Luminant Mining v. PakeyBey

Case: 20-40803 Document: 00516019658 Page: 1 Date Filed: 09/17/2021

United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit

FILED
September 17, 2021
No. 20-40803 Lyle W. Cayce
Clerk

Luminant Mining Company, L.L.C.,

Plaintiff—Appellee,

versus

Kendi Narmer PakeyBey, also known as Narmer Bey, Chief,
also known as Kenneth Parker; Dawud Allantu Bey, First
Trustee of Amexemnu Taysha Trust; Amexemnu City State,
Incorporated; Anu Tafari Zion El, Second Trustee of
Amexemnu Taysha Trust,

Defendants—Appellants.

Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:19-CV-372

Before King, Higginson, and Wilson, Circuit Judges.
Cory T. Wilson, Circuit Judge:
Kendi Narmer PakeyBey, asserting that he is the heir of a nineteenth-
century tenant in common, came to Rusk County, Texas, to lay claim to his
land. Luminant Mining, a company that holds title to the land and uses it for
mining and logging operations, thought otherwise and filed suit in state court.
After removing the case to federal court, PakeyBey argued that Luminant’s
chain of title showed no partition of the tenancy, so the tenancy still existed.
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No. 20-40803

Luminant countered that it was entitled to a presumption of full ownership
or, alternatively, it had adversely possessed the property. The district court
granted summary judgment for Luminant on both grounds. We agree that
Luminant has fulfilled Texas’s adverse possession requirements and
therefore holds the land in fee simple. We AFFIRM.
I.
On March 20, 1848, the state of Texas conveyed 1,280 acres of land
in Rusk County, Texas, to Isham Chism and Jesse Walling as tenants in
common. Chism and Walling held undivided shares in the property, with
each tenant having an equal right to possess the whole property. See, e.g.,
Dierschke v. Cent. Nat’l Branch of First Nat’l Bank, 876 S.W.2d 377, 379 (Tex.
App. 1994) (citations omitted). Their tenancy in common differed
considerably from a fee simple interest, with which a titleholder has total
ownership of the property. See Jackson v. Wildflower Prod. Co., Inc., 505
S.W.3d 80, 88 (Tex. App. 2016) (citations omitted). This case turns on
whether Chism and Walling’s tenancy in common, through succeeding years
and conveyances, persists or at some point merged into fee simple ownership
of the land.
In 1979, about 131 years after Chism and Walling took title, the Texas
Utilities Generating Company started acquiring land that was once part of
the tenancy in common. That company was succeeded by the Texas Utilities
Mining Company, then by TXU Mining Company, and finally by Luminant
Mining Company, LLC. From 1979 to 1994, these companies acquired title
to roughly three dozen tracts of land once part of the Chism-Walling tenancy.
Each deed was duly recorded and the chain of title for each tract was traced
to a conveyance by either Chism or Walling. All the deeds purport to convey
a fee simple. Since at least 2009, Luminant has either mined lignite coal or
managed timber on the tracts.

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PakeyBey, Dawud Allantu Bey, the Amexemnu Taysha Trust, the
Amexemnu City State, and Anu Tafari Zion El (collectively, the PakeyBey
parties) assert they have severed ties with the United States of America and
are “Moorish Americans” who are “sovereign freemen under the
Republic . . . .” PakeyBey also asserts he is the heir of John Walling, the son
of Jesse Walling, and thus the inheritor of Walling’s tenancy in common. On
February 4, 2019, PakeyBey filed a warranty deed in Rusk County purporting
to convey roughly 951 acres 1 of the Walling-Chism tenancy to Bey and the
Amexemnu Taysha Trust.
The PakeyBey parties occupied the land and attempted to harvest
timber. Luminant discovered them and demanded they vacate the land,
asserting it alone was the owner of the property. When the PakeyBey parties
persisted in claiming rights to the land, Luminant filed a trespass-to-try-title
action 2 against them in state court, seeking damages and injunctive relief.
Luminant alleged it had superior title to the tracts and exclusive right to
possession of the land.
The PakeyBey parties removed the case to federal court on diversity
grounds. At the direction of the district court, the parties filed motions for
summary judgment. The district court granted summary judgment for
Luminant.
The district court examined the abstracts of title presented by the
parties and found that even though gaps existed in Luminant’s chain of title,

1
Initially PakeyBey claimed ownership of an additional 258 acres and the district
court found that Luminant was the exclusive owner of that property. The PakeyBey parties
do not appeal this judgment; thus, they have waived any arguments related to it. In re
Southmark Corp., 163 F.3d 925, 934 n.12 (5th Cir. 1999).
2
“A trespass to try title action is the method of determining title to lands,
tenements, or other real property.” Tex. Prop. Code Ann. § 22.001(a).

