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Adverse possession: Casual Fence vs Designed Enclosure

3,204 Views | 1 Replies | Last: 2 yr ago by Animal Eight 84
eric76
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AG
There are a couple of articles on adverse possession cases in Texas that may be worth reading. They both involve fences not built on the property line.

The first article from 2018 discusses the difference between a "casual fence" and a "designed enclosure" as well as other issues.

From https://agrilife.org/texasaglaw/2018/06/18/does-grazing-cattle-for-years-allow-claim-of-adverse-possession/

Quote:

A recent case from the Waco Court of Appeals deals with a question about which I am often asked: If a fence is built off the property line but has been there for decades and the non-title holding owner grazes the property as his own, does the property ownership change?

...

For decades, Mr. Weber used the 20 acres as pasture for grazing goats and cattle. When the Parkers began to work on the 20 acres, Mr. Weber sued claiming ownership to the 20 acres based upon adverse possession.

At trial, the court awarded Mr. Weber title to the property, finding that he satisfied the elements of proving adverse possession under Texas law. The Parkers filed this appeal.

...

The Waco Court of Appeals reversed the trial court, finding that Mr. Weber failed to prove adverse possession. Thus, the 20 acres remains the property of the Parkers.

...

First, the court held that the fence on the southern edge of the 20 acres was a causal fence. Adverse possession recognizes two kinds of fences: casual fences and designed enclosures. A person who argues that they grazed their cattle within the fenced property must prove that the fencing was designated enclosure in order to succeed on an adverse possession claim.

...

f the disputed tract of land has been enclosed with other land, especially when the other land is owned by the claimant, the enclosure is casual. Further, if a fence existed before the party seeking adverse possession took possession of the land, and the party fails to prove the purpose for which the fence was built, it is a casual fence.

...

if you own land and the fences are not on the property line, it is important to be aware of these rules and consider taking action to avoid an adverse possession claim. This may involve putting something in the deed records either stating that despite the fence, the landowner continues to use the property or granting permission to the claimant to use the land, as adverse possession cannot be maintained if permission exists.

This article was linked from a new article about a case of adverse possession in Menard County.

From https://agrilife.org/texasaglaw/2022/09/06/court-addresses-adverse-possession-in-dispute-between-neighbors/

Quote:

In 1952, the GLO determined the land was "excess acreage" that should have been part of the Kothmann land. The GLO deeded the land to the Kothmanns. However, the disputed portion has been continuously enclosed under fencing surrounding the Meinzes' property since the 1930s. Thus, while the deed showed the disputed land owned by the Kothmanns, it was under fence of the Meinzes family.

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"We need not decide whether the fence is a casual fence or a designed enclosure, because the casual fence doctrine applies only when the sole claim of a right to ownership is through grazing." If there is another form of notice, such as a verbal assertion made by the adverse party of its claim to the property, the casual fence doctrine does not apply. Here, Menzies offered evidence that their predecessors verbally asserted their claims directly to the Kothmann predecessors and the Kothmann predecessors took no action to interrupt the Menzies' possession of the land. Both parties agree that in 1960 the Menzies family claimed ownership to the land both during the confrontation at the fence building and based upon the filing of adverse possession lawsuits. It was clear that they made a hostile claim of right to the land. Because this claim did not arise solely from the grazing of the land, the casual fence doctrine does not apply.

...

The key takeaway from this case is that proving a designed enclosure is required only when grazing is the sole claim of right to ownership. In a situation like this, where there were verbal assertions of ownership as well, the designed enclosure issue is irrelevant.

When I was in high school, we once removed a fence on some land we farmed and plowed up the dirt road on the west side of the fence. It turned out that the dirt road was owned by the owner of the land we farmed. When we took the road back, it really caused issues for the owner of the land adjacent to this because he had water hydrants just to the west of the dirt road. When irrigating, the dirt road let him drive down between the fence and the land he was irrigating. It turned out that the water hydrants were next to the property line and the farmer could no longer use that dirt road when irrigating. He built a new dirt road alongside the fence line, but had to run a short pipe across the dirty road, then use an elbow and string the pipe out from there. He obviously wasn't very happy about the situation.
Animal Eight 84
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AG
One of my property lines is along a straight league line established in the days of Austin's Colony.

The fence however had a right turn creating a 2 acre rectangle narrow " missing" space.

Turns out 85 years ago there once was a common shallow drainage ditch on the property line and both property owners had a fence along the ditch. Then one guy took down his fence and started using the 2 acres on my side.

The fence was badly overgrown, impossible to maintain, needed bulldozing and rebuilding. I told him new fence was going on the property line. Neighbor made bold claims about declaring adverse possession so we had a sit down talk.

I knew He was a tightwad and wasn't going to give a lawyer a dime. Plus he had siblings involved in shared ownership of the land that I went to church with so he backed down.

However they would not share any of the costs in the fence rebuild.
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