
    Kathleen MOORE, Appellant, v. G.Z. STONE and W.D. Wolf, Appellees.
    No. 10-06-00382-CV.
    Court of Appeals of Texas, Waco.
    April 2, 2008.
    Rehearing Overruled May 6, 2008.
    
      Bill Youngkin, Bryan, for appellant.
    Bobby Reed, Reed & Reed LLP, Groes-beck, Greg White, Ñaman, Howell, Smith & Lee LLP, Waco, for appellees.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

TOM GRAY, Chief Justice.

This appeal involves the determination by a jury that G.Z. Stone and W.D. Wolf adversely possessed approximately 16 acres and 8 acres, respectively, of land claimed under title by Kathleen Moore. Various theories of adverse possession were submitted to the jury: possession by both Stone and Wolf for the statutory periods of 8, 5, 10, and 25 years, and possession by acquiescence. The judgment was written generally and awarded the disputed land to Stone and Wolf. Because there was no evidence to prove adverse possession for the statutory period of 10 years, and because the trial court erred in submitting questions to the jury regarding adverse possession for the statutory periods of 3, 5, and 25 years, and acquiescence because there was no evidence in support of those questions, the trial court’s judgment is reversed and a judgment is rendered that Stone and Wolf take nothing.

Background

C.C. Stone, the predecessor in interest to G.Z. Stone and W.D. Wolf, and Harold Seamans, the predecessor in interest to Kathleen Moore, each owned separate tracts of land that shared a common boundary, Elm Creek. In the 1960’s, C.C. Stone and Seamans, built a fence beyond Elm Creek and on Seamans’s land. No testimony was produced as to the purpose of the fence or why it was built at that location. This fence encroached on approximately 19 acres of Seamans’s land.

W.D. Wolf bought some of C.C. Stone’s land in 1974. G.Z. Stone inherited some of his father’s land in 1982. Both grazed the 19 acres owned by Seamans. Moore and her sons purchased Seamans’s land in 1999. Her sons deeded their interest to Moore in 2000. In 2003, Moore tore down the fence which prompted a trespass to title action filed by Stone and Wolf. Stone claimed approximately 16 acres of the disputed 19 acres as his own while Wolf claimed approximately 3 acres of the disputed 19 acres as his own.

Because the judgment does not specify upon which theory it relies for awarding Stone and Wolf possession of the disputed land, we group and discuss Moore’s issues out of order so that we may more easily come to a conclusion without too much redundancy.

No Evidence — Ten Year Limitations Period

In her second issue, Moore contends that the use of the land by Stone and Wolf was insufficient to establish adverse possession under the 10 year limitations period. Specifically, she argues that there was no evidence to support the jury’s finding of adverse possession under the 10 year limitations period because Stone and Wolf did not establish actual possession of the disputed property which was adverse or hostile to the claim by Moore.

Standard of Review

In reviewing a finding for legal sufficiency, we credit evidence that supports the finding if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. See Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 793 (Tex.2006); City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). By filing a motion for judgment notwithstanding the verdict on the grounds that there was no evidence of adverse possession under the 10 year statute, Moore preserved her no-evidence complaint. See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220 (Tex.1992).

Adverse Possession — generally

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” throughout the statutory period. Tex. Civ. PRAC. & Rem.Code Ann. § 16.021(1) (Vernon 2002). The statute requires that such possession be “inconsistent with” and “hostile to” the claims of all others. Minh Thu Tran v. Macha, 218 S.W.3d 913, 914 (Tex.2006). One seeking to establish title to land by virtue of the statute of limitations has the burden of proving every fact essential to that claim by a preponderance of the evidence. Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex.1990). And inferences are never indulged in the adverse claimant’s favor. Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex.1985).

The 10 year statute of limitations provides:

(a) A person must bring suit not later than 10 years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property.

Tex. Civ. Prac. & Rem.Code Ann. § 16.026(a) (Vernon 2002). Moore argues that there was no evidence that Stone or Wolf cultivated, used, or enjoyed the disputed land in peaceable and adverse possession.

Adverse Possession — use of land

Wolf acquired title to his property in 1974. Stone acquired title to his property in 1982. The fence, which included the disputed property with Stone’s and Wolfs property, was built in the 1960’s by Stone’s father and Moore’s father. There was no testimony as to its purpose. From Wolfs testimony, it appears that he broke ground on his claimed portion of the disputed property, that being about 3 acres, within the first two years after he purchased his property to plant “oats or something.” Thereafter, he used the disputed land for cattle grazing. After acquiring title to his land in 1982, Stone only used the disputed land for grazing and cutting hay.