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Texas’s doctrine of presumed grant applied to fill those gaps. That doctrine
is in effect “a common law form of adverse possession” and settles “titles
where the land was understood to belong to one who does not have a
complete record title, but has claimed the land a long time.” Fair v. Arp Club
Lake, Inc., 437 S.W.3d 619, 626 (Tex. App. 2014) (citing Conley v. Comstock
Oil & Gas LP, 356 S.W.3d 755, 765 (Tex. App. 2011)). Basically, when a chain
of title reveals a gap, Texas courts can presume a grant of title from the party
preceding the gap to the party succeeding the gap. Clark v. Amoco Prod. Co.,
794 F.2d 967, 970 (5th Cir. 1986). 3 The district court did so here, concluded
that the gaps in Luminant’s chain of title therefore did not defeat its fee
simple ownership, and confirmed Luminant’s fee simple interest in the
tracts.
The district court specifically rejected the PakeyBey parties’ assertion
that Walling’s tenancy in common existed even after Chism’s conveyances
to Luminant’s predecessors. The district court further found that the
PakeyBey parties failed to demonstrate an actual connection between
PakeyBey and Walling. It alternatively found that summary judgment was
appropriate because Luminant had demonstrated a matured limitations
period under Texas’s adverse possession statutes. The PakeyBey parties
now appeal.
II.
“This court reviews a grant of summary judgment de novo, applying
the same standard as the district court.” Renfroe v. Parker, 974 F.3d 594, 599

3
More specifically, the doctrine of presumed grant can be applied when three
elements are met: (1) “a long-asserted and open claim, adverse to that of the apparent
owner”; (2) “nonclaim by the apparent owner”; and (3) “acquiescence by the apparent
owner in the adverse claim.” Adams v. Slattery, 295 S.W.2d 859, 868 (Tex. 1956) (internal
quotation marks omitted) (quoting Magee v. Paul, 221 S.W. 254, 256 (Tex. 1920)).

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(5th Cir. 2020) (citations omitted). Summary judgment is merited when
“the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). If a reasonable jury could return a verdict for the nonmoving party,
then a genuine dispute of material fact exists, and summary judgment is not
appropriate. Ahders v. SEI Priv. Tr. Co., 982 F.3d 312, 315 (5th Cir. 2020)
(quoting Hamilton v. Segue Software Inc., 232 F.3d 473, 477 (5th Cir. 2000)).
All facts and all reasonable inferences from facts should be construed most
favorably to the nonmoving party. Murray v. Earle, 405 F.3d 278, 284 (5th
Cir. 2005).
Because this is an action disputing title to real property in Texas, this
court applies Texas substantive law. United States v. Denby, 522 F.2d 1358,
1362 (5th Cir. 1975) (citing United States v. Williams, 441 F.2d 637, 643 (5th
Cir. 1971)). In Texas, “[b]y statute, a trespass-to-try-title action ‘is the
method of determining title to lands.’” Brumley v. McDuff, 616 S.W.3d 826,
831–32 (Tex. 2021) (quoting Tex. Prop. Code Ann. § 22.001(a)). In
these actions, “a plaintiff may prove legal title by establishing: (1) a regular
chain of title of conveyances from sovereign to the plaintiff; (2) a superior
title to that of the defendant out of a common source; (3) title by limitations
(i.e., adverse possession); or (4) possession that has not been abandoned.”
Id. at 832 (citing Rogers v. Ricane Enters., Inc., 884 S.W.2d 763, 768 (Tex.
1994)). As the crucial question is “the strength” of the plaintiff’s title rather
than the weaknesses of a defendant’s claims, Land v. Turner, 377 S.W.2d 181,
183 (Tex. 1964), we focus on whether Luminant has demonstrated a fee
simple interest in the tracts disputed by the PakeyBey parties.
III.
The district court concluded summary judgment was warranted for
Luminant on two grounds: Luminant had demonstrated a regular chain of

