Reid Estates Civic Club v. Boyer, Inc.: Lonestar Prestress Mfg., Inc. Mark L. Boyer Laureen Boyer John L Boyer And Lyda Boyer

Opinion issued December 29, 2011.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-09-00282-CV

———————————

Reid Estates Civic Club , Appellant

V.

Boyer, Inc.;

Lonestar Prestress Mfg., Inc.; Mark Boyer; Laureen Boyer; John L. Boyer; AND

Lyda Boyer ;

Appellees

On Appeal from the 55th District Court

Harris County, Texas

Trial Court Case No. 2006-38390

MEMORANDUM OPINION

Reid

Estates Civic Club (RECC) appeals from a judgment rendered in favor of John Boyer and his wife Lyda Boyer, Mark Boyer

and his wife Laureen Boyer, and two family-owned businesses, Boyer, Inc.

and Lonestar Prestress Mfg., Inc. (collectively, the Boyers) following a jury trial. We affirm the portions of the trial court’s

judgment awarding (1) John the land east of lot 5 and to the water’s edge by

adverse possession and (2) Mark the land east of lot 6 and to the water’s edge

by adverse possession. We reverse the remaining portions of the trial

court’s judgment and render judgment that (1) Mark, John, and Boyer, Inc. take

nothing on their prescriptive easement and easement by estoppel claims, (2)

Lonestar take nothing on its easement by estoppel claim, (3) Lyda and Laureen

take nothing on their adverse possession claims, and (4) RECC succeed on its

trespass claims against Boyer Inc. and Lonestar for the land east of Lots 6 and

7. We remand the case to the trial court

for further proceedings limited to (1) RECC’s trespass claims against Boyer

Inc. and Lonestar for the land east of lot 4 and (2) determination of damages

for RECC’s trespass claims.

Background

Reid Lake

Estates is an unrecorded subdivision comprised of a mixture of residential and

commercial properties located in northwest Harris County, Texas. In the late 1970’s, some of the subdivision’s

property owners created RECC as a non-profit corporation to “support and

promote community activities favorable to the continued growth and prosperity

of Reid Lake Estates subdivision.” On

September 20, 1978, Elsie Ruth Henry Patrick, Trustee, deeded RECC title to a

14.5457-acre tract of land within the subdivision that contains a large

man-made lake, commonly referred to as Reid Lake. RECC’s property is surrounded by

individually-owned lots, four of which are currently owned by members of the

Boyer family.

John and

his wife Lyda have owned or occupied lots in Reid Lake Estates since the late

1980’s. In 1988, John and Lyda began

renting lot 5, on the western side of Reid Lake, which they used both as their

residence and for the business operations of Boyer, Inc., a family-owned

business that provides public works services for City of Houston water and

sewer treatment plants and parks and recreation facilities. In 1991, John and Lyda purchased lot 5 and

their son, Mark, and daughter-in-law, Laureen, purchased lot 6.

Soon

thereafter, Mark began making inquiries into who was responsible for the maintenance

of the lake and its banks, which abutted the eastern edges of lots 5 and

6. Mark testified that as a result of

poor maintenance of the lake, the eastern edges of lots 5 and 6 were subsiding

into Reid Lake. According to Mark, the constant

erosion of the lake’s banks worsened when it rained. After he hired a service to perform a title

search, Mark learned that the lake, its banks, and the remainder of a 14-acre

parcel, had been deeded to RECC in 1978.

Mark also learned that RECC’s corporate charter had been revoked, and he

could not locate anyone associated with RECC who would agree to accept mail on

its behalf, much less agree to repair and maintain the banks of the lake. At that point, Mark and his family took it

upon themselves to repair the western bank of Reid Lake on the eastern edges of

lots 5 and 6.

Mark

testified that as part of the repair and maintenance efforts that began in

1992, he and his family removed trash from the lake and its banks along both

lots. After they acquired a development permit

from the Harris County Engineer’s office, they also installed a drainage pipe

and built up the banks of the lake with top soil that Mark had hauled in for

that purpose. Mark also testified that

they planted grass and shrubberies on the top soil, not only to prevent future

erosion, but to create a grassy, flat area along the banks of the lake that the

Boyer family could use for recreational purposes. The Boyers hired a lawn service to maintain

the property, which needed to be mowed on a weekly basis during the summer

months.

Mark and

John testified that, beginning in 1992, they used the grassy, flat area that

they had created along the lake’s edge behind lots 5 and 6 for a variety of

family and recreational functions, and considered the property their own. Among other activities, Mark’s daughter kept

and fed about 50 ducks and geese on the banks of the lake, Mark and John rode

golf carts and motorcycles along the improved bank, and the Boyer family used

the area for picnics and fishing. They did not fence the area to take any

action to prevent their neighbors from fishing from their banks. Mark testified that the Boyer family used the

property on a weekly basis.

Mark

testified that when he and his wife, Laureen, purchased lot 6 in 1992, there

was already a passable dirt road running in a north-south direction to the east

of lot 7, starting toward the southern side of lot 6 and running to lot 21. In addition to the dirt, the road was created

using bricks, tile, mortar and “whatever they had.” The roadway, which was barely passable

because it was covered by debris and a canopy of trees, intersected a Harris

County drainage easement that runs across the northern border of lot 21. According to Mark, the dirt roadway, which

was built by previous residents, had been used by a dump truck company that had

once occupied lot 6, and by other residents to connect to the bank of land

behind lot 21. Mark testified that he

had “occasionally” driven golf carts on the roadway before 2002. When he reached the end of the roadway, he

could not enter lot 21 due to a large amount of debris located at the back of

that property, so he would either turn around or continue down the Harris

County easement that ran along the edge of lot 21.

Mark and

his mother, Lyda, purchased lot 4 in April 2002 and lot 21 five months

later. Mark testified that after he

purchased lot 21, they extended the roadway running behind lots 6 and 7 and at

the edge of 21 into lot 21 itself and improved the surface of the dirt roadway

with crushed concrete and milled asphalt installed by a bulldozer, compacter

and maintainer. The two family-owned

businesses, Boyer, Inc. and Lonestar, have made extensive commercial use of the

roadway since 2002 to connect with their business on lot 21. [1]

In 2006, officers of the newly-reactivated RECC wrote a letter to

Lonestar and Boyer, Inc. claiming that the companies were trespassing on RECC’s

property and demanded that they vacate the premises. Mark testified that until this time, no one from RECC had told him

that they could not use the property east of lots 5 and 6 or the roadway behind

lot 7. Lonestar, Boyer, Inc., and members of the Boyer family subsequently filed

suit against RECC seeking a declaratory judgment regarding their rights to an

easement across RECC’s property and attorneys’ fees, and they asserted claims

for trespass, cost of maintenance, and foreclosure of a mechanic’s lien. RECC counterclaimed for trespass and sought a

declaratory judgment, attorneys’ fees, and injunctive relief.