The adverse claimant who relies upon grazing only as evidence of his adverse use and enjoyment must show as part of his case that the land in dispute was designedly enclosed. McDonnold v. Weinacht, 465 S.W.2d 136, 142 (Tex.1971). When the disputed tract of land has been enclosed with other land, especially when such other land is held by the possessor under deed, the enclosure is casual or incidental, and the occasional grazing of the disputed tract by cattle will not amount to such adverse and hostile possession and use as will support the statute of limitations. Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781, 785 (1954). If the fence existed before the claimant took possession of the land, and the claimant fails to demonstrate the purpose for which it was erected, then the fence is a “casual fence.” Rhodes v. Cahill, 802 S.W.2d 643, 646 (Tex.1990). Repairing or maintaining a casual fence, even for the express purpose of keeping the claimant’s animals within the enclosed area, generally does not change a casual fence into a designed enclosure. Id.; McDonnold, 465 S.W.2d at 142-43.

Further, the general rule is that cutting and gathering a natural crop, such as hay, does not constitute adverse possession. McDonnold v. Weinacht, 465 S.W.2d 136, 144 (Tex.1971). And sporadic cultivation also does not constitute adverse possession. See Stevens v. Pedregon, 106 Tex. 576, 579,173 S.W. 210 (Tex.1915); Dunn v. Taylor, 113 S.W. 265, 268 (Tex.1908).

Because there was no testimony about the purpose of the fence built and because the fence existed before Stone or Wolf took possession of the property, the fence was a casual fence. Further, Stone and Wolf only used the land for grazing and cutting hay which does not constitute adverse possession. And, the fact that Wolf broke the ground once to plant oats is, at best, sporadic cultivation and does not constitute adverse possession. According to case-law, Stone’s and Wolfs testimony is no evidence of adverse possession.

There being no evidence to establish adverse possession under the 10 year limitations period, Moore’s second issue is sustained. The trial court’s judgment could not be based on possession under the 10 year limitations period.

Error in Submitting Questions

In her first issue, Moore argues that the trial court erred in submitting questions regarding the 3, 5, and 25 year limitations periods as to both Stone and Wolf because neither Stone nor Wolf had color of title or a deed to the disputed property. Moore objected to the submission of these questions, but the trial court overruled her objections and submitted them as Question Nos. 1, 2, 3, 6, 7, and 8. The jury answered “yes” to each question.

In her third issue, Moore contends that Stone and Wolf did not establish the elements of acquiescence. Specifically, she contends the trial court erred in submitting, over Moore’s objection, the question of acquiescence to the jury because there was no evidence of acquiescence and the doctrine of acquiescence does not apply to the facts of this case.

The trial court submitted Question 12 to the jury asking whether Stone and Sea-mans and their successors in title acquiesced in a boundary line, line B, between the properties. Line B was the fence line that Stone and Wolf, at one time, argued was the true boundary line between their properties and Moore’s property. Moore objected to the submission of this question on the grounds that there was no evidence, no pleading, and no law to support the submission of the question. The objection was overruled. The jury answered “yes” to this question.

Standard of Review

We use an abuse of discretion standard to review the trial court’s submission of instructions and jury questions. Texas Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex.1990); Broughton Assocs. Joint Venture v. Boudreaux, 70 S.W.3d 324, 327 (Tex.App.-Waco 2002, no pet.). The trial court’s discretion is subject only to the requirement that the question must control the disposition of the case, be raised by the pleadings and the evidence, and properly submit the disputed issues for the jury’s determination. See Harris County v. Smith, 96 S.W.3d 230, 236 (Tex.2002); Broughton Assocs., 70 S.W.3d at 327; see Tex.R. Civ. P. 278.

Statutory Limitations Periods

The 3 year limitations period statute for adverse possession provides that a person must bring suit to recover real property held by another in peaceable and adverse possession under title or color of title not later than three years after the day the cause of action accrues. Tex. Civ. Prao. & Rem.Code Ann. § 16.024 (Vernon 2002). Moore contends that Stone and Wolf did not hold the land under title or color of title. Neither term “title” nor “color of title” were defined for the jury. The statute, however, defines title as “a regular chain of transfers of real property from or under the sovereignty of the soil.” Id. § 16.021(4) (Vernon 2002). Color of title is defined by statute, for the purposes of this appeal, as a consecutive chain of transfers to the person in possession that is not regular because of a muniment that is not properly recorded or is only in writing or because of a similar defect that does not want of intrinsic fairness or honesty. Id. § 16.021(2)(A) (Vernon 2002).

