the fence from a barbed wire fence to a net fence with barbed wire strands at the top and placed new posts between each old post; and (4) the general reputation in the community, based on testimony of tenants on both sides of the fence, was that the property in question belonged to the adverse claimant. 455 S.W.2d 942, 945-46 (Tex. 1970) (distinguishing Osborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781 (1954)); see also Butler v. Hanson, 432 S.W.2d 559, 562 (Tex. App. El Paso 1968) (detailing change to fence), aff d in part, 455 S.W.2d 942, 943 (Tex. 1940). In Rhodes, the Texas Supreme Court cited Butler to support the proposition that a claimant may substantially modify or change the character of a casual fence so that it becomes a designed enclosure. 802 S.W.2d at 646. The Fort Worth court relied on the distinguishing facts noted in Butler to uphold a finding of adverse possession, noting: (1) the disputed tract had been constantly used for grazing; (2) the disputed tract was contiguous to the adverse claimant s record title land, was fenced with the record title land, and both tracts were operated as a unit; (3) the ranch manager had rebuilt and replaced portions of the fence, repaired portions of the fence, and maintained the fence; and (4) the general reputation in the community was that the disputed property was part of the adverse claimant s ranch. Perkins v. McGehee, 133 S.W.3d 287, 293 (Tex. App. Forth Worth 2004, no pet.); see also Fish v. Bannister, 759 S.W.2d 714, 718-20 (Tex. App. San Antonio 1988, no writ) (applying distinctions drawn in Butler to uphold finding of adverse possession).

Reviewing the evidence under the applicable standard of review, we hold that the evidence in this case is sufficiently similar to the facts relied upon in Butler and Perkins to raise a genuine issue of material fact with regard to Gonzales s adverse possession claim. // First, Gonzales stated that Share 82 has been constantly used for grazing cattle since 1963. Second, Gonzales had record title to Share 83, and the northern boundary of Share 82 was contiguous with the southern boundary of Share 83. The two tracts were enclosed by a single fence and were operated as a unit, with water sources for the cattle placed on each tract. Gonzales simultaneously performed root plow operations on both tracts. Third, Gonzales rebuilt the fence on the western border of the tracts in 1963. Gonzales and the owner of the land to the south of Share 82 jointly replaced the fence on the southern boundary in 1972, slightly changing the boundaries of the two tracts. Gonzales reconstructed the fence on the northern boundary of Share 83 and locked a gated entry into the property. Finally, an inference can be made from Gonzales s receipt of payment for the seismic operations over the property and from Gonzales s leasing of the property for hunting that the general reputation in the community was that Gonzales owned both tracts.

Conclusion

Because the evidence raises a genuine issue of material fact with regard to Gonzales s adverse possession claim, the trial court erred in granting the partial summary judgment. The trial court s judgment is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.

Alma L. L pez, Chief Justice