No CV IN THE COURT OF APPEALS FIFTH COURT OF APPEALS DISTRICT DALLAS, TEXAS. WILLIAM B. BLAYLOCK and ELAINE C. BLAYLOCK, Appellants

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1 No CV IN THE COURT OF APPEALS FIFTH COURT OF APPEALS DISTRICT DALLAS, TEXAS 5th Court of Appeals FILED: 03/05/ :00 Lisa Matz, Clerk WILLIAM B. BLAYLOCK and ELAINE C. BLAYLOCK, Appellants v. THOMAS P. HOLLAND and KIMBERLY HOLLAND Appellees On Appeal from the 193 rd Judicial District Court, Dallas County, Texas No APPELLANTS REPLY BRIEF Marc H. Richman State Bar No Thad D. Spalding State Bar No THE LAW OFFICES OF MARC H. RICHMAN 304 South Record Street Dallas, Texas (214) (214) (fax) ATTORNEYS FOR APPELLANTS ORAL ARGUMENT REQUESTED

2 TABLE OF CONTENTS Page INDEX OF AUTHORITIES... iii I. INTRODUCTION...1 II. ARGUMENT & AUTHORITIES...3 A. Adverse Possession is Barred by Texas Civil Practice and Remedies Code Section (b) The Blaylocks, as owners of the property and members of the public, had standing to rely on section (b) The dedication language could not be clearer the easement is dedicate[d] to the public use forever The public dedication was irrevocable Even though it was irrevocable, the Blaylocks proved implied acceptance of the dedication There was never any pleading or proof to support a finding that the public dedication was abandoned B. The Hollands Never Proved a Hostile Use of the Property Prior to August III. CONCLUSION IV. PRAYER CERTIFICATE OF SERVICE ii

3 Cases INDEX OF AUTHORITIES Page Adams v. Rowles, 228 S.W.2d 849 (Tex. 1950) Bowen v. Ingram, 896 S.W.2d 331 (Tex. App. Amarillo 1995, no writ)... 6, 12 Calfee v. Duke, 544 S.W.2d 640 (Tex. 1976) City of Houston v. Lawyers Trust Co., 348 S.W.2d 26 (Tex. Civ. App. Waco 1961), judgm t rev d on other grounds, 359 S.W.2d 887 (Tex. 1962) City of Richland Hills v. Bertelsen, 724 S.W.2d 428 (Tex. App. Fort Worth 1987, no writ)... 3, 4 Compton v. Thacker, 474 S.W.2d 570 (Tex. Civ. App. Dallas 1971, writ ref d n.r.e.) Copeland v. City of Dallas, 454 S.W.2d 279 (Tex. Civ. App. Dallas 1970, writ ref d n.r.e.)... 7 Ellis v. Jansing, 620 S.W.2d 569 (Tex. 1970)... 4, 14, 15 Fazzino v. Guido, 836 S.W.2d 271 (Tex. App. Houston [1 st Dist.] 1992, writ denied) Futrell v. Lopez, No CV, 2003 WL (Tex. App. San Antonio June 4, 2003, no pet.) (mem. op.)... 8 Hatton v. Grigar, 66 S.W.3d 545 (Tex. App. Houston [14 th Dist.] 2002, no pet.)... 10, 11 Latch v. Gratty, Inc., 107 S.W.3d 543 (Tex. 2003) iii

4 Cases (cont'd) INDEX OF AUTHORITIES (cont'd) Page Masonic Bldg. Ass n of Houston v. McWhorter, 177 S.W.3d 465 (Tex. App. Houston [1 st Dist.] 2005, no pet.)... 16, 18, 19 Moore v. Stone, 255 S.W.3d 284 (Tex. App. Dallas 2008, pet. denied) Myers v. Wright, 224 S.W.3d 466 (Tex. App. Dallas 2007, no pet.) Rhodes v. Cahill, 802 S.W.2d 643 (Tex. 1990)... 13, 17, 18 Rick v. Grubbs, 214 S.W.2d 925 (Tex. 1948) Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492 (Tex. 1991) Tran v. Macha, 213 S.W.3d 913 (Tex. 2006)... 13, 14, 15 Viscardi v. Pajestka, 576 S.W.2d 16 (Tex. 1978)... 5, 9 Statutes TEX. CIV. PRAC. & REM. CODE ANN (1) (Vernon 2002) TEX. CIV. PRAC. & REM. CODE ANN (b) (Vernon 2002)... 1, 2, 3, 4, 5 TEX. CIV. PRAC. & REM. CODE ANN (a)(2) (Vernon Supp. 2011) Rules TEX. R. CIV. P TEX. R. CIV. P iv

