David K. Rice and Wife, Joy M. Rice v. Betty Piper Kuhn ( 2005 )

MEMORANDUM OPINION  

No. 04-03-00088-CV

David K. RICE and Joy M. Rice,

Appellants

v.

Betty Piper KUHN,

Appellee

From the 216th Judicial District Court, Kendall County, Texas

Trial Court No. 00-259

Honorable John M. Delaney, Judge Presiding

Opinion by:    Alma L. López, Chief Justice

Sitting:            Alma L. López, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed:   February 23, 2005

AFFIRMED

            The parties to this appeal own land in the platted town of Kendalia, Texas. The plat dedicates a road between the parties’ land referred to as Martin St. David K. Rice and Joy M. Rice appeal the trial court’s judgment granting Betty Piper Kuhn title and possession of the section of Martin St. located between the parties’ land, asserting that no right or title to the dedicated road could be acquired by adverse possession and that the evidence is legally and factually insufficient to establish that Kuhn acquired title by adverse possession, estoppel or parol gift. We affirm the trial court’s judgment.

Background

            In 1883, a plat of the town of Kendalia was filed in the deed records of Kendall County, Texas. Kuhn’s grandmother, Anna Auberle, purchased the six eastern lots of Block 13 in 1951. The strip of land between these lots and Block 12, which was subsequently purchased by the Rices in 1983, is a portion of land that was dedicated as a road on the plat and is referred to as Martin St.

            At the time Auberle purchased the lots in Block 13, Martin St. was fenced with a gate or gap gate on the north. During the time Auberle and Kuhn’s mother, Katherine Piper, owned the property, they used a portion of Martin St. as a driveway. In addition, they placed a second fence across Martin St. further to the south to contain livestock. They also maintained a woodpile and slaughtered and processed chickens on the strip of land. Finally, trenches were dug on Martin St. where the lateral fields for Piper’s septic tank were located.

            In 1994, the Rices rebuilt the fence between their land and Martin St. In the process, the Rices fenced a portion of land that formed an intersection between two platted streets at the south end of Blocks 12 and 13. In response to objections raised by Piper, Mr. Rice informed Kuhn that he had exchanged the land in the intersection for a wedge-shaped strip of Martin St. that formerly was within his old fence but was outside the new fence. Surveys that were introduced into evidence showed that the wedge-shaped strip contained approximately 0.0296 acres of land, while the remaining east one-half of Martin St. immediately adjacent to the Rices’ fence contained 0.1777 acres of land.

            After a bench trial, the trial court entered a judgment granting Kuhn title and access to the entire strip of land between the parties’ properties.

Standard of Review

            A trial court’s findings of fact carry the same force and dignity as a jury’s verdict. M.D. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). Thus, we review the trial court’s fact findings the same way we review the legal and factual sufficiency of the evidence supporting a jury’s verdict. Id. In analyzing the legal sufficiency of the evidence supporting a finding of fact under a “no evidence” point of error, we must examine the record for evidence and inferences that support the challenged finding, while disregarding all contrary evidence and inferences. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). “If there is more than a scintilla of evidence to support the findings, the ‘no evidence’ challenge cannot be sustained.” Id. When analyzing the factual sufficiency of the evidence, we consider all of the evidence in the record both for and against the finding. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We will find the evidence factually insufficient if we conclude the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id.

            We review the trial court’s conclusions of law de novo. McLaughlin, Inc. v. Northstar Drilling Technologies, Inc., 138 S.W.3d 24, 27 (Tex. App.—San Antonio 2004, no pet.). A conclusion of law will be reversed if it is erroneous as a matter of law. Id. Erroneous conclusions of law need not prompt a reversal if the judgment can be sustained on any legal theory supported by the evidence. Id.

Abandonment and Adverse Possession

            Martin St. was dedicated as a public street on the plat filed in the deed records of Kendall County, Texas. Numerous deeds that were entered into evidence referred to the recorded plat, and the instruments by which Kuhn and the Rices acquired their title also reference the recorded plat; therefore, the dedication of the road was effective and irrevocable. Adams v. Rowles, 228 S.W.2d 849, 851-52 (Tex. 1950). For purposes of this opinion, we will assume, without deciding, that Kuhn could not acquire any right or title to Martin St. by adverse possession unless it was abandoned. See Lindner v. Hill, 691 S.W.2d 590, 592 (Tex. 1985); Ellis v. Jansing, 620 S.W.2d 569, 570 (Tex. 1981).

            There are two types of abandonment: statutory and common law. Rutledge v. Staner, 9 S.W.3d 469, 471 (Tex. App.—Tyler 1999, pet. denied). The Rices assert that Kuhn never pled statutory abandonment and never relied on that theory at trial. This assertion is unavailing. An erroneous conclusion of law need not prompt a reversal if the judgment can be sustained on any legal theory supported by the evidence. McLaughlin, Inc., 138 S.W.3d at 27. Accordingly, even if the evidence fails to establish common law abandonment, we must affirm the trial court’s judgment if statutory abandonment is supported by the evidence. See id.

