Rhodes v. Cahill

• Decision Date: 10 October 1990
• Docket Number: No. C-9064,C-9064
• Citation: 802 S.W.2d 643
• Parties: Elisha RHODES, et al., Petitioners, v. Marjorie CAHILL, Respondent
• Court: Texas Supreme Court

Page 643

802 S.W.2d 643

Elisha RHODES, et al., Petitioners, v. Marjorie CAHILL, Respondent.

No. C-9064.

Oct. 10, 1990.

W.R. Stump, Georgetown, for petitioners.

John W. Stayton, Jr., D.L. Hughes, Austin, for respondent.

OPINION ON MOTION FOR REHEARING

PHILLIPS, Chief Justice.

The Respondent's motion for rehearing is overruled. Our opinion of July 3, 1990, however, is withdrawn, and the following is substituted in its place.

This adverse possession case presents the issue of whether the adverse possession claimant, Respondent Marjorie Cahill, has proven each element of adverse possession as a matter of law. We hold that she has not. For reasons that follow, we reverse the judgment of the court of appeals and remand the cause to that court for further proceedings.

FACTS

In 1933, L.C. Cahill purchased from M.W. Rutledge a 177-acre tract of land ("the Cahill tract"). Adjoining the Cahill tract were five tracts of cedar trees, covering 15.332 acres, which were owned by Elisha Rhodes ("the cedar tracts"). At the time of Cahill's purchase, an old fence enclosed both the Cahill tract and the cedar tracts. No interior fence or other visible boundary separated the Cahill tract from the cedar tracts.

L.C. Cahill married Marjorie Cahill in 1943. They lived on the Cahill tract until his death in 1975, whereupon his interest passed by will to Marjorie. The Cahills used their property and the cedar tracts for grazing cattle and goats. They cleared cedar trees and brush from the land for this purpose, but the cedar tracts were never cultivated or improved in any other way. Mr. Cahill posted "No Trespassing" signs at various points on the fence surrounding his property, but there is no evidence that such signs were actually placed on that part of the fence enclosing the cedar tracts. It was stipulated that the Cahills paid property taxes on about 200 acres of land for the years 1956 to 1979.

Shortly after Mr. Cahill's death, Marjorie Cahill learned that a church might be built on one of the five cedar tracts. Mrs. Cahill thereupon filed an affidavit of limitation in the deed records of Williamson County, Texas. When a buyer offered to purchase both the Cahill tract and the five cedar tracts in 1980, Mrs. Cahill brought suit against various known and unknown defendants to establish title to the 15.332 acres by adverse possession.

As a result of citation by publication, many persons came into court, employed their own attorney and proved they were heirs or descendants of Elisha Rhodes. ¹ The trial court appointed an attorney ad litem to represent the remainder of the defendants cited by publication. By agreement of all parties, the trial court appointed a receiver who sold all five tracts. The proceeds of the sale were placed on deposit in the registry of the court.

Following a non-jury trial, the trial court found Mrs. Cahill to be the record owner of one cedar tract and awarded her a part of the sale proceeds, rendered judgment that she take nothing as to her adverse possession claims to the other four cedar tracts, and ordered the remainder of the proceeds distributed among the known and unknown heirs of Elisha Rhodes. The trial court ordered that the attorney ad litem's fees be paid from the shares of the proceeds awarded to the unknown defendants. In an unpublished opinion, the court of appeals, holding that Mrs. Cahill established title by adverse possession as to all five tracts as a matter of law, reversed and rendered judgment in her favor. The court also taxed the costs of appeal against all appellees, including those unknown defendants cited by publication. On rehearing the attorney ad litem representing these unknown defendants complained of the court of appeals' failure to assess his fees as costs of appeal to be paid by Mrs. Cahill as the successful plaintiff who utilized service by citation. In its opinion on motion for rehearing, also unpublished, the court of appeals held that good cause had not been shown justifying an award of costs other than to Mrs. Cahill.

