Creighton University School of Law

Secondary Source Report

DATE: 9/23/2010
TO: Dr. Kitchel
FROM: Conor McCarthy
SECTION: A4
SUBJECT: Rink v. Benedict

Secondary Authorities:

Wade R. Habeeb, Grazing of Livestock or Gathering of Natural Crop as Fulfilling Traditional

Elements of Adverse Possession 48 A.L.R.3d 818 (1973)

Jennifer E. Starr, Comment, Casual and Designed Enclosures: How Texas Courts Determine

Adverse Possession, 44 Baylor L. Rev. (1992),available at Westlaw 44 BLRLR 921

6 Richard R. Powell, Powell on Property, § 91.01-.07 (2010)

Section 2:

When beginning my search, I first did a simple electronic search for the terms “adverse

possession”, grazing and “Texas” in all secondary resources. This approach failed to be of use, as

I cast the net too wide and the results were too numerous. I then isolated the terms of “adverse

possession” and “grazing”, in only the “ALR” and “all treatises & law reviews” section. I

utilized Westlaw for all of these early searches. I picked up the Treatise for “Powell on Property”

via Lexis. I found it by virtue of personal knowledge of its existence and navigated it using the

Table of Contents function. I found the Law Review article using Westlaw’s JLR database. My

terms were again general with “Texas”, “Grazing” and “Adverse Possession” bringing up the

Baylor Review article.

The most helpful would be the Baylor Law Article. It clearly outlined the issues in a very

concise and focused manner, but with a high degree of background into the specifics of Texas
law. The second most useful source is Powell on Property. It gave a very in depth general

summary for the social and societal effects of adverse possession, and why adverse possession is

a benefit to the community. The secondary authorities lead me to many cases pertinent to my

jurisdiction. The major case I found was Shouse v. Roberts, which I briefed below.

The public policy of adverse possession is summarized in Powell on Property § 91.01.

“Adverse possession serves the social policy of not disturbing what has become the status quo.”

The reason for which the property was adversely possessed is the owners decision to sit on his

rights and obligations. This policy not only preserves the status quo, but also rewards diligent

property owners. The adverse possessor has utilized the land, cared for the land, acting the part

of owner and therefore perceived as such by the community.

But what exactly are the requirements to create a case of adverse possession? Powell

delineates the requirements as follows: “To establish title by adverse possession, a claimant must

demonstrate actual, open and notorious, exclusive, continuous and hostile possession of the

premises for the prescribed statutory period often under a claim of right or color of title. Each of

these elements must be present for title by adverse possession to be conferred. The true owner

must be removed from possession and kept out for the statutory period by an open, visible, and

exclusive possession of the claimant without license or consent of the owner. The element of

actual possession is defined by Powell as “…claimant must use and possess the land to the same

extent as a record owner would, in light of the property's particular attributes.” The final clause

allows the finder of fact to take into account the nature and location of the land, resulting in the

enclosure requirements in the Texas statutes. The openness and notoriety of the possession is a

key element as the owner needs to be “put on guard” about the use of his land. It better serves the

public policy to have the owner informed and gives the owner the ability to act with necessary
promptness. The next element, the hostility of land use, is defined by Powell as “Hostile

possession can be understood as possession that is opposed and antagonistic to all other claims,

and that conveys the clear message that the possessor intends to possess the land as his or her

own” This does not require bad faith, or any other meaning of hostility. The exclusive use of the

property is simply defined as the owner using the property for his own personal use, subject to

his whims and characterized as the use an owner would give to the property. The element of the

use being continuous refers to the use of the property, during the normal period of time in which

an owner would use it, without ceasing or other interruption. In application to this particular

case, the use of the land to consistently graze cattle as opposed to allowing the cattle to wander

over a few times per year.

Due to Texas law, the question of the enclosure of the land is key when used for grazing

purposes, in addition to the kind of enclosure, the age/ erection of enclosures. The question of the

nature of the enclosures is central to the case in question, namely its casual or designed nature. In

this case, the changes to the fence, and addition to the fence to make a complete boundary, in

addition to the maintenance of the fences in question.

As to my disposition on the strength of the case of Jett Rink yes, the act of repairing and

enclosing the parcel, grazing his cattle on it, and building outbuildings , and maintaining general

upkeep of the parcel would, in my opinion offer a good foundation for a claim of adverse

possession. Due to Texas statutes and the precedent set in the case I am briefing below, I feel that

the repair and maintenance of past fences which Rink had utilized and the new fencing built, in

itself should deliver a verdict in his favor. Should the court fail to do so on those merits, the

erection of outbuildings also shows the use of the land, although not necessarily to the entire

tract in question. Another key item to be argued is the attempt to improve the land by use of
water rights, with the attempted drilling of a well to provide an independent water source for the

land in question.

Section 3:

Shouse v. Roberts, 737 S.W.2d 354 (1987)

Court of Appeals of Texas (14th District)

FACTS: A trespass to title action was brought against the estate holder of title of record to a tract

of land. The plot of land was approximately 5 acres and adjoined the property of the appellee.

The appellee erected a fence between his tract and the tract in question, and repaired, improved,

and maintained the partial fences that initially were on the tract in question. He utilized this tract

for grazing horses and cattle for a period of ten years. In addition to the maintenance of fences,

the appellee also erected a water trough for his grazing herd and regularly cleared the tract of

brush and fertilized the tract. The trial court found for the appellee granting title by adverse

possession.

RULE: The repair of existing fences, erection of new fences, and maintenance of both allows the

builder to claim such fencing patterns to be “designed enclosures” pertaining to the grazing of

cattle under the rules of adverse possession.

ISSUE: The parties bring three issues on appeal; First that the Court erred in failing to define the

terms of “designedly enclosed” and “casual or incidental fencing” as used in an adverse

possession claim based on grazing cattle. Second and third, the appellees attack the factual and

legal sufficiency of the evidence supporting the jury finding of adverse possession. Claiming no

evidence or insufficient evidence to support the adverse possession as the disputed property was

not “designedly enclosed”.

HOLDING: “It is undisputed that appellee’s use or occupancy of [the tract], through Waggoner,

was for grazing livestock. However appellants argue there is insufficient evidence to show that

[the tract] was “fenced in” intentionally. They claim, rather, that the property was merely

casually enclosed by the owner (Waggoner) who fenced out [the tract] by fencing in his own

tract… We have reviewed all relevant evidence in the record according to the aforementioned

standards. We hold the evidence regarding the designed enclosure of [the tract] sufficient to

support the jury finding of ten year adverse possession.”

DISPOSITION: Lower court affirmed

REASONING&POLICIES: “Appellants' insistence that [the tract] was merely “fenced out”

rather than intentionally “fenced in” is incorrect. Their argument appears to rely on the fact that

the boundary fence between [the tract] and Tract 46 was constructed approximately six inches

south of the [the tract]’s property line, thus lying on Tract 46. It is apparent from Waggoner's

testimony that since his status was both that of appellee's tenant and owner of the adjacent tract,

he was forced to bear the entire cost of the fence. He therefore chose to lose several inches of

Tract 46, which he owned, by having the fence erected south of Tract 46's property line…”

LOCATION: I found this case cited in 2 of my resources: First, in 48 A.L.R.3d 818 §11[a] and

then again in 44 BLRLR 921 p930 [FN82]

WEIGHT OF AUTHORITY: In the state of Texas, the weight of this case is moderate to high.

The Court of Appeals affirms the trial court, and the Texas Supreme Court denied a writ to hear

it on appeal. It delineates a position in which the erection of a portion of new fencing and repair

of dilapidated fencing to create a new fencing system may be considered “designedly enclosed”.