The jury

reached a verdict in favor of the Boyers, Lonestar, and Boyer, Inc. RECC filed a motion for judgment

notwithstanding the verdict which was granted in part and denied in part. The trial court rendered a final judgment and

awarded (1) John and Lyda title to RECC’s property east of lot 5 and to the

water’s edge by adverse possession, (2) Mark and Laureen title to RECC’s

property east of lot 6 and to the water’s edge by adverse possession, and (3)

Boyer, Inc., Lonestar, Mark, and John a “roadway easement” over RECC’s property

east of lots 6 and 7. The trial court rendered

judgment that RECC take nothing on its counterclaims and did not award attorneys’

fees to either side. This appeal followed.

issues on

appeal

The Boyers concede that the following portions of the

judgment should be reversed: (1) the portion of the judgment awarding Lyda and

Laureen title by adverse possession to the land east of lots 5 and 6 to the

water’s edge and (2) the portion of the judgment awarding John, Boyer, Inc. and

Lonestar a “roadway easement” appurtenant over RECC’s property east of lots 6

and 7. [2] Accordingly, we reverse those portions of the

judgment and render judgment that (1) Lyda and Laureen take nothing on their

adverse possession claims, (2) John and Boyer, Inc., take nothing on their

prescriptive easement and easement by estoppel claims, and (3) Lonestar take

nothing on its easement by estoppel claim.

In light of these concessions, it is unnecessary for us to

address each of the issues raised by RECC.

Therefore, while retaining their numbers, we have re-characterized

RECC’s issues on appeal to narrow the focus on the remaining issues:

(1)

Did the trial court err in overruling RECC’s motion for JNOV with respect

to the establishment of a prescriptive roadway easement in favor of Mark over RECC’s property east of lots 6 and 7 and

connecting to lot 21 ;

(2)

Did the trial court err in submitting Mark’s easement by estoppel claim

to the jury and in overruling RECC’s

motion for JNOV with respect to the establishment of a roadway easement by

estoppel in favor of Mark over RECC’s

property east of lots 6 and 7 and connecting to lot 21 ;

(3)

Did the trial court err in overruling RECC’s motion for JNOV with respect

to John and Mark’s adverse possession claims;

(4)

Did the trial court err in overruling RECC’s motion for JNOV with respect

to RECC’s counterclaims for trespass against Lonestar and Boyer, Inc.;

(5)

Is the judgment’s description of the property awarded to Mark through an

easement appurtenant unenforceable because it is (a) ambiguous, (b) unsupported

by the pleadings, and (c) “overreaching” by depriving an unrepresented third

party of its property;

(6)

Did the trial court err in asking the jury to determine whether Mark established an easement without also asking

the jury to determine the particular use or scope of that easement; and

(7)

Did the trial court err in submitting a good-faith instruction to the

jury as part of the special issue on trespass?

I.

Easements

RECC’s first, second, fifth, and

sixth issues pertain to the trial court’s grant of a roadway easement

appurtenant in favor of Mark over RECC’s property east of lots 6 and 7 and connecting to lot 21 . Mark

was awarded an easement by prescription and easement by estoppel.

A.

Prescriptive Easement

In its first issue on appeal, RECC

contends that the trial court erred in overruling its motion for JNOV because there was no evidence to support the

jury’s finding of a prescriptive easement in favor of Mark. Specifically, RECC contends that Mark’s usage

of the property was neither continuous nor of such a nature as to put RECC on

notice that Mark was asserting a claim to the property.

We review the grant or denial

of a motion for JNOV under a legal-sufficiency standard,

crediting evidence favoring the jury verdict if reasonable jurors could, and

disregarding contrary evidence unless reasonable jurors could not. Tanner v. Nationwide Mut. Fire Ins. Co. , 289 S.W.3d 828, 830 (Tex. 2009)

(citing City of Keller v. Wilson ,

168 S.W.3d 802, 823 (Tex. 2005)); Whitney Nat’l Bank v. Baker , 122 S.W.3d 204, 207 (Tex.

App.—Houston [1st Dist.] 2003, no pet.).

In doing so, we recognize that the fact-finder is the sole judge of the

witnesses’ credibility and the weight to be given their testimony, and we

cannot substitute our judgment for that of the fact-finder

so long as the evidence falls within the zone of reasonable disagreement. City of Keller , 168 S.W.3d at 821–28.

RECC was entitled to judgment notwithstanding the verdict if

the record shows: (1) a complete lack of evidence of a vital fact; (2) the

trial court is barred by the rules of law or evidence from giving weight to the

only evidence offered to prove a vital fact; (3) the evidence offered to prove

a vital fact is not more than a mere scintilla; or (4) the evidence establishes

conclusively the opposite of a vital fact.

City of Keller ,

168 S.W.3d at 810, 823 ; Requena v. Otis Elevator Co. , 305 S.W.3d 156, 162 (Tex.

App.—Houston [1st Dist.] 2009, no pet.).

More than a scintilla of evidence exists if the evidence “rises to a

level that would enable reasonable and fair-minded people to differ in their

conclusions.” Merrell Dow Pharm., Inc. v. Havner , 953 S.W.2d 706, 711 (Tex.

1997). However, “[w]hen the evidence

offered to prove a vital fact is so weak as to do no more than create a mere

surmise or suspicion of its existence, the evidence is no more than a scintilla

and, in legal effect, is no evidence.” Kindred v. Con/Chem., Inc. , 650 S.W.2d

61, 63 (Tex. 1983). Anything more than a scintilla of evidence is legally

sufficient to support the finding. Cont’l

Coffee Prods. Co. v. Cazarez ,

937 S.W.2d 444, 450 (Tex. 1996).

A prescriptive easement is “a non-possessory interest that

authorizes its holder to use property for a particular purpose.” See

Koelsch v. Indus. Gas Supply Corp. , 132 S.W.3d 494, 497 (Tex. App.—Houston

[1st Dist.] 2004, pet. denied) (citing Marcus

Cable Assocs. v. Krohn , 90 S.W.3d 697, 700 (Tex. 2002)). Burdening another’s property with a

prescriptive easement is not favored in the law. Toal v.

Smith , 54 S.W.3d 431, 435 (Tex. App.—Waco 2001, pet. denied). Unlike other types of easements, an easement

by prescription rests on the claimant’s adverse actions taken under color of

right. See Scott v. Cannon , 959 S.W.2d 712, 721 (Tex. App.—Austin 1998,

pet. denied). In order to acquire a

prescriptive easement, the claimant must prove that the property’s use has been

open and notorious, continuous, exclusive, hostile, and adverse for the

requisite time period of ten years. See Mack

v. Landry , 22 S.W.3d

524, 531 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (citing Brooks v. Jones , 578 S.W.2d 669, 673

(Tex. 1979)); see also State v.

Beeson , 232 S.W.3d 265 , 274–75 (Tex. App.—Eastland 2007, pet. dism’d).

The hostile and adverse

character of the use necessary to establish an easement

by prescription is the same as that necessary to establish title by adverse possession. Mack , 22 S.W.3d at 531 ( citing Othen

v. Rosier , 148 Tex. 485 ,

226 S.W.2d 622, 626 (1950)). As such,

the claimant must demonstrate that the property’s use was of such a nature that

it reasonably notified the true owner that a hostile claim to the land was

being asserted. See Masonic Bldg. Ass’n v. McWhorter , 177 S.W.3d 465, 472 (Tex. App.—Houston [1st Dist.] 2005, no

pet.) (“The test for hostility [in an adverse possession proceeding] is whether

the acts performed by the claimant on the land and the use made of the land

were of such a nature and character as to reasonably notify the true owner of

the land that a hostile claim was being asserted to the property.”); see also Scott v. Cannon , 959 S.W.2d 712, 722 (Tex. App.—Austin 1998, pet.

denied) (requiring owner of servient

estate have actual or constructive notice of adverse and hostile claim against

property in prescriptive easement case).

