Reverse, Render, and Remand; Opinion Filed March 6, 2013.
In The
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No. 05-I 1-00732-CV
WILLIAM B. BLAYLOCK AND ELAINE C. BLAYLOCK, Appellants
V.
THOMAS P. HOLLAND AND KIMBERLY HOLLAND, Appellees
On Appeal from the 193rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. 09-8910
OPINION
Before Justices FitzGerald, Fillmore, and Richter’
Opinion by Justice Richter
This appeal arises from a boundary dispute between adjoining landowners. William B.
Blaylock and Elaine C. Blaylock appeal the trial court’s judgment awarding title to a strip of
property originally part of the Blaylocks’ lot to Thomas P. Holland and Kimberly Holland by
adverse possession. The dispositive issue before us is whether there is legally sufficient
evidence to support the trial court’s judgment. For the reasons that follow, we conclude there
was not. We therefore reverse the trial court’s judgment and render judgment for the Blaylocks.
In light of our disposition, we remand this cause to the trial court for consideration of the
Blaylocks’ request for attorney fees.
The Honorable Martin E. Richter, Retired Justice, sitting by assignment.
BACKGROUND
The t3laylocks and the Hollands are neighbors whose backyards share a common rear
boundary. This dispute arose after the Hollands built a chain link fence in August of 1999. The
Blaylocks asserted that the chain link fence was on the Blaylocks’ property and on or within an
easement at the rear of the Blaylock property.
2 After the Hollands refused to remove their fence,
the Blaylocks filed this lawsuit to quiet title on JuLy 17, 2009. The flollands filed a counterclaim
asserting they were entitled to possession and title to the disputed s trip by adverse possession.
The case was tried before the court without a jury and judgment was rendered in favor of
the Hollands and against the Blaylocks. Among other things. the trial court found that the
Hollands should be awarded title to the property on their side of the fence separating the parties’
backyards by adverse possession: that the Blaylocks brought their suit to quiet title later than ten
years after their cause of action accrued: that the disputed property had been held in peaceable
and adverse possession by the Hollands for over ten years: and that the Hollands had
continuously cultivated, used, and enjoyed the property for over ten years. The Blaylocks appeal
the trial court’s judgment,
ANALYSIS
In their second issue, the Blaylocks challenge the legal sufficiency of the evidence to
support the trial court’s judgment with respect to adverse possession. We review a trial court’s
findings of fact for legal and factual sufficiency using the same standards applied to a jury
verdict. Ortiz i’. Jones, 917 S.W.2d 770, 772 (Tex. 1996). Where, as here, the Blaylocks attack
the legal sufficiency of the evidence to support an adverse finding on which they did not have the
2
The chain link fence was constructed up against a pre-existing wooden fence. The former property owner
of the Blaylock lot testified that the wooden fence was about three feet east of the lot’s north-south boundary line in
the rear. The wooden fence was on the Blaylock lot when the property was sold to the Blaylocks in 1993.
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burden of proof, they must show there is no evidence to support the adverse finding. See
Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex, 1983). In evaluating a noevidence challenge,
we view the evidence in the light most favorable to the finding, disregarding all contrary
evidence that a reasonable factfinder could have disbelieved. See AutoZone, Inc. v. Re yes, 272
S.W.3d 588, 592 (Tex. 2008). If there is more than a scintilla of evidence to support a finding,
we must uphold it. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
Adverse Possession
Adverse possession is an actual and visible appropriation of property beginning and
continuing under a claim of right that is inconsistent with and hostile to the claim of another
party. See TEX, Civ. PRAC. & REM. CODE ANN, § 16.021( ) (West 2002). A lawsuit to recover
property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the
property must be brought no later than ten years after the day the cause of action accrues. See
TEX, CIV. PRAC. & REM, CODE ANN. § 16.026 (West 2002). Thus, to establish adverse
possession, the Hollands must demonstrate that they actually and visibly appropriated the
disputed property for ten or more consecutive years such that their use of the property gave the
Blaylocks notice of the hostile claim. See Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex, 1990).
The Blaylocks argue there is no evidence that the Hollands’ use or appropriation of the
strip in question was sufficient to give notice that they were asserting a claim to the property that
was hostile to the Blaylocks’ ownership interests until they constructed the chain link fence on
the property in August 1999. The Blaylocks contend that because their suit to quiet title was
filed less than ten years after the Hollands erected the chain link fence, the trial court erred in
awarding the property to the Hollands by adverse possession. The Hollands respond that they
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have used and enjoyed the disputed strip since 1995. when they 1rst moved onto the property.
