Justice Velia Meza
The San Antonio Court of Appeals has upheld a trial court order granting summary judgment to defendants who acquired title to the disputed property by adverse possession.
All Known, Unknown, and Known but Unfound Heirs, Executors, Administrators, Successors, Assigns, and Personal Representatives of Louis and Eliza Eckford, et al. v. Lou Eda Lorth Stubbs Nixon, FRJK Legacy Family Limited Partnership, Ellen Ann Korth Vickers, John Frederick Vickers, Michael Steven Vickers, Ellen Ann Vickers, and William Korth Vickers (No. 04-24-00183-CV; (October 8, 2025) arose from a dispute between the Eckford and Korth families over ownership of a 147.5-acre tract in Karnes County. The families battled it out in court for a decade before a jury returned a verdict finding that the Eckfords owned a 17/36 interest in the property, as they asserted. But the trial court signed a judgment against the verdict, awarding full ownership of the property to the Korths. The Eckfords appealed, seeking reinstatement of the jury verdict.
In an opinion by Justice Meza, the court of appeals affirmed. In a nutshell, the property became valuable in the 1990s, when Burlington Resources began negotiating an oil and gas lease with the Korths, who had acquired the entire property on the death of Eliza Eckford in 1939. The problem was that Eliza only owned 19/36 of the property, whereas her children owned the other 17/36. But since that time, various Korths occupied the land. Burlington, however, discovered the Eckfords’ interest and entered into leases with them. In 2012 Burlington petitioned for a receivership to represent the interest of the Eckford heirs. The Korths intervened, asserting that they had adversely possessed the Eckfords’ interest. In the first go around, the trial court granted summary judgment for the Korths, but the court of appeals reversed, holding that the Korths didn’t prove ouster as a matter of law. Hardaway v. Nixon, 544 S.W.3d 402, 413 (Tex. App.—San Antonio 2017, pet. denied). On remand, the case went to the jury, which decided for the Eckfords despite finding that between 1939 and 2012, no Eckford had ever had anything to do with the property. The trial court granted the Korth’s motion for JNOV, ruling that the Korths had established entitlement to judgment under the dominion statute. § 16.029(a), CPRC.
The court held that the dominion statute did not support judgment as a matter of law, but that the Korths established title by adverse possession.The Korths alleged that they “possess superior title to the Eckfords through title by limitations.” § 16.030(a), CPRC. Nobody disputed that the Korths got the property from Eliza Eckford’s in 1939. They pointed to a deed of trust she executed listing the full property, not half, as collateral for a loan from Fritz Korth. They argued that a prior conveyance from the heirs to Eliza must have occurred. Even if it didn’t, they continued, they obtained the heirs’ interest through adverse possession, presumed grant, or the dominion statute. Observing that SCOTX hasn’t ever reviewed the 1931 dominion statute, the court determined that its requirement for a prima facie showing that title to property had passed (evidenced by 25 years of property tax payments) creates a rebuttable presumption. Consequently, as SCOTX has ruled, it creates a presumption of fact and does not shift the burden in a summary judgment proceeding. The dominion statute by itself could not entitle the Korths to judgment as a matter of law, regardless of whether the Eckfords rebutted the presumption or not.
The Korths’ adverse possession claim was more successful. “When adverse possession is alleged between cotenants,” the court observed, “the limitations period begins when the contenancy is repudiated and notice of that repudiation is ‘brought home’ to the other cotenant. Notice of repudiation, often termed ouster or disseizen, is shown by ‘unmistakable and hostile acts that would put other cotenants on notice of [an] intent to oust them from the leasehold.” (citations omitted). The Korths contended that the 1939 deed and judicial decree confirming the fee simple sale to Fritz Korth conclusively proved ouster. The court agreed. The 1939 deed “fully described the metes and bounds of the property and was duly recorded with the county clerk” and incorporated the probate decree that went with it. Since Eliza Eckford only owned an undivided one-half interest in the property, “she could not convey more than what she owned.” Consequently, “the 1939 conveyance of a fee simple interest in the entire property was unmistakably inconsistent with—and hostile to—the heirs’ interest.” And even though the Korths “occasionally acknowledged their shared cotenancy,” that didn’t “destroy repudiation a create a fact issue. At mos, acknwoledgments of the Eckfords’ interest indicate that Fritz Korth’s heirs were unsure whether he truly owned the property in fee simple.” (citations omitted). Regardless of what the Korths may have believed about the ownership situation, “the Eckfords were on notice that the Korths’ possession was hostile.” The documents of conveyance thus proved constructive ouster as a matter of law.
Additionally, the Korths exclusively possessed the property for 73 years prior to this suit. This “long-continued possession under a recorded deed” was enough to give constructive notice of repudation. The Eckfords conceded that “they had never attempted to enter the land, paid property taxes, listed the tract as an asset in any written document, paid for improvements, nor contributed sums of money for upkeep during the period of the Korths’ possession.” So, having conclusively established that constructive ouster occurred, the court had little difficulty finding that the Korths met the limitations requirement, regardless of which statutory limitations period (5, 10, and 25 years) applied to their claim. The record showed that the Korths met the hostility requirement by maintaining barbed-wire fencing and locked gates and leasing the land for grazing and oil and gas exploration continuously for at least 25 years prior to suit. They also have held the tract “under a series of recorded deeds, each containing language inconsistent with the Eckfords’ interest.” In short, the evidence clearly shows that the Korths’ “actual, visible, hostile, and peaceable possession of the property at issue for three-quarters of a century.” The trial court’s summary judgment order held up.
Justice Valenzuela concurred in the court’s decision, but she wouldn’t have reached the the dominion statute issue because of the paucity of case law and lack of SCOTX authority on the subject.