The jury charge here instructed the jury both on the limited purpose of

easements and on each of the elements of a prescriptive easement:

An easement is a right to use

land for a limited purpose. An easement

does not provide its holder with title to property or a right to possess

property, only a right of use.

. . .

A prescriptive easement is shown

when a party’s use of the land was (1) open and notorious, (2) hostile and adverse

to the [owner’s] claim of right, (3) exclusive of the owner’s use, (4)

uninterrupted, and (5) continuous for a ten year period.

Open and notorious means such

open and visible act or acts that knowledge on the part of the landowner will

be presumed.

Hostile and adverse means acts of

such nature as to notify the true owner that the claimant is asserting a claim

to the land as his own.

Because

Mark did not object to the charge, we determine the sufficiency of the evidence

based upon that charge. See Romero v. KPH Consol., Inc. , 166 S.W.3d 212, 221 (Tex. 2005).

The evidence of Mark’s usage of the roadway is insufficient

to establish his entitlement to a prescriptive easement. Mark testified that he extended the roadway

and improved the surface of the roadway by adding crushed concrete and milled

asphalt after he and his mother, Lyda, purchased lot 21 in 2002. [3] Although the roadway improvements were

arguably of such a nature that they should have put RECC on notice that Mark

was asserting a claim of right with respect to the roadway (an issue which we

do not decide), the improvements were not made until after Mark purchased lot

21 in 2002—far short of the ten-year period required to establish a

prescriptive easement. The only evidence

of Mark’s usage of the roadway before 2002 is his testimony that he

“occasionally” drove a golf cart down the tree-covered roadway. This evidence of Mark’s sporadic use of the

roadway before 2002 is so weak that it amounts to no more than a

scintilla. Mark also testified that they

mowed the “pathway” area every week during the summer. It appears from the

record that this testimony does not concern the roadway from lot 6 to lot 21,

but the pathway behind lots 5 and 6.

Moreover, Mark did not state when they began mowing or who did the

mowing—him, his brother or one of their companies. He unequivocally testified that they did not

use it for business purposes until after they purchased lot 21. [4]

In conclusion, there

is no evidence that Mark used the easement in an open and notorious,

continuous, exclusive, hostile, and adverse manner for ten years before the

jury verdict, and the trial court erred in overruling RECC’s motion for JNOV with respect to the establishment of a

prescriptive easement in favor of Mark. See Ford

Motor Co. v. Ridgway , 135

S.W.3d 598, 601 (Tex. 2004) (stating that scintilla of evidence is “no

evidence” at all).

We sustain RECC’s first issue, reverse

the trial court’s judgment in part and render judgment that Mark take nothing

on his prescriptive easement claim.

B.

Easement by Estoppel

In its

second issue on appeal, RECC argues that the trial court erred in submitting

Mark’s easement by estoppel claim to the jury because the claim was not

raised by the pleadings. We agree. [5]

Jury questions must be supported by the pleadings and the

pleadings must contain a short

statement of the cause of action sufficient to give fair notice of the claims

involved . See Tex. R. Civ. P .

278 (“The court shall submit the questions, instructions, and definitions in

the form provided by Rule 277, which are raised by the written pleadings and

the evidence.”); Tex. R. Civ. P. 47(a)

(pleadings “shall contain . . . a short statement of the cause of action

sufficient to give fair notice of the claim involved . . .”). In determining whether a pleading is

adequate, we examine whether an opposing attorney of reasonable competence, on

review of the pleadings, can ascertain the nature and the basic issues of the

controversy. Bowen v. Robinson , 227 S.W.3d 86, 91 (Tex. App.—Houston [1st Dist.]

2006, pet. denied). Furthermore, because

RECC did not specially except to Mark’s petition, we must liberally construe

the pleadings in his favor. See Whaley v. Cent. Church of Christ

of Pearland , 2004 WL 1405701 at *3 (Tex. App.—Houston [1st Dist.] 2004, no

pet.) (citing Home Sav. of Am. FSB

v. Harris Cnty. Water Control & Improvement Dist. No. 70 , 928 S.W.2d

217, 218 (Tex. App.—Houston [14th Dist.] 1996, no writ)). “ The ‘fair notice’ requirement of Texas pleading relieves

the pleader of the burden of pleading evidentiary matters with meticulous

particularity.” Bowen , 227 S.W.3d at 91 . Even if we conclude that the trial

court erred in submitting the claim to the jury, we may not reverse unless the

error probably caused the rendition of an improper judgment. Tex.

R. App. P . 44.1(a)(1); Crown Life

Ins. Co. v. Casteel , 22 S.W.3d 378, 388 (Tex. 2000).

Mark contends that, when liberally construed, his pleadings

were sufficient to put RECC on notice that he was claiming an easement by

estoppel with respect to the “roadway” behind lots 6 and 7 because he alleged

that (1) RECC had failed to maintain Reid Lake and its banks, (2) RECC had

represented to him that RECC would not maintain Reid Lake and its banks in the

future, and (3) he was entitled to an easement to use the roadway connecting

lots 6 and 21. Mark also contends that

it would be reasonable to infer that he was raising an easement by estoppel

claim because he asserted “estoppel” as an affirmative defense to RECC’ s trespass claim. [6]

The elements of easement by estoppel are (1) a representation

was communicated, either by word or by action, to the promisee, (2) the

promisee believed the communication, and (3) the promisee relied on the

communication to his detriment. Stallman v. Newman , 9 S.W.3d 243, 246

(Tex. App.—Houston [14th Dist.] 1999, pet. denied). Mark claimed in his petition that RECC’s

failure to maintain the banks of Reid Lake was damaging his adjoining property

and that he and his family had spent their own funds to improve and maintain the

banks of the lake behind their property.

The easement granted to Mark in the judgment is not an easement to

access the banks of the lake behind his property; it is a roadway that runs

north and south behind lots 6 and 7 and connects lots 6 and 21. The claims alleged by Mark only pertain to

the banks of Reid Lake and do not identify any representations by RECC

regarding the use of the roadway or any action taken in reliance on any such representation. [7] Even if we were to liberally read the

petition as putting RECC on notice that Mark was raising an easement by

estoppel claim with respect to his access to the banks of the lake, these

allegations are insufficient to put RECC on notice that Mark was contending

that he had an easement by estoppel with respect to the roadway on RECC’s

property that connects lots 6 and 21.

Mark contends that his petition raised all possible easement

claims by asserting that he could not be a trespasser because he “now has an easement

across defendant’s property.” But this statement must be read in context. The paragraph specifically cites the elements

of a prescriptive easement and that their use of the property had exceeded ten

years. Thus, a fair reading of the petition

was that they were claiming an easement by prescription, not by estoppel. Mark’s

petition was insufficient to give RECC fair notice that he was asserting

easement by estoppel as a theory of recovery with respect to the roadway and

therefore, the trial court erred in submitting the easement by estoppel claim

to the jury.

Having determined that the trial court erred in submitting

the claim to the jury, we must now consider whether the error probably caused

the rendition of an improper judgment.