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title of conveyances and, alternatively, Luminant had adversely possessed the
land. On appeal, the PakeyBey parties attack the district court’s application
of the presumed grant doctrine to complete Luminant’s chain of title. But it
is not necessary for us to address this issue because, regardless, Luminant has
demonstrated it adversely possessed the land. We therefore affirm the
district court’s summary judgment on that ground.
“In order to establish adverse possession as a matter of law, the
claimant must show by undisputed evidence his actual peaceable and adverse
possession of the property . . . .” Bywaters v. Gannon, 686 S.W.2d 593, 595
(Tex. 1985) (citations omitted). Peaceable possession is “possession of real
property that is continuous and is not interrupted by an adverse suit to
recover the property.” Tex. Civ. Prac. & Rem. Code § 16.021(3).
Adverse possession is “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.” Id. § 16.021(1). Generally, a
party claiming title by adverse possession under Texas law must show
(1) actual and (2) visible possession that is (3) under a claim of right,
(4) hostile to another’s claim to the property, and (5) peaceable for the
applicable limitations period. See Nat. Gas Pipeline Co. of Am. v. Pool, 124
S.W.3d 188, 193 (Tex. 2003).
More specifically, this case centers on an alleged tenancy in common,
and a tenant in common must clear a heightened threshold for proving that
its possession is hostile to any other claimant. To do so, a cotenant must
repudiate its cotenant’s title. Todd v. Bruner, 365 S.W.2d 155, 156 (Tex. 1963)
(citations omitted). This is because cotenants’ possession of common land
is “presumed to be in right of the common title. [A cotenant] will not be
permitted to claim the protection of the statute of limitations unless it clearly
appears that he has repudiated the title of his cotenant and is holding
adversely to it.” Id. (citations omitted). To be effective, repudiation must

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provide notice to the cotenant, id. at 159, though notice can be actual or
constructive, Moore v. Knight, 94 S.W.2d 1137, 1139 (Tex. Comm’n App.
1936). Conveying the common estate to a third party who records a deed and
takes possession of the property provides constructive notice. Parr v.
Ratisseau, 236 S.W.2d 503, 506 (Tex. Civ. App. 1951) (citations omitted).
“This effects an ouster of the cotenants and after the expiration of the
statutory period will bar the right of the cotenants to recover.” Id. (citations
omitted).
The applicable limitations period differs based on the possessor’s
conduct. If a possessor is claiming under “title or color of title[,]” it must
possess the land for three years. Tex. Civ. Prac. & Rem. Code Ann.
§ 16.024. If a possessor “cultivates, uses, or enjoys the property” and pays
“applicable taxes on the property” while claiming “the property under a duly
registered deed[,]” the period is five years. Id. § 16.025. If a possessor
merely “cultivates, uses, or enjoys the property[,]” the period is ten years.
Id. § 16.026. For calculating time, Texas allows successors in interest to tack
their time in possession to their predecessors’ time provided there is privity.
Id. § 16.023.
This appeal ultimately turns on whether Luminant’s possession of the
land has been hostile to any claim of its alleged cotenants. The record is
uncontested that Luminant had either been mining or managing timber on
the disputed tracts for at least ten years prior to the 2019 deed recorded by
the PakeyBey parties or Luminant’s filing of this suit on July 26, 2019.
Further, the record shows that since November 15, 1994, Luminant or its
predecessors have held the tracts at issue under recorded deeds. See id. The
undisputed facts thus establish the first, second, third, and fifth elements of
Luminant’s adverse possession claim. See id. § 16.026.

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But the PakeyBey parties contend that Luminant failed to
demonstrate hostile possession vis-à-vis its cotenants. They assert that the
record is devoid of evidence of actual notice of repudiation of the common
title. They further contend that Luminant cannot show constructive notice
of repudiation, arguing that constructive notice and ouster require more than
Luminant’s demonstrated possession of the land and the absence of a claim
against the land by Walling’s heirs. Their argument rests on a correct reading
of the law, up to a point. See Hardaway v. Nixon, 544 S.W.3d 402, 410 (Tex.
App. 2017). But Luminant’s possession and Luminant’s recorded deeds are
sufficient to give constructive notice of hostility to cotenants and to effect an
ouster. Parr, 236 S.W.2d at 506 (citations omitted). The PakeyBey parties’
argument is therefore unavailing.
Every recorded grant in Luminant’s chain of title after the original
patent to Chism and Walling as tenants in common purported to convey the
whole estate. The recordation of these deeds long ago provided constructive
notice to any cotenants of a hostile possession sufficient to accomplish
ouster. Parr, 236 S.W.2d at 506 (citations omitted). Again, the PakeyBey
parties do not contest any of the facts related to recordation of these deeds.
Therefore, there is no genuine dispute of fact regarding Luminant’s
constructive notice and ouster of any alleged cotenant. Without that, there
is no genuine issue of material fact regarding Luminant’s actual, visible,
hostile, and peaceable possession of the disputed tracts under a claim of right
for at least ten years. Because every element of peaceable and adverse
possession is established by undisputed evidence, Luminant has established
its adverse possession of the property as a matter of law. Bywaters, 686
S.W.2d at 595 (citations omitted). Thus, the district court properly granted
summary judgment to Luminant on this ground.

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IV.
Luminant demonstrated, by uncontested evidence, its adverse and
peaceable possession of the tracts of land also claimed by the PakeyBey
parties for at least ten years, satisfying Texas’s adverse possession statutes.
Luminant is therefore vested with a fee simple interest in the disputed tracts,
and summary judgment in Luminant’s favor was proper.
AFFIRMED.

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