5 No CV IN THE COURT OF APPEALS FIFTH COURT OF APPEALS DISTRICT DALLAS, TEXAS WILLIAM B. BLAYLOCK and ELAINE C. BLAYLOCK, Appellants v. THOMAS P. HOLLAND and KIMBERLY HOLLAND Appellees On Appeal from the 193 rd Judicial District Court, Dallas County, Texas No APPELLANTS REPLY BRIEF Appellants William B. Blaylock and Elaine C. Blaylock file this Reply Brief to respond to the Appellees Brief and the arguments raised therein. I. INTRODUCTION As a matter of law, the Hollands were precluded from adversely possessing the Blaylocks property because the strip to which they sought to acquire title was dedicated to the public use. Contrary to the Hollands arguments: 1. the Blaylocks as the property owners and members of the public had standing to rely on Texas Civil Practice and

6 Remedies Code section (b) in defense of the Hollands adverse possession claim; 2. the Plat Map clearly and plainly dedicated the easement to the public use forever; 3. the Blaylocks proved at trial that the dedication was irrevocable, making proof of acceptance unnecessary, once the lots created by that plat map were sold making specific reference to the plat map; 4. even if the dedication was not irrevocable, the Blaylocks proved implied acceptance based on clear, uncontroverted testimony including Ms. Holland s own testimony that the easement was used not just by children and neighbors, but by utility companies, the phone company, and the cable company; and 5. there was never evidence or pleadings to support the Hollands claim that the irrevocably dedicated easement was ever abandoned. But, even assuming section (b) did not bar the Hollands claim, the Hollands never proved that they took any action to visibly appropriate the Blaylocks property until they constructed their own fence in August It is undisputed that the Blaylocks filed suit less than 10 years later to clear the title to their own property. When they did, any claim of title to the property by adverse possession was extinguished. In short, the Hollands have not, and cannot, justify the trial court s award of title to the Blaylocks property by adverse possession. Accordingly, the trial court s judgment should be reversed and judgment rendered in favor of the Blaylocks. 2

7 II. ARGUMENT & AUTHORITIES A. Adverse Possession is Barred by Texas Civil Practice and Remedies Code Section (b). A person may not acquire through adverse possession any right or title to real property dedicated to public use. TEX. CIV. PRAC. & REM. CODE ANN (b) (Vernon 2002). 1. The Blaylocks, as owners of the property and members of the public, had standing to rely on section (b). The Hollands begin their brief by claiming, without any legal or factual support, that [s]ection (b) is purposed to protect the public to whom lands are specifically dedicated and is not intended or purposed to protect private landowners who own land upon which an easement exists that is solely dedicated to the public. See Appellees Brief at 5. But, landowners (like the Blaylocks) always have standing to protect their own property. Dedication of property to the public use does not extinguish the Blaylocks fee in the land, which remains in the plaintiff owner; the public only obtains an easement in the land dedicated for its use. City of Richland Hills v. Bertelsen, 724 S.W.2d 428, 431 (Tex. App. Fort Worth 1987, no writ). The owner retains the ownership of the fee and grants only an easement, and he can continue to use the property in any way he sees fit so long as the use is not inconsistent with the public use for which the property was dedicated, or convey or transfer to another such right or title as remains 3