Here, the jury found that Mark had both an easement by estoppel and a

prescriptive easement. Because we

determined that the trial court erred in overruling RECC’s motion for JNOV with

respect to Mark’s prescriptive easement claim, we conclude that the trial

court’s erroneous submission of his easement by estoppel claim probably caused

the rendition of an improper judgment.

Accordingly, we sustain RECC’s second issue, reverse the trial court’s

judgment in part, and render judgment that Mark take nothing on his easement by

estoppel claim. [8]

C.

Remaining Issues Pertaining to

Easements

RECC raises two other issues pertaining to the award of an

easement appurtenant in favor of Mark.

In its fifth issue, RECC argues that the judgment’s award of an

appurtenant easement to Mark is defective because (a) it does not adequately

describe the easement awarded, (b) the portions of the judgment that awarded

the easements are not supported by the pleadings, and (c) it granted Mark an

easement over property that is owned by someone who is not a party to the

present suit, thus depriving the owner of his due process rights. [9]

In its sixth issue, RECC contends that the trial court erred in submitting question one

to the jury because although the question asked the jury to determine whether Mark

and Laureen had an easement by prescription or by estoppel, it did not ask the

jury to find any particular limited use of that easement (i.e.,

commercial use, recreational use, or ingress and egress). Having sustained RECC’s challenge to the

trial court’s award of an easement to Mark and Laureen, we need not address

these issues.

II.

Adverse

Possession

In its third issue on appeal, RECC contends that the trial

court erred in overruling its motion for JNOV because there was no evidence

supporting the jury’s finding that Mark or John adversely possessed the tracts

of land located east of lots 5 and 6 to the water’s edge by adverse possession.

Adverse possession is “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(1) (West 2002). An adverse possession claim requires proof of actual possession

of the disputed real property that is open and notorious, peaceable, under a

claim of right, adverse or hostile

to the claim of the owner, and consistent and continuous for the duration of

the statutory period. See Dyer v. Cotton , 333 S.W.3d 703, 710

(Tex. App.—Houston [1 Dist.] 2010, no pet.); see also Rhodes v. Cahill , 802 S.W.2d 643, 645 (Tex. 1990). The

appropriate statutory time period is ten years. See Tex. Civ. Prac. & Rem. Code Ann. § 16.026 (West 2002).

To establish adverse possession, the claimant must

demonstrate that he actually and visibly appropriated the land for ten or more

consecutive years, such that his use of the land gives the true owner notice of

the hostile claim. Rhodes , 802 S.W.2d at 645 ; see

also McWhorter , 177 S.W.3d at 472 .

The possession of the land must “indicate unmistakably an assertion of a

claim of exclusive ownership in the occupant.”

Rhodes , 802 S.W.2d at

645 . If there is no verbal assertion of

claim to the land brought to the landowner’s knowledge, the adverse possession

must be manifested by such open or visible act or acts that the landowner’s

knowledge will be presumed. Orsborn v. Deep Rock Oil Corp. , 267

S.W.2d 781, 787 (Tex. 1954).

A.

Adverse Possession and Dissolved

Corporations

The jury found that both Mark and John acquired property

owned by RECC through adverse possession, even though RECC was dissolved during

the majority of the ten-year limitations period. The unique factual scenario presented by this

case raises the question: Can a party

act in a manner that is open and obvious and acquire property by adverse

possession when the true owner is a dissolved corporation? The answer is yes. See Fed. Crude Oil Co. v. Yount-Lee Oil Co ., 73 S.W.2d 969 (Tex.

Civ. App.—Beaumont 1934, no writ) (holding land may be adversely possessed

against dissolved corporation); see also Hendron v. Yount-Lee Oil Co. , 119 S.W.2d 171, 174 (Tex. Civ.

App.—Texarkana 1938, writ ref’d) (quoting with approval rule from Federal Crude Oil that disability to sue

caused by party’s own actions and which may be removed at any time “will not

toll the running of the statues of limitations”).

Federal Crude Oil not only adopts this rule but explains its rationale and has been approved in

Hendron , a writ refused opinion which

has the precedential value of a Texas Supreme Court opinion. See Fed.

Crude Oil Co. , 73 S.W.2d at 974 . In Federal

Crude Oil , a corporation failed to pay its franchise taxes, after which the

secretary of state declared that it had forfeited its right to do business in

Texas. Id. at 970 . Nearly 23 years

later, the corporation paid its delinquent franchise taxes to bring it to good

standing with the secretary of state. Id .

In a subsequent lawsuit Yount-Lee obtained title to a tract of land owned

by the corporation by adverse possession.

Id . at 970. On appeal, the corporation argued that

Yount-Lee could not obtain title by adverse possession because the corporation

could not sue and be sued because of its failure to pay its franchise tax,

effectively tolling the ten-year adverse possession period. Id.

at 974 .

The court disagreed, holding the corporation’s land could be

adversely possessed. Id. “We think it a sound proposition to

say that a disability to sue, which is due wholly to the default of the person

claiming its benefits and which at all times he had the power to remove, will

not toll the running of the statutes of limitation. At any time during that period of time

appellant had the right to revive its charter rights and resume all its

corporate powers.” Id.

In reaching its holding, the court noted that “[i]t is not

the policy of the law to permit a party against whom the statute runs to defeat

its operation by neglecting to do an act which devolves upon him in order to

perfect his remedy against another. If

this were so, a party would have it in his own power to defeat the purpose of

the statute in all cases of this character.”

Id. (quoting 17 R. C. L. Limitation

of Actions § 121, at 756 (1917)).

The court also noted that the statute of limitations specifically

detailed the legal disabilities that would toll the ten-year adverse possession

period. Id. The court noted that

there was no explicit exception for dissolved corporations in the statute, and

the court refused to read such a new exception into the statute. Id. The court also relied on the general principle

that no one can claim exception from adverse possession statutes except those

excluded expressly or by necessary implication.

Id.

Like the corporate entity in that case,

RECC was dissolved by the secretary of state for its own failure to comply with

the law, with the option to be reinstated once the organization was brought

into compliance. As a matter of policy,

RECC should not be allowed to toll the ten-year statutory adverse possession

period merely because of its own voluntary failure to file paperwork;

otherwise, every corporation could simply stop filing mandatory paperwork to

prevent any close-to-maturity adverse possession claims against them and

“defeat the purpose of the statute in all cases of this character.” Id.

at 974 (quoting 17 R. C. L. Limitation of Actions § 121, at 756 (1917)). Additionally, like in Federal Crude Oil , the statute in question provides no explicit

exemption for dissolved corporations.

Under our current statute, the only persons exempt from adverse

possession are those with a legal disability (i.e., persons younger than 18

years of age, persons of unsound mind, and persons serving in the United States

Armed Forces during a time of war). See Tex.

Civ. Prac. & Rem. Code Ann. § 16.022 (West 2002). And unlike age, insanity, or war, corporate

dissolution due to failure to file mandatory paperwork is a legal disability

that RECC voluntarily imposed upon itself.

We hold that land may be adversely possessed against a

dissolved corporation when that corporation was wholly at fault for its own

dissolution and could have been reinstated during the period during which

adverse possession was claimed.

B.