Additionally, the statute for the 5 year limitations period for adverse possession provides:

(a) A person must bring suit not later than five years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who:
(1) cultivates, uses, or enjoys the property;
(2) pays applicable taxes on the property; and
(3) claims the property under a duly registered deed.

Tex. Civ. Prac. & Rem.Code Ann. § 16.025 (Vernon 2002). Moore argues that Stone and Wolf cannot claim the property under a duly registered deed.

Finally, the 25-year-hmitations-period statute for adverse possession, under which the jury was charged, provides in relevant part:

(a) A person ... may not maintain an action for the recovery of real property held for 25 years before the commencement of the action in peaceable and adverse possession by another who holds the property in good faith and under a deed or other instrument purporting to convey the property that is recorded in the deed records of the county where any part of the real property is located.

Tex. Civ. PkaC. & Rem.Code Ann. § 16.028(a) (Vernon 2002). Moore argues that Stone and Wolf do not hold the property under a deed or other instrument.

Applicable Facts

Moore, Stone, and Wolf introduced their deeds into evidence. Each deed referenced Elm Creek as a common boundary. At the beginning of trial, Stone and Wolf argued that the fence line that had been built by Stone’s father and Moore’s father was the “Elm Creek” boundary referenced in the deeds. Stone and Wolf designated the fence line as “line B.” Moore, however, argued that from her property, the actual “Elm Creek” boundary was beyond the fence line. She designated her “Elm Creek” boundary as “line A.”

Early during the second day of trial, after their surveyor testified regarding which line was Elm Creek, Stone and Wolf informed the court that they were “waiving their assertion with reference to Elm Creek.” Out of the presence of the jury, Stone and Wolf explained to the court that it was their intention to waive their position that line B, the fence fine, was Elm Creek. The parties disagreed as to the significance of that intention. Nevertheless, with Stone’s and Wolfs agreement, the trial court announced to the jury that “the plaintiffs have stipulated that the course of Little Elm or Elm or the creek is line A as asserted by the defendant (Moore).”

Application of Law to Facts

In her first issue, Moore argues that because Stone and Wolf stipulated that Elm Creek ran on her asserted boundary, they did not prove color of title, title, or a deed as required by the 3, 5, and 25 year limitations statutes because the disputed property was not contained within the legal description in their deeds. Stone and Wolf argue that it is not necessary for their deeds to include the disputed property. We agree with Moore.

The Texas Supreme Court has said, “It is well settled that when one enters into possession of land under a deed, his possession is referable to the deed, and it is presumed to be in conformity with it, and is confined to the limits thereof.” Harmon v. Overton Ref. Co., 130 Tex. 365, 109 S.W.2d 457, 460, rev’d order of rendition on rehr’g in 130 Tex. 365, 110 S.W.2d 555 (1937). To claim adjoining land outside the limits of the described boundaries, the possessor must have actual possession of such additional land of such a character as of itself will give notice of an actual adverse possession. Southern Pine Lumber Co. v. Hart, 161 Tex. 357, 340 S.W.2d 775, 781 n. 2 (1960); Orsborn v. Deep Rock Oil Co., 153 Tex. 281, 267 S.W.2d 781 (1954).

Thus, to have title or color of title, the deeds of Stone and Wolf had to include the disputed property within its descriptions. By stipulating that the course of Elm Creek was the line asserted by Moore, Stone and Wolf necessarily admitted that their deeds did not include the disputed property. There was no evidence that Stone and Wolf had title or color of title that would allow the submission of questions to the jury regarding the 3 year statute of limitations on adverse possession. Therefore, the trial court abused its discretion in submitting questions 1 and 6.

Likewise, for purposes of the 5 and 25 year limitations statutes that were submitted to the jury, there is no evidence that Stone and Wolf can claim the disputed property under a duly registered deed or a deed or other instrument purporting to convey the property. The trial court thus abused its discretion in submitting questions 2, 3, 7, and 8 to the jury.

Because the trial court abused its discretion in submitting questions 1, 2, 3, 6, 7, and 8, Moore’s first issue is sustained.

