Eggemeyer v. Hughes

• Decision Date: 05 April 2021
• Docket Number: No. 08-19-00002-CV,08-19-00002-CV
• Citation: 621 S.W.3d 883
• Parties: William EGGEMEYER, Diane Eggemeyer, Bo Eggemeyer, and Sharyland Distribution & Transmission Services, LLC, Appellants, v. Charles Jackson HUGHES, Appellee.
• Court: Texas Court of Appeals

621 S.W.3d 883

William EGGEMEYER, Diane Eggemeyer, Bo Eggemeyer, and Sharyland Distribution & Transmission Services, LLC, Appellants,

v.Charles Jackson HUGHES, Appellee.

No. 08-19-00002-CV

Court of Appeals of Texas, El Paso.

April 5, 2021

ATTORNEY FOR APPELLANT: Jonathan J. Cunningham, Fidelity National Law Group, 14785 Preston Rd., Ste. 1150, Dallas, TX 75254.

ATTORNEY FOR APPELLEE: Robert P. Crumpler Jr., Davis, Gerald & Cremer, 400 W. Illinois, Suite 1400, Midland, TX 79701.

Before Rodriguez, C.J., Palafox, and Alley, JJ.

OPINION ON REHEARING

JEFF ALLEY, Justice

We withdraw our opinion of January 28, 2021 and substitute the following opinion. Appellee's Motion for Rehearing is denied.

This appeal resurrects a property boundary dispute that George Tankersley and James Talley ostensibly settled in 1914. Their dispute was resolved with an agreement setting a common boundary based on the position of a fence, rock mounds, and several mesquite trees. Fast forward a century, and the respective properties are held by new owners, Appellants William, Diane, and Bo Eggemeyer (collectively the Eggemeyers) and Appellee Charles Hughes. The Eggemeyers are convinced that the remnants of a fence, which also appears on several old surveys, defines their property boundary. Conversely, Hughes relies on several rock monuments which mark section lines as the dividing boundary between the properties. The difference implicates the ownership of approximately 90 acres. After a bench trial, the trial court agreed with Hughes and awarded him the disputed land, along with some, but not all, of the attorney's fees that he sought.

The Eggemeyers challenge both the adverse decision on the merits and the attorney's fees awarded. We find that the evidence is factually sufficient to support the trial court's judgment as to the property line and affirm that portion of the judgment. The attorney's fee question requires that we remand that issue back to the trial court.

I. BACKGROUND

All the land at issue is in Reagan County. Relevant here, Hughes is the current owner of approximately 575 acres of Section 7 and 715 acres of Section 8. Hughes's lands are to the north and east of the Eggemeyers' property. The Eggemeyers are the current owners of Sections 3 and 4. Because a picture can be worth a thousand words, the following 1939 survey map shows the position of the respective properties.

The survey also depicts the disputed property line. The lower east-west line represents the section line dividing Section 7 from 4 and Section 8 from 3. Hughes claims this line defines the boundary between his and the Eggemeyers' holdings. There is a stone mound at the intersection of the section line dividing Sections 7 and 4 and Texas Highway 137 (not depicted on this survey map). There is another stone mound at southernmost intersection of Sections 7 and 8 and the northernmost intersection of Sections 3 and 4. Conversely, the Eggemeyers contend that the upper dashed east-west line labeled as a fence on the survey, follows an old barbed-wire fence and divides the Hughes and Eggemeyer properties. There are no stone mounds along the fence line.

On the ground, the fence line and section lines are almost 150 yards apart, and over the course of the two-mile boundary, place approximately 90 acres in dispute.¹ We adopt the parties' shorthand for that area as the "Disputed Acreage."

We can surmise that there was some dispute on the dividing line of these properties over a hundred years ago. At that time, George Tankersley owned Sections 7 and James Talley owned Section 4. The Reagan County deed records contain an agreement between the two that states it is the "mutual desire of said parties to permanently fix and settel [sic] the boundary line between their respective lands so that the matter may be forever settled and so that no uncertainty may exist with reference thereto." To accomplish that end, Tankersley and Talley described the boundary line with this verbiage:

Commencing at a stake and a stone md. set under the present south fence of the G. W. Tankersley pasture as it now stands for the S.W. corner of said survey No. 7, and the N.W. corner of said Sur. No. 4, from which a mes. 6" bears Sotuh [sic] 85 E. 25 1/2 varas, a wide spreading mes. 6" bears S. 75 3/4 E. 49 varas;

Thence East with the fence line as it now stands 1900 varas to a stone md. set 8 varas East of the East bank of a branch and under said fence line, for the N.E. corner of said Sur. No. 4 and the S.E. corner of said Sur. No. 7.