Mark and John

RECC contends that there was no evidence that Mark or John

intended to claim the property as their own or that they exclusively and

continuously occupied the property in question for a ten-year period. According to RECC, Mark and John’s

non-exclusive recreational use of the property was insufficient to put RECC on

notice that they were claiming the property as their own. RECC further contends that the evidence

conclusively establishes that Mark and John acknowledged RECC as the true owner

of the property, thus, defeating their adverse possession claims as a matter of

law.

Mark and John respond that they adversely possessed the land

in question because they restored and maintained the property and they used the

land as it was intended—for recreational purposes. According to Mark and John, all of this was

done in an open and visible manner.

1.

Hostile

A use of property is considered hostile for purposes of adverse

possession when the use was of such a nature and character as to reasonably

notify the true owner of the land that a hostile claim was being asserted to

the property. See McWhorter ,

177 S.W.3d at 472 . The character of use

required to establish adverse possession varies with the nature of the land and

with its adaptability to a particular use.

Kazmir v. Benavides , 288

S.W.3d 557, 561 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Vaughan v. Anderson , 495 S.W.2d 327, 332

(Tex. Civ. App.—Texarkana 1973, writ ref’d n.r.e.). The adverse possession claimant need only use

the land for some purpose to which it is adaptable, and in the same manner an

ordinary owner would use the property. Kazmir , 288 S.W.3d at 561 ; Fuentes v. Garcia , 696 S.W.2d 482, 485 (Tex.

App.—San Antonio 1985, writ ref’d n.r.e.).

The Boyers presented evidence that they began making

substantial and costly repairs to the banks of the lake behind lots 5 and 6 in

1992. Mark testified that as part of the

repair and maintenance efforts that began in 1992, he and his family cleaned

debris people had dumped in the area, installed a drainage pipe, and built up

the eroded banks of the lake with several loads of top soil that Mark had

hauled in for that purpose. All of this

work was done with a “field permit” obtained from the Harris County Engineer

after reviewing the drainage plan. Mark also testified that they planted grass

and shrubberies on the top soil, not only to prevent future erosion, but to

create a grassy, flat area along the banks of the lake that the Boyer family

could use for recreational purposes.

According to Mark, this area requires regular mowing and maintenance,

sometimes as often as once-a-week during the summer months. In all, Mark

testified that the Boyers have incurred approximately $150,000 in expenses as a

result of their repair and ongoing maintenance efforts. Although there is also evidence in the record

that other residents made some arguably similar improvements to the banks of

the lake behind their property over the years, the testimony establishes that

the Boyers’ improvements and on-going maintenance efforts were far more

extensive.

There was evidence that the Boyers not only dramatically

improved the property behind lots 5 and 6, but used it regularly for recreational

purposes. RECC acknowledges that recreational use is the

only purpose to which the property is adaptable (and which presumably is how an

ordinary user would use the property). [10] Here, the uncontroverted testimony

establishes that since the Boyers improved the lakeshore in 1992, members of

the Boyer family have used the land behind lots 5 and 6 for a variety of family

and recreational functions, and considered the property their own. Among other things, Mark’s daughter kept and

fed approximately 50 ducks on the banks of the lake, Mark and John regularly

rode golf carts and motorcycles through that area, and the family used the

banks for picnics and fishing and occasionally allowed neighbors to fish from

their banks. According to Mark, the

Boyer family uses the property on a weekly basis. He also testified that the areas that he and

John are claiming by adverse possession are out in the open and visible to

other neighbors with a property abutting the lake.

As set forth above, a party seeking to adversely possess land

only needs to use or enjoy the land in a manner to which the land is adaptable

and as an ordinary user would use the property.

Here Mark and John used the property as an ordinary user would—by making

significant, costly improvements to the property (regardless of whether they

made the improvements themselves, or had a family member, or family business do

it), by using the property recreationally, and by allowing friends and family

to use the property for recreation.

Thus, there was some evidence from which the jury was entitled to find

that Mark and John’s use of the property, although similar to their neighbors

in some respects, was of such a nature as to reasonably notify RECC that a

hostile claim was being asserted to the property.

2.

Intent

RECC argues that the Boyers did not “intend” to claim the

land as their own, and therefore cannot prevail on their adverse possession

claim. Orsborn , 267 S.W.2d at 787 (“No matter how exclusive and hostile to

the true owner the possession may be in appearance, it cannot be adverse unless

accompanied by the intent on the part of the occupant to make it so.”) It is true that a party seeking to claim land

by adverse possession must demonstrate an intent to claim the land; however, the

requisite “intent” is not to take title to another’s property but an intent to claim

the land, as demonstrated by “external circumstances.” Id .

“[A]dverse possession is not dependent

on the possessor’s intent to assert title hostile to a known true owner, but

rather on the intent to claim the land. . . . [H]ostile use does not require an

intention to dispossess the rightful owner, or even know that there is one.” BP

Am. Prod. Co. v. Marshall , 342 S.W.3d 59, 72 (Tex. 2011) (internal

quotation marks and citations omitted).

Therefore, our focus is not on the Boyers internal thought process, but

on what they did or did not do to

manifest their intent to claim the land.

RECC argues that Mark and John’s failure to pay taxes on the land in

question and their request for reimbursement in 2006 from RECC for the

improvements they made to the land are evidence that Mark and John were not

claiming the land as their own. Neither

of these factors, however, is dispositive.

At most, they merely constitute some evidence for the jury to

consider. See Rhodes , 802 S.W.2d at

645—46 (payment of taxes did not “ demonstrate

actual and

visible appropriation of the land as a matter of law ”); Orsborn , 267 S.W.2d at 787 (noting

absence of payment of taxes as part of the evidence demonstrating a lack of

intent to claim the property). As previously discussed, there was some evidence

adduced at trial from which the jury was entitled to find that Mark and John’s

use of the property was of such a nature as to reasonably notify RECC that a

hostile claim was being asserted to the property. This same evidence is also sufficient for a

reasonable jury to find that they had the requisite intent to claim the land.

3.

Continuous

Mark and John presented evidence that they and their families

have been occupying and using the property behind lots 5 and 6 since the repair

and maintenance efforts began in 1992.

The trial testimony also establishes that the Boyer family has been

using the property in question on a weekly basis and that no one tried to stop

them from using the property or informed them that they were trespassing until

RECC’s March 2006 letter. As such, there

was some evidence from which the jury was entitled to find that Mark and John’s

use of the property was continuous.

4.

Exclusive

RECC contends that the Boyer’s use was not exclusive because they

allowed their neighbors to use the property behind lots 5 and 6 for

recreational purposes. But that limited use, with their permission, does not

render their use of the property non-exclusive.

The established rule in Texas is that an adverse possession claimant’s

use need not be exclusive to the entire world, but only to the title

holders. Smith v. Jones , 132 S.W. 469, 471 (Tex. 1910) (“We . . . do not

agree that it is always true that a possession, in order to be sufficient, must

be adverse to the whole world.”); see

also Ellett v. Mitcham , 145

S.W.2d 917 , 918–19 (Tex. Civ. App.—Eastland 1940, writ dism’d, judgm’t cor.); but see Werchan v. Lakewood Estates

Ass’n , 2009 WL 2567937 , at *5 (Tex. App.—Austin Aug. 21, 2009, no pet.)

(“The exclusivity element requires that the claimant’s use be exclusive of all

other persons, especially the property owner.”)