8 in himself, subject to the public rights. Id. (quoting 11 McQuillin, Municipal Corporations (1983)). Certainly, title to the property remained with the Blaylocks and, as long as it did, the Blaylocks had standing to protect that title, including defending any adverse claim of possession. Moreover, Ellis v. Jansing, 620 S.W.2d 569 (Tex. 1970), squarely defeats the Hollands claim that section (b) is somehow limited in scope. Ellis, like this case, involved a dispute between two private landowners. See id. at The Texas Supreme Court found the statute to be applicable to a dispute between private landowners, holding: that it was the intent of the Legislature in enacting Article 5517 [now section (b)] to protect the rights of those persons to whom the property was dedicated from any person claiming by adverse possession. A dedication for use by the general public, as in this case, protects the right of use by the public generally, not just the city, county or other public body. Id. Thus, in Ellis, where the document dedicating a 15-foot easement as an alleyway and passageway showed an intent to dedicate it to the City of Waco, to adjacent property owners, and to the general public, the Texas Supreme Court found that the statute prohibited a claim of adverse possession. See id. The Hollands misconstrue the nature of section (b). The statute at issue is not one that grants rights to a select class of people. Rather, the statute is one of prohibition, in that it prohibits the Hollands adverse possession claim. In that sense, it is purely defensive to the Hollands claim 4

9 of adverse possession. Since it is the Hollands burden to prove all elements of their adverse possession claim to property owned by the Blaylocks, the Blaylocks certainly had standing to rely on this defense. In the end, even assuming the Hollands interpretation of the statute is correct, the Blaylocks would nonetheless have standing to rely on section (b) as members of the general public who are directly affected. The Blaylocks are unquestionably members of the public, and in that sense, would certainly satisfy any standing requirement section (b) may impose. 2. The dedication language could not be clearer the easement is dedicate[d] to the public use forever. A dedication may be accomplished by express grant or implication. Viscardi v. Pajestka, 576 S.W.2d 16, 19 (Tex. 1978). Express dedications are accomplished by deed or written document. See id. Here, the express dedication in the 1964 Plat Map is clear. (1 RR 49-50). The three-foot easement that runs along the back of the Blaylocks property, and the easement upon which the Hollands fence is located, is dedicate[d] to the public use forever and for the mutual use and accommodation of all public utilities desiring to use or using same (2 RR PX 2; CR 50; App. Tab 4). The Hollands acknowledge this law and these facts. However, they now claim that the dedication language, dedicating the property to the 5

10 public use forever is somehow trumped by the more specific language dedicating the easements for the mutual use and accommodation of all public utilities desiring to use or using same See Appellees Brief at 6-7. This argument, however, has been squarely addressed and rejected by the case law. In Bowen v. Ingram, the Amarillo Court of Appeals addressed nearly identical dedication language contained in a recorded plat, dedicating an easement: for the use, enjoyment, and benefit of land owners in Del Rancho Village, a subdivision adjacent to said strip of land, for the use, benefit and enjoyment of the public generally, and for the use and benefit of any public utility, municipality or other person or firm furnishing gas, water, electricity, telephone and/or other utilities Bowen v. Ingram, 896 S.W.2d 331, 333 (Tex. App. Amarillo 1995, no writ). Because the land was dedicated for the use and benefit of adjoining landowners and the public generally before its conjunctive reference to the use for utility purposes, the court held that the dedication did not limit the alleyway s use to utility purposes. See id. at 335. The conjunctive reference in this case does not limit the property either. The Hollands then claim that, by dedicating the easement for use by public utilities, the easement is really for private utility companies, and therefore not a dedication for public use. See Appellees Brief at 7. Again, 6

11 the Hollands ignore the dedication s clear language: the dedication is for the public use forever and for public utilities. (2 RR PX 2; App. Tab 4) (emphasis added). To somehow claim, in spite of such language, that the dedication is limited even further, ignores the undisputed evidence. The property was dedicated to the public use and cannot be adversely possessed. 3. The public dedication was irrevocable. In response to the Blaylocks claim that the dedication was irrevocable, the Hollands first claim that this case is different from the situation presented to this Court in Copeland v. City of Dallas, 454 S.W.2d 279 (Tex. Civ. App. Dallas 1970, writ ref d n.r.e.), because in Copeland the grantors drafted, executed, and filed a specific dedicatory affidavit. See Appellees Brief at 7. But, the grantors in this case also recorded a specific sworn and verified dedicatory affidavit. The dedicatory language that was the subject of discussion at trial and here the language that dedicates the property to the public use forever was part of a dedicatory affidavit, labeled the Owner s Certificate, which is sworn to and verified, that was part of the plat map itself. (2 RR PX2; CR 50, 99; App. Tab 4). So, this case is just like Copeland. 7