The parties' briefing agrees that the abbreviation "md." stands for mound, and "mes." means a mesquite tree. A vara is a unit to measure distance.²

Tankersley's property passed through a series of deeds and is now part of the Hughes ranch. Talley sold his ranch to the Malones in 1930. Cynthia Malone, on her death, passed the ranch to Muriel Kile. Muriel gave it to Robert Kile and William Kile in 1975. The Kiles sold the ranch to Wayne and Wanda Jo Ables in 1990. In 2012, Wanda Jo Ables, widow of Wayne Ables, sold Sections 3 and 4 to the Eggemeyers, providing a deed that describes the Disputed Acreage.³

In 2013, Russ Eggemeyer met with Hughes to ask if he had any objection to the Eggemeyers placing a water well closer than the standard 660 feet setback from the property line as required by local water district rules. Russ Eggemeyer is Bo's brother, William and Diane's son, and while not an owner of any of the relevant lands, is a partner in the Eggemeyers' farming business. The conversation triggered the parties' different understanding of the actual property boundary. The Eggemeyers believed their land extended to the old fence. Hughes believed that the fence was placed off the property line, and likely done so because the terrain made placing the fence on the section line much more difficult.

Hughes and Russ Eggemeyer negotiated for a time. Hughes believed that Russ Eggemeyer agreed on behalf of the Eggemeyers that Hughes would construct at his expense a standard fence along the section line, and Hughes would also reimburse the Eggemeyers for what they paid Ables for the Disputed Acreage. The terms of their discussions were documented in emails between Russ Eggemeyer and Hughes. William and Bo Eggemeyer, however, disclaimed that they ever agreed to any of these terms once they understood the amount of acreage at issue. They had in fact sold a small portion of land within the Disputed Acreage to an oil and gas exploration company and sold an easement over the Disputed Acreage to a pipeline company.⁴

Hughes then sued the Eggemeyers, asserting several claims in his last amended petition: (1) a trespass-to-try-title claim based on Hughes having fee simple in the Disputed Acreage; (2) a suit to quiet title based on the invalidity of the Eggemeyers' deed; (3) a declaratory judgment claim seeking affirmation that the 1914 Tankersley-Talley agreement is binding, and sets the section line as the true boundary line; (4) a breach of contract claim based on violation of the 1914 Tankersley-Talley agreement; (5) a trespass claim based on the Eggemeyers' activities on the Disputed Acreage; (6) fraud and misrepresentation claims premised on the Eggemeyers' statements and conduct during the pre-suit negotiations to resolve the matter. In addition to the other relief sought, Hughes sought his attorney's fees for prosecuting the suit.

The Eggemeyers answered and in addition to their denial of Hughes' claims, they affirmatively asserted an adverse possession claim based on their and their predecessors' open and notorious use of the Disputed Acreage. They also counterclaimed under theories of quiet title, trespass, and declaratory relief (seeking a declaration that the boundary line is the fence line).

After a bench trial, the trial court entered findings of fact and conclusions of law that were favorable to Hughes as to his ownership of the Disputed Acreage. Those findings included a rejection of the Eggemeyers' adverse possession claim. However, the trial court failed to find for Hughes on his trespass, breach of contract, and fraud/misrepresentation claims. As discussed in more detail below, the trial court awarded approximately a third of the total attorney's fees that Hughes sought at trial. On appeal, the Eggemeyers raise two main issues, one challenging the findings awarding the Disputed Acreage to Hughes, and the second challenging the attorney's fee award. We take each in turn.

II. OWNERSHIP OF THE DISPUTED ACREAGE

The Eggemeyers challenge the trial court's adverse findings on the ownership of the Disputed Acreage, and the judgment that followed. Germane to that issue, the trial court made these findings of fact:

3. [Hughes] owns the Disputed Acreage through a regular and superior chain of title from the sovereign.

4. This is a dispute over the boundary line between the parties' lands. The boundary line between the parties' lands determines ownership of the Disputed Acreage.

...

6. The boundary lines between the parties' properties are marked by stone mounds or historical evidence thereof. The boundary lines between the sections are marked by stone mounds. The boundary lines between the parties' properties are the boundary lines between the sections.

7. The northern/southern boundary between the parties' properties is the established section line running east-to-west between Sections 7, G.C. & S.F. R.R. Co. and 8, E.W. Walker, on the north and Sections 4, W.G. Bartlett and 3, G.C. & S.F. RR. Co. on the south.

...

9. The existing casual wire fence on [Hughes's] property does not mark the boundary line between the parties. The fence is in disrepair in some places and is not presently in a condition that would contain animals. It is not known who built the fence, when the fence was built, or for what purpose the fence was built. The court does not find credible any claim or evidence that the fence existing today marks the boundary lines between the parties.

10. The terrain and natural conditions of the

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