There is no evidence in the record that any members of RECC—the title holder—ever

entered the land at issue between 1992 and 2006. As such, there was some evidence from which

the jury was entitled to find that Mark and John’s use of the property was

exclusive to the title holder.

Furthermore, “allowing” use of the property during that same time period

suggests that the Boyers believed they could have prevented such use if they so

desired.

5.

Acknowledgement of RECC as Title Holder

Quoting from Bruni v.

Vidaurri , 140 Tex. 138, 150 , 166

S.W.2d 81, 88 (1942), for the proposition that “a possessor’s acknowledgment of

title in another” within the statutory ten-year period “will defeat” an adverse

possession claim, RECC contends that Mark and John are barred as a matter of

law from claiming the land in question by adverse possession because they

acknowledged RECC as the true owner of the property in 1992 and 2000 and in

their original petition which was filed in 2006.

Whether an adverse claimant’s conduct constitutes an

acknowledgment of title in another, however, is normally a question of

fact. Bruni , 166 S.W.2d at 88 ; Cuniff v.

Bernard Corp. , 94 S.W.2d

577 (Tex. Civ. App.—Beaumont 1936, writ ref’d).

The 1992 fax sent by Mark merely inquires as to who owns the lake and

the land surrounding the lake without acknowledging who owns it. RECC also argues that the 2000 letter that

Mark sent to his attorney is an “obvious” attempt to purchase the land and

therefore an acknowledgment of title in RECC.

In the letter, Mark stated in relevant part, “The General Warranty deed

I have shows the Reid Estates Civic Club as the titleholder. . . Due to the

increased activity by the local taxing districts to return property to the tax

rolls, we would ask that you verify ownership of the [tract] and the possible

ways we may obtain title to this tract of land.” When questioned about this letter at trial,

Mark explained that he had possession of the land, which he considered to be

his property, and he sent the letter because he wanted to obtain a recorded

title to the property. Thus, the jury

could reasonably infer from Mark’s testimony that the letter was not an attempt

to purchase the property as RECC argues, because Mark believed that he was

already the rightful owner—albeit without a recorded deed evidencing

title. RECC also argues that Mark and

John’s pleadings also acknowledge RECC’s ownership of the property. The pleadings, however, which were filed in

2006—more than ten years after the Boyers took possession of the property—would

only be at most some evidence for the jury to consider. See

Bruni , 166 S.W.2d at 88 (stating that

acknowledgment of title after statutory period elapsed is not fatal to claim

but is only some evidence for the jury to consider). See also

Kinder Morgan N. Tex. Pipeline, L.P.

v. Justiss , 202 S.W.3d 427, 439 (Tex. App.—Texarkana 2006, no pet.)

(stating that “whether an adverse claimant’s conduct constitutes an

acknowledgment of title in another is a question of fact” and that “such

admissions constitute evidence contrary to a claim of adverse possession, but

are not conclusive, and must be weighed along with all other evidence of

adverse possession”).

Because these factors are merely some evidence for the jury

to consider with respect to Mark and John’s adverse possession claims, the

evidence does not conclusively disprove Mark or John’s adverse possession claim.

6.

Conclusion

There is some evidence that Mark and John had actual

possession of the property behind lot 6, that John had actual possession of the

property behind lot 5, and that their possession was open and notorious,

peaceable, under a claim of right, adverse or hostile to the claim of the

owner, and continuous and consistent for the ten-year statutory period. The evidence does not conclusively establish

otherwise. Although a reasonable jury

could disagree as to whether their use of the land met all of the required

criteria, we may not overturn the jury’s verdict so long as the evidence falls

within a zone of reasonable disagreement.

City of Keller , 168

S.W.3d at 822 . Because the evidence

falls within a zone of reasonable disagreement, we conclude that the trial

court did not err in overruling RECC’s motion for JNOV with respect to Mark and

John’s adverse possession claims.

We overrule RECC’s third issue.

III.

Sufficiency of

Judgment

In its fifth issue on appeal, RECC

contends that the judgment is defective because it does not adequately describe

the real property behind lots 5 and 6 that was awarded by adverse possession to

either Mark or John, and

because Mark and John’s pleadings do not support the judgment. [11]

A.

Description of the Property in

the Judgment

RECC argues that the judgment’s description is insufficient because

it does not specify the northern and southern boundaries of the property

awarded to Mark and John by adverse possession, and the maps attached to the judgment

do not identify the lots by number.

The sufficiency of the legal description in any

instrument transferring a property interest is a question of law and subject to

a de novo review. Dixon v. Amoco Prod. Co. , 150 S.W.3d 191, 194 (Tex. App.—Tyler 2004,

pet. denied). In an adverse possession suit, the test for

determining the sufficiency of a description of land is whether the tract can

be identified with reasonable certainty.

Zobel v. Slim , 576 S.W.2d 362,

369 (Tex. 1978); see also Rinn v.

Wennenweser , No. 01-07-00763-CV, 2008 WL 2611921 , at *2 (Tex. App.—Houston

[1st Dist.] July 3, 2008, no pet.) (mem. op.).

The judgment in an adverse possession case must identify the land with “reasonable

certainty” such that an officer charged with the duty of executing a writ of

possession could locate the property without exercising judicial

functions. Zobel , 576 S.W.2d at 369 ; see

also Gilbreath v. Yarbrough , 472

S.W.2d 185, 189 (Tex. App.—Tyler 1971, writ ref’d n.r.e.) (stating that test

for sufficiency of description is whether judgment so identifies land that

officer, charged with duty of executing writ of possession, can go on ground

and identify it with assistance of competent surveyor). The description of property in a judgment is

sufficient if “a surveyor could go upon the land and mark out the land

designated.” Graff v. Berry , No. 06-07-00058-CV, 2008 WL 704310 , at *5 (Tex.

App.—Texarkana 2008, pet. denied) (mem. op.) (quoting Wooten v. State , 177 S.W.2d 56, 57 (Tex. 1944)). A judgment may refer to other writings in

identifying the land in question. See Rinn , 2008 WL 2611921 at *2; but see Higginbotham v. Davis , 35 S.W.3d 194, 198 (Tex. App.—Waco 2000,

pet. denied) (stating, without citation to any authority, that judgment in

trespass to try title actions “should contain a complete legal description of

the property to which title has been established, so that reference to

extrinsic documents is unnecessary”). In

reviewing a judgment for sufficiency of property description, Texas law does

not require us to scrutinize the conveyance with a view to defeat it; instead,

“every reasonable intendment will be made in their favor, so as to secure, if

it can be done consistent with legal rules, the object they were intended to

accomplish.” AIC Mgmt. v. Crews , 246 S.W.3d 640, 645 (Tex. 2008) (quoting Hermann v. Likens , 39 S.W. 282, 284

(Tex. 1897)). Here, the jury found that

John and Lyda had “adversely possessed the land east of lot 5 of Reid Lake

Estates to the water’s edge for at least a 10 year period” and that Mark and

Laureen had “adversely possessed the land east of lot 6 of Reid Lake Estates to

the water’s edge for at least a 10 year period.” The trial judge rendered a judgment on the

verdict as follows:

It is therefore ORDERED, ADJUDGED and DECREED that the plaintiffs John

L. and Lyda Boyer be awarded fee simple title to the property east of lot 5 to

the [water’s] edge and Mark L. and Laureen Boyer be awarded fee simple title to

the property east of lot 6 to the water’s edge as shown on exhibits “A” and “B.”

