dissenting.
I dissent. Today the Court has placed a heavy burden upon cotenants (frequently family members) who partition their property. The Court would apparently require former cotenants to vigilantly watch over their partitioned tract (if not immediately remove any pre-existing fences inconsistent with the new boundaries and erect new fences on the new dividing line) to insure that former cotenants on adjoining tracts do not attempt to use their adjacent property and acquire title by “adverse” possession. While ignoring the unique characteristics of cotenants and cotenancy, the Court inappropriately applied the law concerning grantors who remain in possession of their land after the execution of a deed conveying the property to another and subsequently claiming title by adverse possession.
*570I agree with the following reasoning of the Third Court of Appeals:
[A]fter a partition, one party’s continued possession of a tract awarded to another is presumed to be permissive, similar to that of a grantor who remains in possession, and repudiation and notice are required before limitations begin to run. Sweeten v. Park, 154 Tex. 266, 276 S.W.2d 794, 797 (1955); Runnels v. Whitfield, 593 S.W.2d 388, 390 (Tex.App.1979, no writ); Texas Co. v. Argo Oil Corp., 277 S.W.2d 308, 309 (Tex.Civ.App.1955, writ ref'd n.r.e.). Likewise, one cotenant claiming adverse possession as to other cotenants must repudiate title in such a manner as to bring such repudiation to the notice of the other cotenants. Todd v. Bruner, 365 S.W.2d 155 (Tex.1963).
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[In this case,] appellees were required to show repudiation and notice before limitations commenced. Walter Washington was not a stranger claiming possession to the 22.25-acre tract. Instead, he, in the most solemn manner, conveyed that acreage to his brother, Col. Washington. His deed to Col. Washington estopped him, as grantor, from claiming that his possession of the 22.25 acres was adverse. Kidd v. Young, 144 Tex. 322, 190 S.W.2d 65, 66 (1945). Under the circumstances, Walter’s possession of the tract must be regarded as subservient to the title held by Col. Washington, until such time as he repudiated Col. Washington’s title and brought such repudiation to the Colonel’s notice. Haynes v. Dunn, 518 S.W.2d 880, 885-86 (Tex.Civ.App.1975, writ ref’d n.r.e.).
The district court’s submission is probably adequate in the usual situation where a stranger in possession of property raises a claim adverse to the record title owner. Under the facts of this case, however, the district court was required to instruct the jury regarding repudiation and notice. Because the district court’s submission did not include the elements of repudiation and notice, it was erroneous ....
798 S.W.2d at 601-02. After partition, a cotenant’s possession of a tract awarded to another cotenant should be presumed to be permissive. Under these circumstances, a former cotenant claiming adverse possession of a tract awarded to another former cotenant or cotenants must repudiate title in a manner sufficient to bring such repudiation to the notice of the former cotenant or cotenants.
For these reasons, I dissent.