Paul D. McInnis v. H. G. Counts, Trustee--Appeal from 33rd District Court of Burnet County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-277-CV
PAUL D. McINNIS,

APPELLANT

 
vs.
H. G. COUNTS, TRUSTEE,

APPELLEE

 
FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
NO. 11,057, HONORABLE D. V. HAMMOND, JUDGE

Paul McInnis appeals from the judgment rendered in a boundary-dispute suit with his neighbor H. G. Counts. We will affirm the judgment.

 
THE CONTROVERSY

In 1978 McInnis purchased a city lot from Mr. and Mrs. Cloud. A hedge divided McInnis's lot from an abutting lot to the north; the Clouds told McInnis that the hedge was the boundary between the lots. In 1982 Counts purchased the abutting lot to the north. A survey revealed that the true boundary between the two lots lay seven and one-half feet south of the hedge. The McInnis house encroached slightly upon this seven and one-half foot strip, as did several less substantial improvements.

Counts sued in 1987 for declaratory judgment establishing the boundary according to the survey. McInnis sued in a counterclaim to recover prescriptive title to the strip under the terms of the ten-year statute. Tex. Civ. Prac. & Rem. Code Ann. 16.026 (West 1986). In its final judgment, the trial court awarded Counts declaratory relief establishing the boundary designated in the survey, ordered other relief not disputed on appeal, and ordered that McInnis take nothing by his counterclaim.

The trial-court judgment rests upon a jury's verdict. Among other findings, the jury concluded that McInnis and his predecessors in possession were in actual possession of the disputed strip of land, continuously using it, and exercising dominion over it as if it were theirs exclusively, all for a period in excess of ten years before suit was filed. However, the jury declined to find from a preponderance of the evidence that the successive owners claimed title to the strip "adversely" to anyone else, an essential finding in a prescriptive-title claim under section 16.026.

McInnis appeals from the trial-court judgment on the single point of error that he established as a matter of law a prescriptive title under section 16.026.

 
DISCUSSION AND HOLDINGS

McInnis argues the evidence was conclusive on the essential fact the jury declined to find--that his nine years of possession of the disputed strip, when joined with the Clouds' last year of possession, amounted to ten years of "adverse possession" when Counts interrupted that possession by his suit. Unless the evidence shows conclusively that the Clouds' possession constituted "adverse possession," McInnis's appeal fails. (1)

To constitute "adverse possession," a claimant's "actual and visible appropriation" must be "commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person." Tex. Civ. & Rem. Code Ann. 16.021(1) (West 1986) (emphasis added). The claim of right may be communicated by actual notice to the other person. There is no evidence of such notice in the present case. In other instances, the notice may be communicated by constructive notice to the other person. This occurs when the claimant's acts of dominion over the land are sufficiently pronounced, hostile, and inconsistent to charge the other person with constructive notice that the acts are taken under a claim of right. Nona Mills Co. v. Wright, 102 S.W. 1118 (Tex. 1907). In either case, the acts of dominion must be taken under a claim of right. It is on this point that McInnis fails in his contention that the evidence established adverse possession as a matter of law.

Mr. and Mrs. Cloud described in their testimony their various acts of dominion over the disputed strip. They testified, however, that their acts were taken in a belief that the hedge corresponded to their legal boundary and that they never intended to claim any part of the anyone else's property but only the property that was theirs. The evidence is undisputed that the hedge did not in fact correspond to the legal boundary, fixed in the various owners' respective deeds; the legal boundary lay instead seven and one-half feet south of the hedge and along the line described in the 1982 survey.

We believe the decision in Ellis v. Jansing, 620 S.W.2d 569, 571-72 (Tex. 1981) controls McInnis's contention on appeal. There, as here, the claimant under the ten-year statute was obliged to rely upon the possession of his immediate predecessor in possession. The predecessor exercised dominion over a narrow strip in a mistaken belief that a retaining wall corresponded to the legal boundary fixed in his deed and, he testified, he never intended to claim land other than that described in his deed. The court held his testimony defeated as a matter of law an intention to claim the strip adversely to the true owner, saying "[n]o matter how exclusive and hostile to the true owner the possession may be in appearance, it cannot be adverse unless accompanied by the intent to make it so." Id. Thus, if one assumes the Clouds' acts of possession were sufficiently pronounced and hostile to imply they were taken under a claim of right hostile to that of the record owner, their own testimony defeats that implication as a matter of law because they stated they did not intend to claim property outside that described in their deed. Simply stated, such testimony established that the acts were taken under a mistake and not under a claim of right.

Jansing had been criticized in this respect. See Judson T. Tucker, Adverse Possession in Mistaken Boundary Cases, 43 Baylor L. Rev. 389, 400-405 (1991). We are nevertheless obliged, of course, to follow the decision. We hold accordingly.

Under his single point of error, McInnis urges certain other arguments to the effect that the jury's answers to questions 3, 4, 5, and 6 established conclusively his claim of adverse possession; and the jury's failure to find that his claim was "adverse" is in conflict with the jury's answers to these other special issues.

McInnis argues the following: Counts and his predecessors in title treated the property south of the hedge as belonging to McInnis, and there is no evidence that McInnis used the strip with their permission; no other evidence controverts McInnis's claim of adverse possession; and the jury's answer to question number 5 established that the various owners of the lot north of the hedge were uncertain, before 1978, concerning the exact location of the boundary in question. These are immaterial. McInnis was bound to recover on his claim, if at all, by establishing the elements necessary to recover under the ten-year statute. The burden of adducing evidence lay upon him, not upon the record owner.

The jury's answers to qeustions 3, 4, and 6 are similarly immaterial. These establish the following: Counts had notice of McInnis's possession and occupancy of the strip when Counts purchased his lot; Counts knew of the encroachments upon the narrow strip when he purchased his lot; and Counts waived the right to complain of any encroachments upon the narrow strip because he purchased his lot with knowledge of the encroachments, then sold and re-purchased the lot without reference to them. These answers are immaterial for several reasons. We shall mention only one--they do not refer to the Clouds' acts of adverse possession which McInnis had to establish because his own possession encompassed only nine years.

We hold accordingly and overrule the point of error.

 

Finding no error, we affirm the trial-court judgment.

 

John Powers, Justice

[Before Justices Powers, Aboussie and Kidd]

Affirmed

Filed: October 21, 1992

[Do Not Publish]

1. McInnis is obliged to rely upon the Clouds' possession because he first entered into possession of the disputed strip when he purchased his lot in 1978. Such "tacking" of a predecessor's possession is, of course, expressly authorized by Tex. Civ. Prac. & Rem. Code Ann. 16.023 (West 1986).

 

It would be immaterial that a prescriptive claim matured before McInnis entered into possession in 1978. A matured prescriptive claim may be conveyed only by written instrument. See Dale v. Stringer, 570 S.W.2d 414, 416 (Tex. Civ. App.--Texarkana 1978, writ ref'd n.r.e.) and authorities cited therein.