The

trial court attached both exhibits to the judgment. Exhibit A is a topographical map of the

eastern shore of Reid Lake and the properties abutting the lake; it identifies

the water’s edge. Exhibit B is a survey

of Reid Lake and the properties abutting the lake shows the property lines of

the lots surrounding the lake, identifies the property owners of each lot, and

identifies the top of the bank for the entirety of Reid Lake.

RECC first

argues that the description of the property in the judgment is insufficient

because it does not specify the northern and southern boundaries of the awarded

property located east of lots 5 and 6.

According to RECC, there are two possible interpretations a surveyor

might adopt for this provision in the judgment, and thus the location of the

property cannot be determined with reasonable certainty. First, a surveyor could interpret the

judgment as fixing the boundaries of the land east of Lots 5 and 6 by extending

the northern and southern boundaries of those lots to the water’s edge. Second, a surveyor might alternatively

interpret the judgment as setting those boundaries only around the improvements

that Mark and John made to the two lots.

These two possible interpretations, according to RECC, require a

decision exercised with discretion, and therefore the judgment is legally insufficient.

RECC did not present any evidence that its suggested second interpretation

would be an interpretation of a professional surveyor. During cross-examination, RECC’s expert did not disagree that he could locate the

northern and southern boundaries of the eastern property by drawing a straight

line from the existing northern and southern boundaries for lots 5 and 6. We conclude that the judgment described the

northerly and southern boundaries of the two tracts with reasonable certainty.

RECC

next argues that the description is inadequate because the depth of the property

to the east is uncertain. According to

RECC, the property east might reach the

water’s edge on the other side of the

lake and therefore include the lake within those boundaries since all of that

land is technically “east” of lots 5 and 6.

Common sense, however, dictates that “east of [lot 5 and lot 6] to the

water’s edge” stops at the first water’s edge.

We

conclude that a reasonable, competent surveyor would read the judgment to mean

what it says—in awarding the land east of lot 5 and lot 6 to the water’s edge,

the trial court awarded land immediately east of lot 5 and lot 6, bounded by

extending the northern and southern boundaries of lot 5 and lot 6, ending at

the water’s edge on the western side of the lake. Such a reading does not require the surveyor

to exercise his discretion, but merely his common sense.

RECC

also contends the judgment insufficiently describes the property because

although the judgment refers to the lots by number, the maps attached to the

judgment do not. In order to locate

those lots, RECC argues, one would need to rely upon tax maps that are not in

evidence or referred to in the judgment.

However, the Texas Supreme Court has stated that we should be willing

“to read property descriptions in tax judgments alongside the property

descriptions in related petitions and judgment rolls to identify the property

conveyed, thus avoiding the inequity of erasing otherwise valid tax judgments

at the public’s expense.” AIC Mgmt. , 246 S.W.3d at 647 (citing Willoughby v. Jones , 251 S.W.2d 508

(Tex. 1952)). Although the Supreme Court

made this statement regarding judgments conveying land to satisfy tax

judgments, we conclude that the principle that surveyors can refer to public

documents (like tax maps or appraisal records) in identifying property awarded

at trial is equally applicable in cases involving adverse possession. See

Preston Exploration Co. v. Chesapeake Energy Corp. , CIV.A. H-08-3341, 2010

WL 3155893 , at *4 (S.D. Tex. Aug. 10, 2010) (interpreting AIC Management to hold that courts may refer to prior tax

petitions, HCAD records, and tax tract maps, all of which are public records,

in interpreting judgments awarding land in disputes over oil and gas

interests).

Here,

Mark and John’s expert witness surveyor testified that he would be able to

identify the land in question with the judgment, the attached maps, and a tax

map. And RECC concedes in its brief that

a person using the tax maps could locate lots 5 and 6. Accordingly, we hold that the judgment

describes with reasonable certainty the land in question awarded to Mark and

John by adverse possession.

B.

Sufficiency of Description of

Land in Pleadings Claims

The Texas Rules of Civil Procedure state that “[t]he judgment

of the court shall conform to the pleadings, the nature of the case proved and

the verdict, if any.” Tex. R. Civ. P. 301. A judgment in favor of the plaintiff in a

suit for land must be based upon proper allegations and a sufficient

description of the land must be contained in the pleadings. Stovall

v. Finney , 152 S.W.2d 887, 890 (Tex. Civ. App.—Amarillo 1941, no writ).

RECC argues the description of the land sought in Mark and

John’s pleadings is vague. The trial

court rejected this contention, repeatedly stating that the pleading was

“clear” and the parties were fully aware of the property that was at issue.

RECC specifically contends that the phrase “with regard to the property east

of lots 4, 5, and 6 by limitation title” could be interpreted to mean that Mark

and John are claiming all of the RECC

property east of lots 4, 5 and 6 to the edge of Reid Lake, meaning the banks

surrounding the entire lake. [12] We do not agree for the same reasons as

described above for why we do not agree that the judgment itself is vague. The pleadings are describing land to the east

of the lots to the water’s edge. It

would not be reasonable to interpret these pleadings as claiming property on

the other side of the lake.

RECC also argues that an adverse possession claim may only be

brought as a trespass to try title action under Texas Rule of Civil Procedure

738. Citing Stewart v. Collatt , RECC contends that the property description in

Mark and John’s pleadings is so vague that it does not satisfy Rule 738’s

strict pleading requirements. 111 S.W.2d

1131, 1132 (Tex. Civ. App.—Fort Worth 1937, no writ). Stewart ,

however, is factually distinguishable from the present case. In Stewart ,

the plaintiffs brought a trespass to try title action under the predecessor to

Rule 783. Id . The property was

identified with three separate descriptions. The court of civil appeals held

that the plaintiff’s pleadings were “fatally defective because of uncertainty

and repugnancy in the description of the land sought to be recovered.” Id. The descriptions in Mark and John’s

pleadings, on the other hand, are fairly straightforward: property east of lot

5 and 6 to the water’s edge, as shown on the map attached to the third

supplement to their original petition.

Mark and John argue, and we agree, that their pleadings are

sufficient even under the stricter pleading standards of a trespass to try

title action, which requires a “description of the premises by metes and

bounds, or with sufficient certainty to identify the same, so that from such

description possession thereof may be delivered.” Tex.

R. Civ. P. 783. Mark and John’s

pleadings include a tax map that identifies the lots in question by lot number

and is similar to the survey attached to the judgment as Exhibit B.

We conclude that Mark and John’s pleadings sufficiently

described the property in question, even under the stricter pleading standards

of a trespass to try title action.

Having determined that the judgment describes with reasonable

certainty the land in question awarded to Mark and John and that Mark and

John’s pleadings sufficiently described the property in question even under the

stricter pleading standards of a trespass to try title action, we overrule

RECC’s fifth issue.

IV.

Trespass

A.

Trespass as a Matter of Law

In response to question 4, the jury rejected RECC’s claims

that Boyer, Inc and Lonestar trespassed on its property. RECC raises two issues on appeal with respect

to those claims. In its fourth issue,

RECC contends that the trial court erred in overruling RECC’s motion for JNOV

because the evidence conclusively established that both Lonestar and Boyer,

Inc. trespassed on RECC’s property located east of lots 4, 6 and 7.

