Co-Tenant Cannot Prove Constructive Ouster Solely Through Long-Continued Possession and Non-Assertion of Claim
The San Antonio Court of Appeals recently addressed the proof necessary to establish constructive ouster of a co-tenant so as to begin the running of adverse limitations against a co-tenant. Hardaway v. Nixon, ___ S.W.3d ___, No. 04-16-00252-CV, 2017 WL 5615635 (Tex. App.—San Antonio, Nov. 22, 2017, no pet. h.).
In the late 1800s, Louis and Eliza Eckford owned a 147.5-acre tract in Karnes County, Texas as community property. Louis died intestate, and one-half of the real property passed to Ms. Eckford, and the other of half passed to the couple’s nine surviving children. Ms. Eckford later died intestate, and the court appointed administrator purported to sell the entire 147.5 acres to Fritz Korth, who then conveyed it to Romeo Korth. Remeo and his wife then leased their mineral rights to Texas Oil & Gas Corp. in 1978. After their death, Romeo and his wife’s heirs and their descendants continued to exercise possession of the property.
At some point before 2012, Burlington Resources and West 17th Resources discovered information that led them to believe the heirs of Louis and Eliza Eckford owned an unleased one-half interest in the 147.5-acre tract possessed by the Korth heirs. As a result they sought out and entered in mineral leases with numerous Eckford heirs. In 2012, because some of the Eckford heirs could not be located, Burlington instituted a receivership proceeding in which it alleged the heirs of Louis Eckford owned a one-half unleased interest in the 147.5 acres and asked for the appointment of a receiver to manage their interest. The Korth heirs intervened and asserted they held sole ownership of the 147.5-acre tract based on: (1) the doctrine of presumption of deed; (2) record ownership based on recorded deeds and other instruments; and (3) actual or constructive ouster of the cotenants and the ensuing running of the statutes of limitation for adverse possession. The trial court granted summary judgment for the Korth heirs based only on the third ground of constructive ouster and limitations.
The Eckford heirs appealed, arguing that the Korth heirs failed to establish constructive ouster as a matter of law. The Korth heirs argued they held uninterrupted possession of the property since 1939, and that amounted to constructive ouster.
The court began its analysis by reviewing the law of adverse possession against a co-tenant. Because a co-tenant is entitled to equal possession, mere possession of the property will not be considered adverse or hostile to the other co-tenant without proof of actual or constructive ouster, also known as repudiation. Id. at *4. Ouster has been defined as “unequivocal, unmistakable, and hostile acts the possessor took to disseize other cotenants.” Id. Based on Tex-Wis Co. v. Johnson, 534 S.W.2d 895, 899 (Tex. 1976), constructive ouster or repudiation may be established when there has been long-continued possession under a claim of possession and nonassertion of claim by the titleholder. Id. According to the court, this rule was only set forth in the context of a jury trial, and therefore, the rule only sets fort the facts upon which a jury could infer notice to the cotenant or from which a jury might presume notice. Id. As a result, the court held that these facts alone are insufficient to establish a summary judgment movant’s right to judgment as a matter of law. The court found that the only basis of ouster that the Korth heirs presented was long-continued possession and non-assertion of claim, and therefore, the trial court erred in granting them summary judgment on that basis. Id. at *7.