            Section 251.057(a) of the Texas Transportation Code provides that a county road is “abandoned when its use has become so infrequent that one or more adjoining property owners have enclosed the road with a fence continuously for at least 20 years.” Tex. Transp. Code Ann. § 251.057(a) (Vernon 1999). In this case, the trial court expressly found that the Kuhn family moved onto the premises in 1951 and that, at that time:

the portion of the Martin strip, consisting of all of the west one-half, and the 0.1777 acre tract out of the east one-half of such strip, as shown on Exhibit A, was enclosed by fence as one unit with the home on Lots 10-15 [Kuhn’s property]. Such tract had been used exclusively by the prior owners of [Kuhn’s property], as part of one rural residential tract, with a gate or gap at the north end, on the east side of the Martin strip, maintained and used exclusively by the owners of [Kuhn’s property]. ... The driveway over the east one-half to plaintiffs’ garage was built by a prior owner of [Kuhn’s property], was used only [by] the owners of said premises and their visitors, not by the public generally. ... The rear of [Kuhn’s property] was closed off by fence, with no gate or gap.

This finding is supported by the testimony of Kuhn, Olin Kneupper , Kuhn’s husband, and Kuhn’s sister, who each testified regarding the existence of the fence enclosing the road. Accordingly, the evidence is sufficient to support the conclusion that the road was statutorily abandoned in accordance with Section 251.057(a) of the Texas Transportation Code.

            Since we have concluded that the trial court did not err in determining that Martin St. was abandoned, we must consider whether the evidence is sufficient to support the trial court’s conclusion that Kuhn acquired title to the west one-half and the 0.1777 acres of the east one-half of Martin St. by adverse possession. “Adverse possession” means 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. Tex. Civ. Prac. & Rem. Code Ann. § 16.021(1) (Vernon 2002). Possession must not only be actual, but also visible, continuous, notorious, distinct, hostile (i.e., adverse), and of such a character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant. Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990). The test of hostility is whether acts performed by the claimant on the land, and the use made of the land, was of such a nature and character as to reasonably notify the true owner of the land that a hostile claim was being asserted to the property. Cherokee Water Co. v. Freeman, 145 S.W.3d 809, 817 (Tex. App.—Texarkana 2004, pet. denied).

            The trial court found that Kuhn and her predecessors in title satisfied the requirements of the ten year adverse possession statute “several times over.” The testimony of Kuhn, her husband, her sister, and Kneupper support the trial court’s findings that: (1) Martin St. was continuously enclosed by a fence as one unit with Kuhn’s home; (2) a driveway was maintained over Martin St. that was exclusively used by Kuhn and her predecessors to access their garage and their barn; (3) a butane tank and a woodpile were maintained on Martin St.; (4) a second cross-fence was erected to keep livestock penned toward the back of the Martin St. strip; (5) Piper used Martin St. when she was engaged in slaughtering and processing chickens to sell to the school and other buyers; (6) the lateral field for Piper’s septic tank was installed by digging trenches on Martin St. In addition to the foregoing, Kuhn testified that a garden was maintained at the back of the Martin St. strip. Although the Rices contend that the evidence of livestock grazing could not be used to establish adverse possession, in this case there is evidence of uses other than grazing; therefore, the “grazing only” exception does not apply, thereby eliminating the need for proof of a designed enclosure. Fish v. Bannister, 759 S.W.2d 714, 720 (Tex. App.—San Antonio 1988, no writ); see also Trano v. Macha, No. 01-03-00126-CV, 2004 WL 2415100 (Tex. App.—Houston [1st Dist.] Oct. 28, 2004, no pet.) (adverse possession established by evidence of the building of a driveway and garage). Having reviewed the entire record, we conclude that the evidence is legally and factually sufficient to support the trial court’s adverse possession finding. Because we hold that Kuhn was properly awarded title and possession based on adverse possession, we do not address the estoppel theory for upholding her award.

Parol Gift

            A gift of realty may be made in two ways – either by deed or by parol gift. Thompson v. Dart, 746 S.W.2d 821, 825 (Tex. App.—San Antonio 1988, no writ). There are three requisites to uphold a parol gift of realty in equity: (1) a gift in praesenti, (2) possession under the gift by the donee with the donor’s consent, and (3) permanent and valuable improvements made on the property by the donee with the donor’s knowledge or consent or, without improvements, the existence of such facts as would make it a fraud upon the donee not to enforce the gift. Id.

            In this case, evidence was presented that at the time the Rices installed their new fence, they attempted to follow a survey and the old fence line. Piper objected to the Rices including a portion of the back intersection within the fence, questioning their title to that property. Mr. Rice told Kuhn that he was giving Piper the wedge-shaped property previously enclosed in his fence in exchange for the portion she questioned. Accordingly, the evidence showed a gift, possession with the Rices’ consent, and either an improvement if Kuhn’s back fence is considered or, considering the evidence regarding Piper’s age and health, the existence of such facts as would make it a fraud upon the donee not to enforce the gift. Accordingly, we hold that the evidence was sufficient to establish the trial court’s finding of a parol gift.

Conclusion

            The trial court’s judgment is affirmed.

Alma L. López, Chief Justice