ADVERSE POSSESSION

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." TEX.CIV.PRAC. & REM.CODE ANN. § 16.021 (Vernon 1986). More than a century ago, we outlined the various elements to be proved by a claimant seeking prescriptive title through adverse possession in Satterwhite v. Rosser, 61 Tex. 166 (1884):

It is well settled, that, where a party relies upon naked possession alone as the foundation for his adverse claim, it must be such an actual occupancy as the law recognizes as sufficient, if persisted in for a long enough period of time, to cut off the true owner's right of recovery.

It has been said that such 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.

Id. at 171; see also Heard v. State, 146 Tex. 139, 146, 204 S.W.2d 344, 347-48 (1947).

One seeking to establish title to land by virtue of the statute of limitations has the burden of proving every fact essential to that claim by a preponderance of the evidence. ² Ramirez v. Wood, 577 S.W.2d 278, 287 (Tex.Civ.App.--Corpus Christi 1978, no writ). In granting judgment for defendants, the trial judge found that Marjorie Cahill failed to prove each element of adverse possession. Cf. City of Beaumont v. Graham, 441 S.W.2d 829, 835 (Tex.1969). By reversing and rendering judgment for plaintiff as a matter of law, the court of appeals held that she did establish her case as to each element. We disagree.

One essential element of adverse possession under the ten-year limitation statute is that the claimant's possession must be an actual and visible appropriation of the land for ten or more consecutive years. TEX.CIV.PRAC. & REM.CODE ANN. §§ 16.021, 16.026 (Vernon 1986). Although the Cahills lived continuously on their 177-acre tract for much longer than the statutory ten-year period, their use of the cedar tracts must constitute an actual and visible appropriation of the land such that the true owner is given notice of a hostile claim. Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 287-89, 267 S.W.2d 781, 785-87 (1954). "[T]he possession must be of such character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant." Rick v. Grubbs, 147 Tex. 267, 270, 214 S.W.2d 925, 927 (1948) (emphasis in original); see also, McDonnold v. Weinacht, 465 S.W.2d 136, 141 (Tex.1971). Mrs. Cahill claims to have provided such evidence with her testimony that her husband had cleared and sold cedar trees from the land. However, she could not verify whether those trees were removed from the Cahill tract or the cedar tracts. Even if she did establish that the trees were from the contested area, neither one isolated commercial sale of cedar nor selective clearing for grazing purposes is sufficient to show adverse possession over a ten-year period as a matter of law.

The parties' stipulation that the Cahills paid property taxes on approximately 200 acres of land from 1956 through 1979 is also insufficient to demonstrate actual and visible appropriation of the land as a matter of law. A stipulation is a contract between the parties, and it is subject to judicial interpretation like any other contract. See, e.g., Fourticq v. Fireman's Fund Ins. Co., 679 S.W.2d 562, 566 (Tex.App.--Dallas 1984, no writ); Peat, Marwick, Mitchell & Co. v. Sharp, 585 S.W.2d 905, 909 (Tex.Civ.App.--Austin 1979, writ ref'd n.r.e.). The oral stipulation in this case does not expressly state that the Cahills paid taxes on the cedar tracts. Considering the context in which it was made, however, the stipulation fairly provides that the Cahills paid taxes on all the land enclosed by the fence, including the cedar tracts. Nonetheless, while payment of these taxes is competent evidence of adverse possession, it is insufficient to establish adverse possession as a matter of law under the ten year statute. See generally McBurney v. Knox, 259 S.W. 667, 674 (Tex.Civ.App.--Beaumont 1924), aff'd, 273 S.W. 819 (Tex. Comm'n App.1925, judgmt adopted); Spearman v. Rodden & Lawrence, 244 S.W. 622, 623 (Tex.Civ.App.--Texarkana 1922, no writ).

Finally, Mrs. Cahill testified that she and her husband grazed cattle and goats on the cedar tracts. This evidence is insufficient to establish title by adverse possession unless the cedar tracts were designedly enclosed for the Cahill's use. McDonnold v. Weinacht, 465 S.W.2d at 142; Orsborn v. Deep Rock Oil Corp., 153 Tex. at 287, 267 S.W.2d at 785. Although it is unknown who erected it, the evidence suggests that the fencing which bordered two sides of the cedar tracts was standing when Mr. Cahill purchased the property. The evidence indicates that Mr. Cahill occasionally repaired the fence, added net wire and additional barbed wire to it, and replaced some of the fence posts.

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