Acquiescence

When a boundary line between adjoining owners is uncertain or controverted, that boundary line may be established by implied agreement, and if the implied agreement is disputed, acquiescence may be shown by circumstantial evidence. Wall v. Carrell, 894 S.W.2d 788, 797-798 (Tex.App.-Tyler 1994, writ denied); Fulford v. Heath, 212 S.W.2d 649, 654 (Tex.Civ.App.-Amarillo 1948, writ ref d n.r.e.). The person claiming that the common boundary was established by acquiescence must show that he has title to the tract and that the owners of the property on both sides of the line agreed to, acquiesced in, or recognized such line as the boundary. Wall, 894 S.W.2d at 798; Davis v. Miers, 308 S.W.2d 277, 280 (Tex.Civ.App.-Eastland 1957, writ refd n.r.e.). In order to establish a boundary-by-aequi-escence, the agreement must stem from some initial uncertainty or dispute over the true boundary line. McAllister v. Samuels, 857 S.W.2d 768, 778 (Tex.App.-Houston [14th Dist.] 1993, no writ). “The exis tence of uncertainty, doubt or dispute is essential to the validity of such [an] agreement.” Gulf Oil Corp. v. Marathon Oil Co., 137 Tex. 59, 152 S.W.2d 711, 714 (Tex.1941).

Although acquiescence and recognition may be evidence of an agreement fixing a boundary and may support an inference or presumption that there has been such an agreement, this presumption will not apply when induced by mistake, or when the true boundary is established conclusively by undisputed evidence. Kirby Lumber Corp. v. Lindsey, 455 S.W.2d 733 (Tex.1970); Wall, 894 S.W.2d at 798. Further, when there is no doubt as to the true location of the boundary line, mere proof of acquiescence in an erroneous line will not support a finding that such other line is the true line. Id.

Applicable Facts and Application to Law

The only evidence potentially relating to the issue of acquiescence was testimony by Earl Lehrman, Stone’s surveyor, and Stone. Lehrman stated that Seamans showed him the property and did not say anything about the fence not being the boundary line between the properties. The surveyor testified that he thought the fence line was where the water course was back in the 1960’s. Stone testified that he saw the fence built and that Seamans said to him “I think it’ll last us the'rest of our life.” There was no testimony as to why the fence was built. The testimony does not establish that the owners of the property, Seamans and Stone’s father, were uncertain about the boundary between their properties and recognized the fence line as the boundary.

Even if this testimony could support a presumption that there could be an agreement fixing the boundary, the alleged presumption would not apply in this case because the boundary was conclusively established at trial. At the beginning of the trial, the boundary line between the property of Stone and Wolf and the property of Moore was in dispute. However, during trial, Stone and Wolf stipulated that the boundary line argued by Moore to be the proper boundary line, line A, was, in fact, the true boundary line, that being Elm Creek. Because of the stipulation, there was no longer a dispute over the boundary line. Thus there was no disputed issue for the jury’s determination. Accordingly, there was no evidence of acquiescence, and the trial court abused its discretion in submitting Question 12 to the jury.

Moore’s third issue is sustained.

Is the Error Reversible?

Because we hold that the trial court’s submission of questions 1, 2, 3, 6, 7, 8, and 12 were improper, we now determine whether the error is reversible. Error in the charge is reversible if, in light of the entire record, it probably caused the rendition of an improper judgment. Tex. R.App. P. 44.1(a)(1); Reinhart v. Young, 906 S.W.2d 471, 473 (Tex.1995); Broughton Assocs. Joint Venture v. Boudreaux, 70 S.W.3d 324, 327-328 (Tex.App.-Waco 2002, no pet.).

We have determined that there was no evidence of adverse possession under the 10 year limitations period as to Stone and Wolf. We have also determined that there was no evidence which would support the submission of questions regarding the 3, 5, and 25 year limitations periods as to Stone and Wolf, and the question of acquiescence. There is no other question answered by the jury which would support a judgment in favor of Stone and Wolf. Therefore, the error in the charge caused the rendition of an improper judgment.

Because of our disposition of Moore’s first three issues, we need not discuss her fourth and fifth issues.

Conclusion

Accordingly, we reverse the trial court’s judgment and render judgment that Stone and Wolf take nothing on their claims. 
      
      . C.C. Stone was G.Z. Stone's father.
     
      
      . Seamans was Moore’s father.
     
      
      . Any "cultivation” by Stone that may have occurred on the disputed property occurred long before Stone acquired title to his property.
     
      
      . There are two 25 year limitations period statutes.
     
      
      . Lehrman purchased Seaman's property. Moore and her sons purchased the property from Lehrman. Moore’s sons then deeded their interest in the property to Moore.
     