Face Challenges Confidently

285 Garner v. Griffin

Monday, August 31st, 2015

Richard F. Brown

The following is not a legal opinion. You should consult your attorney if the case may be of significance to you.
Garner v. Griffin, No. 13-06-621-CV, 2009 WL 200772  (Tex.  App.—Corpus  Christi Jan. 29, 2009, no pet.) (mem. op.), holds that a co-tenant’s execution of oil and gas leases (which did not purport to lease more than the co-tenant’s undivided interest in the property) could not provide sufficient notice of an attempt to mature a limitation title against the other co-tenants. Record title to a 62.5 acre tract of land located in Gonzales County, Texas, was owned by multiple co-tenants. Garner’s father acquired an undivided three-fifths interest in the property through three deeds. Each of the three deeds conveyed to him a one-fifth interest in the property. When Garner’s father died, Garner inherited her father’s three-fifths interest in the property. Garner claimed to have obtained the other two-fifths interest through adverse possession. “Adverse possession is 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.’” “A co-tenant may not adversely possess against another co-tenant unless it clearly appears he has repudiated the title of his cotenant and is holding [the property] adversely to it. Notice of repudiation must be clear, unequivocal, and unmistakable.” In 1965 and 1980, Garner’s father executed oil and gas leases covering the property that were subsequently recorded. Among other facts, Garner argued that the recording of the oil and gas leases by her father provided sufficient notice to the other co-tenants of the repudiation of the co-tenancy.
The court disagreed. The two oil and gas leases each referred to the 62.5 acre tract as “described in a deed dated March 21, 1956,” which was one of the deeds conveying an undivided one-fifth interest into Garner’s father. At the time that the leases were executed, Garner’s father owned of record an undivided 3/5 interest in the 62.5 acre tract. However, only an undivided one- fifth interest in the 62.5 acre tract was conveyed to Garner’s father by the specific 1956 conveyance referenced in the lease. Accordingly, neither lease could have provided sufficient notice of an attempt to mature a limitation title, because neither lease purported to lease more than was owned (one-fifth interest versus three-fifths interest owned).
The opinion does not provide any additional facts related to the oil and gas leases. However, most form leases of that vintage would purportedly lease “all” of lessor’s interest in “the following described lands,” followed by a blank. In an era of typewriters and carbon paper, complicated legal descriptions presented a challenge which could be avoided by simply referring to the legal description in a prior document. If those facts exist in this case, the opinion fails to address whether the tract “described” in the deed means: (i) the land described by metes and bounds description, or (ii) an undivided one-fifth interest in the land described by metes and bounds description. There are other cases holding that the recording of a lease by a co-tenant is, or may be, notice of adverse possession to the other co-tenant.
In any event, this case illustrates the difficulties in successfully asserting a claim for adverse  possession  against  a  co-tenant.    This  case  also  serves  as  a  reminder  that  adverse possession cases are fact-specific, and the resolution of such a case may turn on only one or two of the elements of adverse possession.