340 Gulley v. Davis

Richard F. Brown

 
The following is not a legal opinion. You should consult your attorney if the case may be of significance to you.
 
Gulley v. Davis, 321 S.W.3d 213 (Tex. App.—Houston [1st Dist.] 2010, pet. denied), held that a party in joint possession and claiming title adversely to the record owner may only claim the area fenced or enclosed. In 1872, Davis leased a League to Moore. In 1892, Moore’s son William began living on a portion of the League that included the 52 acres involved in this case. In 1898, Davis died, leaving the League to his wife, Camilla. In 1904, Camilla conveyed the surface of the League, reserving the minerals. Later in 1904, Moore died. Successors in interest to William (“William”) claimed title to the minerals in the 52-acre tract by adverse possession against the successors in interest to Camilla (“Camilla”).
 
Because William moved onto the land before Camilla severed the mineral estate, if William’s possession was adverse, the adverse possession would include both the surface and the minerals. However, Davis leased the entire League to Moore beginning in 1872, and Moore continued in possession as Moore’s tenant until sometime in 1904, after Camilla severed the minerals.
 

An owner who is in actual possession of a portion of his land is considered to have possession of all of his land; this is referred to as ‘constructive possession.’ .. . When the owner is in constructive possession of his land, a person claiming adverse possession who is in joint possession with the owner is limited to claiming land actually enclosed.

 
Davis was in constructive possession of the entire League through his lease with Moore, and, therefore, William was in joint possession with the owner, Davis, as to the 52-acre tract. “Joint use of the property with the owner does not satisfy the statute because ‘possession must be of such character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant.’” There was no evidence that the 52-acre tract was enclosed, and Camilla was therefore entitled to judgment as a matter of law.
 
The lapse of time clearly created problems of proof in this case, but it illustrates the extra burden of proof which must be carried by the party in joint possession and claiming adversely to the record owner.