With respect to the property located to the east of lots 6

and 7, RECC maintains that a reversal of the trial court’s judgment awarding a

“roadway” easement to Boyer, Inc. and Lonestar over that portion of RECC’s

property requires a finding that both companies’ undisputed use of the roadway

constitutes a trespass. Boyer, Inc. and

Lonestar do not disagree in their brief.

Because Boyer, Inc. and Lonestar have conceded that they did not have an

easement, and it therefore necessarily follows that they trespassed on RECC’s

property, [13]

we sustain this limited portion of RECC’s fourth issue, reverse this portion of

the judgment of the trial court, and render judgment in favor of RECC that

Boyer, Inc. and Lonestar trespassed on RECC’s property located east of lots 6

and 7 as a matter of law, and remand the case for the determination of damages

for this trespass.

B.

Jury Charge on Trespass

With respect to the area east of lot 4, RECC concedes that it

did not prove trespass as a matter of law.

Nevertheless, RECC contends that the judgment should be reversed and the

case should be remanded for a new trial on this issue due to an error in the

jury charge. Specifically, in its

seventh issue, RECC contends that the trial court erred in submitting question

four to the jury because it contained an incorrect statement of the law with

respect to RECC’s trespass claim. RECC

argues that the trial court erred in instructing the jury that “[a] person is

not a trespasser if he has a good faith belief that he is the true owner, and

has reasonable grounds for the belief, but he must be ignorant that his title

is contested by one having a better right.”

RECC argues, and the Boyers concede, that there is no “good faith”

defense to the tort of trespass to real property and that the inclusion of the

“good faith” trespasser instruction was erroneous.

We

agree that the trial court’s inclusion of the “good faith” trespasser

instruction was erroneous. See generally

Wilen v. Falkenstein ,

191 S.W.3d 791, 798 (Tex. App.—Fort Worth 2006, pet. denied) (citing Trinity Universal Ins. Co. v.

Cowan , 945 S.W.2d 819, 827 (Tex. 1997)

(stating that party’s subjective intent or awareness of property’s ownership is

irrelevant for purposes of determining whether party committed tort of trespass

to real property). We also agree that

the error, which misled the jury into believing that there was a “good faith”

defense to the tort of trespass to real property, probably resulted in the

rendition of an improper judgment. See Transcon.

Ins. Co. v. Crump ,

330 S.W.3d 211, 225 (Tex. 2010) (quoting Columbia Rio Grande Healthcare,

L.P. v. Hawley , 284 S.W.3d

851, 856 (Tex. 2009)) (stating appellate court should not reverse judgment for

charge error “unless the error was harmful because it probably caused the

rendition of an improper verdict”).

Accordingly, we reverse the judgment of the trial court and

remand the case for a new trial on RECC’s trespass claim with respect to RECC’s

property located to the east of lot 4.

Conclusion

We sustain RECC’s first, second and fourth issues, and overrule

RECC’s third and fifth issues. Accordingly,

we affirm the portions of the trial court’s judgment awarding (1) John the land

east of lot 5 and to the water’s edge by adverse possession and (2) Mark the

land east of lot 6 and to the water’s edge by adverse possession. We

reverse the remaining portions of the trial court’s judgment and render

judgment that (1) Mark, John, and Boyer, Inc. take nothing on their

prescriptive easement and easement by estoppel claims, (2) Lonestar take

nothing on its easement by estoppel claim, (3) Lyda and Laureen take nothing on

their adverse possession claims, and (4) RECC succeed on its trespass claims

against Boyer Inc. and Lonestar for the land east of Lots 6 and 7. We remand

the case to the trial court for further proceedings limited to (1) RECC’s

trespass claims against Boyer Inc. and Lonestar for the land east of lot 4 and

(2) determination of damages for RECC’s trespass claims.

Harvey

Brown

Justice

Panel

consists of Chief Justice Radack and Justices Sharp and Brown.

Justice

Sharp concurring in the judgment only

[1] In 2002, Boyer, Inc. and Lonestar were

tenants of lots 5 and 6, respectively.

Boyer, Inc. outgrew the space and moved to a new location across the

street a few years later. Lonestar now

occupies both spaces.

[2] They also concede that the trespass question

contained an improper instruction, and contend that a limited remand on the

issue of liability and damages for trespass is therefore appropriate. We address this issue below.

[3] There is also evidence in the record that

prior to Mark and Lyda’s purchase of lot 21 in 2002, John drove a golf cart and

jeep on the roadway “any number of times” and that Boyer, Inc. and Lonestar

made extensive commercial use of the roadway from 2002 until 2006. Even if we were to consider this evidence for

purposes of our analysis (an issue which we do not decide), the evidence would

still be insufficient to entitle Mark to an easement by prescription with

respect to the roadway.

[4] According

to Mark, they also used it “a couple of times” to assist their neighbor, Dell

Webb, with his road. Mark did not

describe when this action occurred before 2002 nor the actions taken to assist

Webb.

[5] It is unnecessary,

therefore, for us to reach RECC’s additional contention that even if the issue

of easement by estoppel was properly before the jury, there was no evidence to

support the trial court’s judgment with respect to this issue.

[6] The

trial court was not asked to grant a trial amendment based on lack of surprise

as a result of the estoppel affirmative defense.

[7] The

only statement identified in the Boyers’ petitions (they filed an original and

four supplemental petitions) is a statement in which RECC stated that it would

not take action to arrest the encroachment of the lake onto the banks of the

lakefront properties.

[8] An

easement by prescription was, however, properly plead as a defense to RECC’s

trespass claim and therefore was properly submitted to the jury as a defense.

[9] Because

the Boyers and Lonestar concede that the trial court’s judgment erroneously

awards John, Boyer Inc. and Lonestar an easement appurtenant, we have restated

the issue to make it clear that we do not consider the issues related to that

portion of the award.

[10]

Although

it might appear, as RECC contends in its brief, that fishing, feeding ducks and

other recreational activity are insufficient to establish hostile use of the

land, such recreational activities can be sufficient to establish hostile use

with respect to land that both parties concede is only suitable for

recreational pursuits. Otherwise, it

would be impossible as a matter of law for anyone to adversely possess land

intended for recreational purposes, which would be contrary to our precedent that

holds that no one can claim exemption from these statutes unless they are

excluded expressly or by necessary implication.

See Trustees of College of De Kalb

v. Williams , 143 S.W. 348, 350 (Tex. Civ. App.—Texarkana 1912, writ ref’d)

(stating no one can claim exception from adverse possession statutes except

those excluded expressly or by necessary implication).

[11] As

previously discussed, RECC also argues that the judgment is defective because

(1) it awarded an appurtenant easement

to Boyer, Inc., Lonestar, John, and Mark, (2) it does not adequately describe

the easement awarded, (3) the portion of the judgment that awarded the easement

is not supported by the pleadings, and (4) it granted appellees an easement

over property that is owned by someone who is not a party to the present suit,

thus depriving the owner of his or her due process rights. Having sustained RECC’s challenges to the

trial court’s award of an easement to Boyer, Inc., Lonestar, John, and Mark, we

need not address these issues.

[12] Mark

abandoned his claim to RECC’s property east of lot 4 by adverse

possession.

[13] For lot 6, the damages will be limited to the time

ownership was acquired by Mark through adverse possession.