12 The Hollands also criticize the Blaylocks proof at trial. 1 Citing Copeland, the Hollands argue that the Blaylocks were required, but failed, to prove that: (1) the dedication, once made, was coupled with the sale of lots; and (2) that those sales made reference to the plat map constituting the dedication. See Appellees Brief at 8. But, the 1964 Plat Map and both the Hobbs and the Blaylocks deeds to the property at issue, both of which expressly reference the plat map, were all admitted at trial without objection. (2 RR PX1-3). This was all the proof necessary to establish that the dedication was irrevocable, and that formal acceptance was not necessary. See Futrell v. Lopez, No CV, 2003 WL *1 (Tex. App. San Antonio June 4, 2003, no pet.) (mem. op.) (finding a binding and irrevocable dedication based on the filed and recorded plat and declaratory affidavit, and deeds conveying portions of the platted land which contained references to the plat). 4. Even though it was irrevocable, the Blaylocks proved implied acceptance of the dedication. Without any cite to any authority whatsoever, the Hollands simply claim that the evidence presented at trial by the Blaylocks was not competent 1 The Hollands also seem to claim that irrevocability was a defense that needed to be raised in the trial court. See Appellees Brief at 7-8. But, irrevocability is not a defense. Rather, according to Texas Supreme Court, an irrevocable dedication to the public simply proves the public dedication without the need for any additional proof of acceptance. See Adams v. Rowles, 228 S.W.2d 849, (Tex. 1950). 8

13 proof of implied acceptance. See Appellees Brief at 9. The Texas Supreme Court in Viscardi v. Pajestka, however, squarely rejected the Hollands argument. If an intention to dedicate is otherwise shown the public use of the land is sufficient to constitute a completed dedication. Viscardi, 576 S.W.2d at 19. In Viscardi, the Texas Supreme Court found an implied acceptance where there was evidence that the adjoining land owners, their tenants and guests had used the alley, and that the City of Austin had used the alley for trash collection. Id. Here, the Blaylocks presented testimony not just that neighborhood kids had used the area behind the Blaylocks fence, 2 but that the public utility companies used the area to access the utilities with their trucks and to trim trees (1 RR 16, 28-29, 96), and that the phone and cable companies would use this area to access the phone and cable lines. (1 RR 69). Even Ms. Holland acknowledged at trial that TXU and Southwestern Bell had used the public utility easement. (1 RR 116). According to Viscardi, such evidence proves an implied acceptance as a matter of law. See id. at 18, This area was not only three feet wide as the Hollands claim in their brief. See Appellees Brief at 9. The easement at the back of the Blaylocks property was only three feet. (1 RR 37). However, there was another easement at the back of the Hollands property that was approximately 3-5 feet wide, making the entire alleyway between the two properties approximately 6-8 feet wide, sufficient to accommodate public utility vehicles. (1 RR 14). 9

14 5. There was never any pleading or proof to support a finding that the public dedication was abandoned. Because abandonment is an affirmative defense, and the Hollands never plead it, they were prohibited from relying on it in the trial and cannot rely on it here. See Hatton v. Grigar, 66 S.W.3d 545, 557 (Tex. App. Houston [14 th Dist.] 2002, no pet.); see also Fazzino v. Guido, 836 S.W.2d 271, 275 (Tex. App. Houston [1 st Dist.] 1992, writ denied). The Hollands acknowledge the outright lack of any pleading on the issue of abandonment, instead claiming that they can nonetheless rely on the affirmative defense because the Blaylocks were aware of it once the Hollands raised it in their summary judgment response. See Appellees Brief at 9. However, that is not the law. The Blaylocks objected to the lack of any abandonment pleading in their summary judgment reply brief and again at trial. (CR 196; 1 RR 90). In the face of these objections, the issue cannot be said to have been tried by consent and thus it was incumbent on the Hollands to amend their pleadings to include the defense of abandonment if they wanted to rely on it in support of their judgment. See Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, (Tex. 1991); see also TEX. R. CIV. P. 66. Despite being notified weeks before trial of their pleading deficiency, the Hollands never amended their 10

