dissenting.
I agree with the majority that Waddy asserted a cause of action based on the theory of inverse condemnation in his plaintiff’s original petition. I further agree that the right to maintain such a cause of action is lost after the expiration of the 10-year period necessary to acquire land by adverse possession. Because I do not agree with the majority’s application of the 10-year statute to the facts in this case, I respectfully dissent.
The majority states that it is uncontested the sewer line was installed in 1919, and that the statute of limitations started running for an inverse condemnation claim at that time. (Emphasis added.) The issue in the case that separates me from the majority is (1) whether the 10-year period started running in 1919; or (2) when Wad-dy first learned of the existence of the sewer; or (3) at some other time.
The majority correctly cites Hudson v. Arkansas Louisiana Gas Co., 626 S.W.2d 561, 563 (Tex.App.—Texarkana 1981, writ ref’d n.r.e.), for the proposition that a 10-year statute of limitations applies to a claim for inverse condemnation, but ignores the implied application of the discovery rule to claims of inverse condemnation in the Hudson holding.
In Hudson, a gas company laid a major gas line under certain tracts of land in 1940, some 37 years before subsequent land owners discovered the line. The court, as in this case, construed the plaintiff’s petition as sufficient in making out a claim of inverse condemnation. However, the Hudson court reversed the summary judgment granted by the trial court stating that the 10-year statute of limitations *104should have been considered by the trial court. The Hudson court did not decide as a matter of law that the statute began running in 1940. »
The majority states that when the entry on land is made, the statute begins running, citing Hickman v. Ferguson, 164 S.W. 1085, 1087 (Tex.Civ.App.—Austin 1914, no writ). Hickman is an adverse possession case, and does not directly construe rights under claims of inverse condemnation. If Hickman correctly applies here, Hudson would necessarily have been decided incorrectly because the statute would have begun to run in 1940, and Hudson’s claim brought after discovery of the line in 1977 would have been time barred. I cannot believe the Texarkana court in Hudson returned the cause to the trial court for a ruling on the 10-year statute as a mere academic exercise. In my judgment, the Hudson court perceived that a “real” dispute existed under the facts on the application of the 10-year statute. The facts in Hudson vary little in legal implication from the set of facts now before us. I respectfully suggest the majority’s holding cannot be reconciled with Hudson.
The facts that both distinguish and reconcile the holdings of Hickman and Hudson deal with the “open and visible” nature of the entry onto the land and its continued use. In Hickman, the person claiming title adverse to others fenced and cultivated the land as well as built houses and barns on the tract in question. The claimant also occupied the house for many years, displaying to the world the open and visible nature of his possession. In Hudson, as in the case before us, the entry to the land was hidden, or at least an unresolved fact issue remains about the open and visible nature of the possession.
“Adverse possession” means 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) (Vernon 1986) (emphasis added). To meet the requirements of the 10-year-statute of limitations, an adverse claimant must prove an actual and visible appropriation of the claimed land for 10 or more consecutive years. Parker v. McGinnes, 809 S.W.2d 752, 753 (Tex.App.—Houston [1st Dist.] 1991, no writ). If there is not a verbal assertion of claim to the land brought to the knowledge of the landowner, the adverse possession must be so open and notorious and manifested by such open or visible act or acts that knowledge on the part of the owner will be presumed. Brown and Associates, Inc. v. McMahon, 525 S.W.2d 553, 559 (Tex.Civ.App.—Tyler 1975, no writ) (applying the 10-year statute).
“Whenever the owners of land obtain knowledge of the fact that the county, claiming the right to maintain a road ... takes actual and visible possession of the land ... the period of limitation begins to run.” Black v. Terry, 183 S.W.2d 685, 687 (Tex.Civ.App.—Amarillo 1944, no writ).
The majority cites Eastham v. Gibbs, 58 Tex.Civ.App. 627, 125 S.W. 372, 374 (Fort Worth 1910, no writ), also an adverse possession case, for the proposition that once a statute begins to run, it will not be interrupted in behalf of a subsequent purchaser objecting to its operation for want of notice. While true as far as it goes, the majority’s use of the holding begs the question that is determinative here: When did the statute begin to run?
The record as quoted by the majority states Waddy became record owner of the property on October 5, 1979, and that he discovered the presence of the sewer line on August 19, 1981, and filed suit on August 28, 1989. Clearly, the suit was brought outside the two-year statute but inside the 10-year statute — assuming Wad-dy or any predecessor was not on notice of the alleged “taking” by the City until October 5, 1979.
The City should properly win by summary judgment if it was in fact the rightful owner of the easement by adverse possession as claimed prior to August 28,1979, at least 10 years and one day prior to Wad-dy’s suit. To establish its right to summary judgment, the City must show Waddy could not comply with Tex.Civ.Prac. & Rem. Code Ann. § 16.026 (Vernon Supp.1992), which states in pertinent part:
*105Adverse Possession: 10-Year Limitations Period
(a) A person must bring suit not later than 10 years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property.
The City sought summary judgment in two different ways, by application of the 10-year statute of limitations to Waddy, and/or by establishing the existence of title to the easement by adverse possession.1 The City could have discharged its burden relative to the 10-year statute of limitations by: (1) proving by competent evidence that its intrusion into the property in question was so open and obvious that knowledge on the part of the owner (actually any owner in the chain of title) would be presumed, Brown, 525 S.W.2d at 559; or (2) proving by competent evidence that someone in the chain of title had knowledge of the sewer (whether open and obvious or not) at least 10 years and one day prior to the filing of Waddy’s suit. The City could also have affirmatively proved its title to the property by adverse possession. In other words, the City could have won its suit by proving it already owned the land by adverse possession, or that knowledge of the “taking” is imputed to Waddy somewhere between 1919 and 10 years and one day before Waddy filed suit. This the City has failed to do, and the majority does not suggest in its opinion that it has.
The majority’s analysis seems to be limited to the application of the statute of limitations to Waddy by imputing knowledge of the “taking" to him, which the majority decides happened in 1919.2 The majority further implies that any deficiencies in the character of the alleged “taking” are defensive in nature and are waived if not pled. No authority is cited for this proposition. Waddy pled in his original petition that he had no knowledge of the sewer line when he purchased the property. He also pled that the City “never secured any legal right or authority to operate the sewer line,” nor had there ever been a “dedication of the property to public use for such purpose.” (Emphasis added.) No special exceptions to Waddy’s petition were filed. The only way the City could have obtained legal title to the property, within the context of the City’s pleading, is by adverse possession. If the majority is correct, which I do not concede, that Waddy had the burden of pleading lack of notice to any and all owners throughout the change of title, or some other deficiency in the character of the “taking,” the above quoted pleading is sufficient to do so, particularly in the absence of special exceptions.
Because I believe the City’s proof is deficient to obtain a summary judgment under the strict standards of Tex.R.Civ.P. 166a, and that the majority has misplaced the burden of proving the open and obvious character of the “taking,” I would return the cause to the trial court for further proceedings.
. In my opinion, affirmance on Ae oAer grounds of summary judgment asserted by Ae City is proper. I join the majority’s findings relative to all causes of action other Aan inverse condemnation and the defensive issue of easement by adverse possession.
. There is no evidence in Ae record of Ae identities of any of the previous record owners of Ae property. We cannot say from the evidence wheAer or not the property was even privately owned in 1919, yet Ae majority finds the evidence sufficient to say Ae cause of action for inverse condemnation accrued in 1919, and the statute of limitations began to rim.