They therefore assert the trial court properly awarded them title by adverse possession.
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 to the claim of the
owner, and consistent and continuous for the duration of the statutory period. See Id. at 645.
The actual possession must indicate unmistakably an assertion of a claim of exclusive ownership
in those claiming title by adverse possession. See Tran v, Macha, 213 S.W.3d 913, 914 (Tex.
2006). Moreover, there must be an intention to claim property as one’s own to the exclusion of
all others; mere occupancy of land, absent an intention to appropriate it, will not suffice. See
El/isv. Jansing. 620 S.W.2d 569, 57 1—72 (Tex. l9l). Mowing the grass, planting flowers, and
maintaining a hedge are not sufficient hostile acts to give notice of an exclusive adverse
possession. See Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex. 1985); Masonic Bldg. Ass ‘n, of
Houston. Inc. v. McWhorter, 177 S.W.3d 465, 475—76 (Tex. App.—Houston [1st Dist] 2005, no
pet.).
Before the Hollands constnLcted the chain link fence in August of 1999, the only fence
separating the parties’ properties was the wooden fence located on the Blaylock property.
Kimberly Holland testified, however, that she believed all the land from their side of the wooden
fence belonged to them. She further stated that she and her family had used the entire yard since
they moved in. When asked to describe the type of use, she replied, “Daily use. We have—well,
we have a son and also had a nephew living with us, and we’ve had animals, so it’s been
continuous use. And through the years we’ve added things, like a swimming pool.” In response
to a question on direct examination regarding who used the three-foot public utility easement at
the back of the yard, Holland stated, “Members of like private utility companies, like TXU,
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Southwestern Hell. Many members ol my limily and friends that have been invited to activities
in my backyard, and our kids. And, of course, we’ve used the whole backyard, so I’ve had a lot
of people there.” The Hollands also offered several photographs of their backyard in 1995
depicting their yard and the wooden fence. This is the extent of the evidence on which the
Hollands rely to support their position that since 1995, they have manifested intent to appropriate
the disputed strip and that their use of the strip was hostile to the Blaylocks’ ownership interests.
Before August 1999, however, there was nothing about the Hollands’ actions with respect to the
strip in question that was necessarily inconsistent or adverse to the Blaylocks’ ownership. The
evidence shows that the [-lollands mistakenly thought the preexisting wooden Fence was the rear
boundary line of their property. Kimberly Holland’s testimony that the Hollands used what they
considered to be their entire backyard since they moved to the property in 1995 is no evidence of
their visible appropriation of the disputed strip and thus legally insufficient to support the trial
court’s finding of adverse possession. It was not until the HoHands erected the chain link fence
in August 1999 that their actions with respect to the disputed strip became inconsistent with and
hostile to the Blaylock’s ownership interests. See Tra,i, 213 S.W.3d at 915 (building structure on
property may be sufficient evidence of adverse possession).
Conclusion
Based on the record before us, the evidence is legally insufficient to support the trial
court’s finding that the Hollands acquired the disputed strip of property by adverse possession
because no evidence supports the trial court’s finding that the Hollands appropriated the property
in an actual and visible manner, hostile to the true owner, for more than ten years. In light of our
conclusion, we need not address the Blaylocks’ first issue. We reverse the judgment of the trial
court and render judgment in favor of the Blaylocks. We remand the cause to the trial court for
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entry of judgment consistent with our opinion and for consideration of the B1ay1ocks request for
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JUSTICE. ASSIGNED
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JUDGMENT
WILLIAM B. BLAYLOCK AND ELAINE On Appeal from the 193rd Judicial District
C. BLAYLOCK, Appellant Court, Dallas County, Texas
Trial Court Cause No. 09-89 10,
No. 05-1 1-00732-CV V. Opinion delivered by Justice Richter.
Justices FitzGerald and Fillmore
THOMAS P. HOLLAND AND participating.
KIMBERLY HOLLAND, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED. We RENDER judgment in favor of the appellants William B. Blaylock and
Elaine C. Blaylock. We REMAI%D this cause to the trial court for entry of judgment consistent
with our opinion and for consideration of appellants’ request for attorney’s fees.
It is ORDERED that appellants William B. Blaylock and Elaine C. Blaylock recover
their costs of this appeal from appellees Thomas P. Holland and Kimberly Holland.
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Judgment entered this day of March, 2013.
MARTIN RICHTER
JUSTICE. ASSIGNED