15 pleadings to include any claim of abandonment. The Hollands, therefore, waived that theory. See Hatton, 66 S.W.3d at 557. Fundamentally, a judgment must always conform to the pleadings and proof. See TEX. R. CIV. P Absent a pleading of abandonment, particularly in the face of the Blaylocks repeated objections to the lack of any pleading of that affirmative defense, the trial court s finding of abandonment does not conform to the pleadings and, therefore, cannot stand. See Latch v. Gratty, Inc., 107 S.W.3d 543, 546 (Tex. 2003). In the end, there was no evidence to support a claim of abandonment. The Hollands base their abandonment claim exclusively on the existence of the Blaylocks fence between the two properties. See Appellees Brief at 10. The abandonment claim fails as a matter of law. First, the Blaylocks fence did not block the easement. It honored the easement, having been built three feet inside the Blaylocks property line. So, the only fences that could have blocked the easement were fences bordering the Hollands backyard to the north and south. But, the Hollands cannot unilaterally block the easement and then claim abandonment. See City of Houston v. Lawyers Trust Co., 348 S.W.2d 26 (Tex. Civ. App. Waco 1961), judgm t rev d on other grounds, 359 S.W.2d 887 (Tex. 1962). 11

16 Ultimately, abandonment only occurs when the use for which property is dedicated becomes impossible, or so highly improbable as to be practically impossible, or where the object of the use for which the property is dedicated wholly fails. Adams, 228 S.W.2d at 852. The simple fact that the easement is blocked by fences does not prove abandonment, since fences, in and of themselves, do not render use of the easement impossible or practically impossible. 3 See Bowen, 896 S.W.2d at 335 (finding defendants to be statutorily precluded from obtaining title by adverse possession to alleyway and easement dedicated for benefit of public by prior owner, despite defendants construction of fence across alleyway and fact that fence had been there more than ten years); Compton v. Thacker, 474 S.W.2d 570, 574 (Tex. Civ. App. Dallas 1971, writ ref d n.r.e.) (use of road was not rendered impossible or impracticable, even though obstructed by fences and timber, since these obstructions could have been removed easily). B. The Hollands Never Proved a Hostile Use of the Property Prior to August The Hollands claim that, to adversely possess property, all that is required is that the adverse claimants believe that the property is theirs and 3 This makes sense when one considers that public utilities were granted the absolute right, according to the plat map, to remove and keep removed all or part of any buildings, fences, trees, shrubs, or other improvements or growths from the easement. (2 RR PX 2; CR 50; App. Tab 4). 12

17 use the property day in and day out as a typical family would use their backyard, especially a family with children and dogs. See Appellees Brief at 11. This is not the law in Texas. 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 throughout the statutory period. TEX. CIV. PRAC. & REM. CODE ANN (1) (Vernon 2002) (emphasis added); see also Moore v. Stone, 255 S.W.3d 284, 288 (Tex. App. Dallas 2008, pet. denied). Such possession must be inconsistent with and hostile to the claims of all others and must be of such a character as to indicate unmistakably an assertion of a claim of exclusive ownership in the Defendants. Tran v. Macha, 213 S.W.3d 913, 914 (Tex. 2006); Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990) (quoting Rick v. Grubbs, 214 S.W.2d 925, 927 (Tex. 1948)) (emphasis in original). The Hollands seize on language in Tran v. Macha to claim that intent to take the Blaylocks property was not necessary, nor was knowledge that the property was owned by someone else. See Appellees Brief at 10. It is true that Tran v. Macha states that hostile use does not require an intention to dispossess the rightful owner, or even know that there is one. Tran, 213 S.W.3d at 915 (citing Calfee v. Duke, 544 S.W.2d 640, 642 (Tex. 13

