Mead v. RLMC, INC.

JOHN CAYCE, Chief Justice,

dissenting.

I respectfully dissent. The Coles’ claim to the disputed property is based on their contentions that the Coles acquired the property through adverse possession because the disputed acreage was designedly enclosed, it was used continuously by the Coles or their tenants for grazing or non-grazing purposes, and the Coles made actual and visible use of the property for the statutory period.

It is well settled that when a claimant relies on grazing to acquire limitation title, he must present evidence that he “designedly enclosed” the land at issue.1 If a fence existed before the claimant took possession of the land and the claimant fails to *720demonstrate the purpose for which it was erected, then the fence is a “casual fence.”2 Repairing or maintaining a casual fence, even for the express purpose of keeping the claimant’s animals within the enclosed area, without a showing that the fence’s character was substantially modified, does not change a casual fence into a designed enclosure.3

An exception to the designed enclosure requirement has been recognized if the claimant can prove sufficient nongrazing use of the land such that the true owner would have notice of the hostile claim.4 Examples of such nongrazing use include removing brush and trees from the property; 5 farming, building corrals or watering ponds for cattle, or constructing other buildings on the property;6 and cultivation of the land.7 Only when the nongrazing and grazing use of the land is hostile and excludes all others, however, will a designed enclosure showing be unnecessary.8

The summary judgment evidence establishing the following facts is uncontrovert-ed:

• No Designed Enclosure. The disputed property has never been enclosed by a fence built by the Coles, (emphasis supplied) An old dilapidated fence exists along the northern boundary of the disputed property, but “has been in disrepair for several decades.”
• No Substantial Modification of the Northern Fence. Cole’s tenant’s activities in connection with the old fence on the north side of the disputed property have been limited to “replacing and adding posts, as well as adding, stretching, and tying wire.”
• No Continuous, Actual, Visible Use. The Coles have grazed cattle on the disputed property from time to time,9 but neither the Coles nor their tenants have ever placed “any feeders, hay bales, corrals, pens, stalls, barns, or anything else on the Disputed Acreage that would evidence an adverse claimant’s presence,” and they have never planted crops on, cultivated, or harvested the disputed property-

*721These facts conclusively establish that the disputed property was not designedly enclosed by the Coles; that the Coles never substantially modified the fence on the northern boundary of the disputed property so as to change the fence’s character; that the disputed property was not used continuously by the Coles, or their tenants, for any purpose such that the McCutchins had notice of the hostile claim; and, that the Coles have not made actual and visible use of the disputed property for the statutory period of ten years.10 Consequently, I would hold that there is no genuine issue of fact with respect to these issues and that the McCutchins are entitled to summary judgment as a matter of law. I would, therefore, affirm the trial court’s judgment.

. See, e.g., McDonnold v. Weinacht, 465 S.W.2d 136, 141-42 (Tex.1971) (citing Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781, 785 (1954)); Perkins v. McGehee, 133 S.W.3d 287, 292 (Tex.App.-Fort Worth 2004, no pet.).

. See Rhodes v. Cahill, 802 S.W.2d 643, 646 (Tex.1990); Orsborn, 153 Tex. 281, 267 S.W.2d at 786.

. See Rhodes, 802 S.W.2d at 646; McDonnold, 465 S.W.2d at 141-42.

. See Perkins, 133 S.W.3d at 292.

. Id.

. See Trevino v. Trevino, 64 S.W.3d 166, 172 (Tex.App.-San Antonio 2001, no pet.).

. See Butler v. De La Cruz, 812 S.W.2d 422, 425 (Tex.App.-San Antonio 1991, writ denied).

. Cf, e.g., Butler v. Hanson, 455 S.W.2d 942, 945-46 (Tex.1970) (holding that constant use for grazing on tracts which were contiguous and operated as a unit, along with evidence of modifications to an existing fence and a general reputation in the community that the property in question belonged to the claimant, was sufficient evidence of adverse possession); Caver v. Liverman, 143 Tex. 359, 185 S.W.2d 417, 419 (1945) (holding that the connecting of a new fence to an existing fence, together with a combination of grazing and woodcutting, is some evidence of adverse possession); Fish v. Bannister, 759 S.W.2d 714, 720 (Tex.App.-San Antonio 1988, no writ) (holding that constant heavy grazing, periodic harvest and sale of cedar, sale of two pipeline easements across disputed land, and the lease of disputed land for hunting was sufficient evidence of other use of grazed land to eliminate the need for proof of a designed enclosure).

.Cole states that he has used the disputed property for the grazing of livestock and “ranching,” however, Cole did not identify any ranching activities other than grazing of cattle.

. Compare Rhodes, 802 S.W.2d at 645-46 (adverse possession is not established when claimant paid taxes on disputed property, grazed cattle and goats on the property, and occasionally repaired fence enclosing the property), with Butler, 455 S.W.2d at 945 — 46 (adverse possession is established when the disputed property was constantly used for grazing, tracts in question were contiguous and operated as a unit, claimant made substantial modifications to fence, and the general reputation in the community was that claimant owned disputed property).