Claims to title to real property by adverse possession are generally so fact intensive that they easily defeat a motion for summary judgment. But in Kothmann v. Menzies (No. 04-21-00451-CV), the San Antonio Court of Appeals found the rare exception.

The land at issue in the case, about 37 acres of pasture in Menard County, was once owned by the General Land Office. In 1952 GLO deeded the property to Volkmann, who owned an adjoining tract. Since that time, however, the property has been enclosed by a fence surrounding the adjacent tract, owned by the Menzies family since the 1930s. In 1960 Volkmann and his son attempted to remove the fence and build a new one uniting the disputed tract with their land. One of the Menzies clan showed up and warned them off the property under threat of violence. Volkmann retreated and did not repeat the effort. Shortly thereafter the Menzies filed suits to quiet title to the disputed property, but they were dismissed for want of prosecution in 1979. In 2015, Volkmann’s son entered into an agreement with the Menzies to replace the fence in its current location and to split the cost. Many years prior to this, Volkmann’s son had deeded his tract to his son, the plaintiff Kothmann. The Menzies’ filed a trespass to try title action in 2020 asserting that they had acquired the property by adverse possession or acquiescence. Both parties moved for summary judgment. The trial court denied Kothmann’s motion and granted summary judgment in favor of the Menzies. Kothmann appealed.

The court of appeals affirmed, granting title to the Menzies by adverse possession. The court’s analysis involved the construction of § 16.021(1), CPRC, and the relevant case law. The statute defines adverse possession 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.” The 10-year statute of limitations applies to “real property held in peaceable and adverse possession by [a possessor] who cultivates, uses, or enjoys the property” § 16.026(a), CPRC. “Peaceable possession” means “possession of real property that is continuous and is not interrupted by an adverse suit to recover the property.” § 16.021(c), CPRC.

Kothmann attempted to argue that he was entitled to summary judgment because the Menzies did not conclusively show that the fence was a “designed enclosure” rather than a “casual fence.” The “casual fence” doctrine, however, only applies if the only notice of an adverse claim arises from grazing the land. Put another way, the doctrine works only when there is no other form of notice, such as a verbal assertion, by the adverse party. Here the Menzies clearly gave such notice (threatening to fight for it) and Kothmann’s predecessors didn’t do anything about it. The only conclusion a reasonable factfinder could reach was that the Menzies made a hostile claim of right to the property in 1960 and that Menzies has enjoyed the possession and use of the property since then. The trial court did not err, the court held, “by concluding that appellees’ purported failure to establish a ‘designed enclosure’ neither conclusively negated an essential element of their claim nor raised a genuine issue of material fact to preclude summary judgment” (citations omitted).

Regarding the 1960 lawsuits, Kothmann argued that since they were dismissed for want of prosecution, the Menzies must have abandoned their claim to possession. Not so, replied the court. A dismissal for want of prosecution is not a determination on the merits;it merely puts the parties back in the same place they were prior to filing the lawsuit, i.e. with the Menzies in possession and Volkmann with notice of their adverse claim. Additionally, since neither Kothmann nor his predecessors ever filed an adverse suit to recover the property, Kothmann could not challenge the Menzies’ “peaceable possession” of the property since that time. Kothmann’s argument that the Menzies’ threat of violence was hardly “peaceable” failed because the statute requires a lawsuit, not just an exchange of threats or complaints. And in this case, the only lawsuits filed to quiet title were filed by the Menzies “and are thereby compliant with the peaceable requirement.” The court concluded that the Menzies’ possession was “peaceable” for longer than 10 years as a matter of law.

The moral of the story is that if your neighbor wants to fight over the location of the back fence, retreat to the courthouse and file a trespass to try title action ASAP rather than waiting for a more compliant neighbor. If the neighbor wants to fight after you file the lawsuit, that is different problem (and potentially a different lawsuit). This case reminds us of why civil courts exist and an independent judiciary is so important. Disputes of any kind bring out strong emotions, but those over land may provoke the strongest of all. If people stop accepting the authority of courts to resolve them, we are in very serious trouble as a society.

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