18 1976)). But, Tran goes on to re-state the rule established in Ellis v. Jansing, and the rule that the Hollands conveniently overlook: But there must be an intention to claim property as one s own to the exclusion of all others; [m]ere occupance of land without any intention to appropriate it will not support the statute of limitations. Tran, 213 S.W.3d at 915 (quoting Ellis, 620 S.W.2d at 571). Ellis is particularly instructive here. Ellis involved a dispute between neighboring landowners over ownership of a 15-foot easement, as well as a 3-4 foot strip of land to the east of the easement based on the existence of a concrete wall and chain link fence the claimants (the Jansings) believed marked their property line. See Ellis, 620 S.W.2d at Because the Jansings had not possessed the property for more than 10 years when the lawsuit to quite title was filed, the Jansings had to tack their possession to that of their predecessor, the Copelands. Accordingly, at trial, the focus was on the Copelands use of the property. See id. at 571. Mr. Copeland testified: that when he purchased the property the concrete wall and chain link fence on top thereof was in place, it was his understanding that the fence was the eastern boundary line of the property, and it was his belief that his property extended to the retaining wall and the fence. He stated that he used the property as part of his yard, and during the time of his occupancy he maintained it as part of his yard, keeping the grass mowed, trimming and removing trees and other growth the same as other parts of the yard. 14

19 Id. Copeland, like the Hollands here, also testified: he never claimed or intended to claim any property other than that described in his deed, or what he thought was contained in his deed, and he never intended to claim any property owned by the abutting property owners. Id. Thus, the court was left with the question of whether the testimony of Mr. Copeland that he bought the property thinking that the boundary was the concrete retaining wall and maintained it as part of his yard was sufficient to raise a fact issue of adverse possession. Id. The Texas Supreme Court unequivocally answered this question No. We hold these facts are legally insufficient to sustain a claim of adverse possession. Miller v. Fitzpatrick, 418 S.W.2d 884 (Tex. Civ. App. Corpus Christi 1967, writ ref'd n.r.e.). Mere occupancy of land without any intention to appropriate it will not support the statute of limitations. Wright v. Vernon Compress Company, 156 Tex. 474, 296 S.W.2d 517 (1956). No matter how exclusive and hostile to the true owner the possession may be in appearance, it cannot be adverse unless accompanied by the intent on the part of the occupant to make it so. The naked possession unaccompanied with any claim of right will never constitute a bar. Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781 (1954), quoting Houston Oil Company v. Stepney, 187 S.W (Tex. Civ. App. Beaumont 1916, writ ref'd). Id. at Even Tran acknowledges that, while building a structure on property may be sufficient evidence of adverse possession, evidence of mere use is not enough. See Tran, 213 S.W.3d at

20 Here, the facts are not significantly different from those in Ellis. When the Hollands took possession of their property in 1995, the only fence at the back of their property belonged to the Blaylocks. (1 RR ). The Hollands admittedly never built any structure on the three-foot easement until August, 1999, when they built their own fence along and attached to the Blaylocks fence. (1 RR 109). Before that time, Ms. Holland admitted that she never used the property knowing it belonged to the Blaylocks, and always assumed that the three-foot strip at the very back of her property belonged to her. (1 RR ). And, the use she made of the property was even less than was described in Ellis. Ms. Holland cited only daily use of the property. (1 RR 113). This is not enough, under Ellis or Tran. Acknowledging their lack of proof, the Hollands now claim that they can rely on the Blaylocks fence to claim title to the Blaylocks property by adverse possession. See Appellees Brief at But, a landowner s fence cannot be used by his neighbor to adversely possess the landowner s property. See Masonic Bldg. Ass n of Houston v. McWhorter, 177 S.W.3d 465, 473 (Tex. App. Houston [1 st Dist.] 2005, no pet.). 16

