When two families who have owned land for generations ended up in a dispute over a portion of property, the San Antonio Court of Appeals found itself in the middle of an adverse possession case pitting neighbor against neighbor in Kothmann v. Menzies.  [Read opinion here.]

Background

This case involves a tract of land in Menard County referred to as Section 61.  The Kody Kothmann 1992 Irrevocable Trust owns the land, which formerly belonged to Kody Kothmann’s parents, and prior to that, to his maternal grandfather.  The adjacent property, Section 62, is owned by the Perry P Menzies and Mary Louise Menzies Living Trust and has been in their family for generations.

The disputed portion of land sits on the eastern edge of Section 61 (“the Kothmann land”) and the western edge of Section 62 (“the Meinzes” land). The disputed portion of land once belonged to the Texas General Land Office.  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.

A dispute arose in 1960 when the Kothmanns sought to remove the dividing fence between the two properties and build a new fence on the true property line with the disputed portion on their side.  Alex Meinzes confronted them and told them to get off the property and cease building the new fence. The Kothmanns testified that Alex threatened physical violence, which they took seriously, and they stopped construction of the fence or modify the enclosure of the disputed property.  Shortly after this confrontation,  the Meinzes family filed at least two lawsuits against the Kothmann family to quiet title to the disputed portion claiming ownership by adverse possession.  These lawsuits were dismissed for want of prosecution in 1979.

In 1992, Kody Kothmann’s father conveyed the land to Kody, and Kody put the land into his trust.  Decades later in 2015, Kody’s father entered into a written agreement with Steve Menzies to split the cost of a replacement fence between the two properties, which stated that the fence would be built “in its current location and along the same line as it presently exists.”

In 2017, Kody signed an affidavit that this fence was constructed without his permission, and he “considered it to be a hostile, nonpeaceful, act of trespass with the sole intention to gain ‘adverse possession’ of" the disputed property.

In 2020, Menzies filed this lawsuit claiming they acquired title either by adverse possession or acquiescence. The court granted summary judgment to the Menzies on the adverse possession claim.  Kothmann appealed.

Applicable Law

The party seeking an award of land by adverse possession must prove “actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and hostile to the claim of another person.”  Additionally, the claim must be of such character as to unmistakably indicate an assertion of a claim of exclusive ownership of the occupant.  There are a number of different statutory periods for adverse possession claims, but here, Menzies relied upon the 10-year limitations period.  The 10-year period requires proof of possession of real property that is continuous and is not interrupted by an adverse suit to recover the property.

Put another way, Menzies must prove (1) he adversely possessed the property under “claim of right” (meaning with intent to claim ownership); (2) peaceable (meaning continuous possession not interrupted by suit to recover the property); (3) open and notorious “use, cultivation or enjoyment” of the property such that an owner would be put on notice; and (4) continuous throughout the 10-year limitations period.

Court of Appeals’ Opinion 

The San Antonio Court of Appeals affirmed. [Read opinion here.]

Casual Fence Doctrine

The Menzies claim their family has continually ranched the land in dispute since 1973 and have always claimed those acres as their land. They’ve raised livestock on the entire pasture under their fence. The Kothmanns offered no evidence to the contrary.

Kothmann argues he was entitled to summary judgment, rather than Menzies, because Menzies did not conclusively show that the fence enclosing the property was a “designed enclosure” rather than a “casual fence.” [To read more about the concept of designed enclosures versus casual fences, click here.]  Menzies claims that the status of the fence is not relevant because the Kothmanns have been on notice of the Menzies’ claim to the disputed property for more than 10 years.   The court held this issue was not relevant.

“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.

1960 Lawsuits 

Next, Kothmann argues that the 1960 lawsuits negate, rather than prove, the Menzies’ adverse possession claims.  Kothmann argues that because the lawsuits ended in dismissal for want of prosecution, they show abandonment of the adverse possession claims.  Conversely, Menzies argues that because the dismissal for want of prosecution is not a determination on the merits, it simply returns the parties to their position prior to the lawsuit.  The court agreed with Meinzies. Further, the fact that the lawsuits were dismissed in 1960 does not affect the fact that Meinzes claimed, possessed, and used the property for more than 10 years prior to the 2020 filing of this lawsuit.

Peaceable Possession

Lastly, Kothmann argued that the Meinzes’ possession of the land was not “peaceable” as required under the law of adverse possession because they threatened violence against the Kothmann family.  Again, the court disagreed.  “The legislature’s definition of ‘peaceable possession’ requires only that a lawsuit not be brought against the adverse possessors.  There is no mention of force or threats in the statute.”  Here, it is undisputed that the Kothmann’s never brought suit against the Menzies family to recover the property.

Key Takeaways 

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.

Second, this case is a good reminder that if there is a dispute over ownership of land, it is critical for the landowner who has the deeded ownership to take action quickly, rather than waiting for decades.

Third, keep in mind that while obtaining title to land by adverse possession as the Menzies did here is possible, it is rare and very difficult to do.  The mere fact that a fence is built off of the property line does not mean a successful adverse possession claim will succeed.  To hear more about adverse possession in Texas, click here for a podcast episode with Amber Miller.

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