21 To support adverse possession, the fence must designedly enclose the area. 4 Rhodes, 802 S.W.2d at 646. If the fence existed before the claimant took possession of the property, the fence is a casual fence, which will not support a claim of adverse possession. See id. Here, the Hollands seek to rely on the Blaylocks fence as a designed enclosure of the Hollands property because the Hollands unilaterally relied on it to enclose their backyard too, and because they repaired and kept up the fence so that it would enclose their property. See Appellees Brief at These arguments are without merit. First, as with many of the Hollands arguments, there is no support for their claim that one neighbor s fence can necessarily be relied on by every other adjoining neighbor as a designed enclosure for adverse possession purposes. This assertion runs afoul of the general proposition that [a] landowner may fence part of his property, but in doing so, he does not 4 The Hollands summarily dismiss the casual fence versus designed enclosure distinction set out in the case law by claiming again without citing to any authority that such case law is only applicable to farm and ranch land, and less developed residences. See Appellees Brief at 13. But, this Court has applied the casual versus designed enclosure distinction to residential properties, and there is no reason it cannot and should not be applicable here. See Myers v. Wright, 224 S.W.3d 466, (Tex. App. Dallas 2007, no pet.). 5 The actual testimony at trial did not show that the Hollands repaired and kept up the fence so that it would enclose the property. Rather, when asked about the condition of the Blaylocks fence when the Hollands move in, Ms. Holland simply related that her husband used to have to go out and kind of prop it up and patch it and everything. (1 RR 115:12-17). 17

22 disclaim or negate his ownership of his property outside of the fenced area. See McWhorter, 177 S.W.3d at 473. This proposition is especially applicable here because the Blaylocks fence was purposefully placed in a location that would not block the easement at issue. With regard to the Hollands claim to have repaired the Blaylocks fence, it is clear that repair and maintenance of a casual fence, even for the express purpose of keeping the claimant s animals within the enclosed area, does not change a casual fence into a designed enclosure for adverse possession purposes. Rhodes, 802 S.W.2d at 646 (emphasis added). The Hollands cannot rely on the Blaylocks fence to claim title by adverse possession. Ultimately, the Hollands arguments all ignore the unmistakable requirement that there be some hostile, visible appropriation of property before an adverse possession claim can accrue. There must be some conduct that would reasonably give the Blaylocks notice that the Hollands asserted a claim to the Blaylocks property. The Hollands arguments ignore this essential aspect of their claim and, in the process, rely on evidence that would never give the Blaylocks notice that anyone claimed title to the Blaylocks property and could never support a claim of adverse possession. By awarding 18

23 the Hollands title to the Blaylocks property in the face of such legally insufficient evidence, the trial court s judgment cannot be sustained. III. CONCLUSION The test for hostile use is whether the acts performed by the claimant and the use made of the land was of such a nature as to reasonably notify the true owner that a claim was being asserted to the property. See McWhorter, 177 S.W.3d at 472. The Hollands never testified that they performed any acts on the particular three-foot strip of land at the back of their yard until August 1999, when they constructed their own fence right next to the Blaylocks fence. Prior to August 1999, the Hollands by their own admission did nothing but engage in daily use of the property, which may or may not have included the three-foot strip next to the Blaylocks fence. This is not any evidence of adverse possession. It is undisputed that the Blaylocks filed suit within 10 years of the date that the Hollands did take some action to claim the property. Accordingly, the Hollands claim of title by limitations necessarily fails, and the trial court s judgment must be reversed. IV. PRAYER For all these reasons, Appellants William B. Blaylock and Elaine C. Blaylock respectfully re-urge their request that this Court reverse the trial 19

24 court s judgment and, upon doing so, render judgment in their favor and against Appellees Thomas P. Holland and Kimberly Holland, confirming the Blaylocks title to the disputed property. And, in the event of a rendition in the Blaylocks favor, the Blaylocks would further re-urge their request that this Court remand this case to the trial court on the issue of attorney s fees only to give the trial court the opportunity to consider the award of attorney s fees under Texas Civil Practice and Remedies Code (a)(2). Finally, the Blaylocks request such other relief to which they may be justly and equitably entitled. Respectfully submitted, By: MARC H. RICHMAN State Bar No THAD D. SPALDING State Bar No THE LAW OFFICES OF MARC H. RICHMAN 304 South Record Street Dallas, Texas Telephone: (214) Facsimile (214) COUNSEL FOR APPELLANTS 20

25 CERTIFICATE OF SERVICE The undersigned certifies that on the 5 th day of March, 2012 a true and correct copy of the foregoing Appellants Reply Brief was forwarded to the following counsel of record via and certified mail, return receipt requested: Mr. James J. Doyle The Doyle Law Firm 4054 McKinney Ave., Suite 310 Dallas, Texas Attorney for Appellees THAD D. SPALDING 21