Fletcher v. Merritt resulted in several rulings on the proof required to prevail in a property dispute. Merritt filed a trespass to try title suit (actually a quiet title, which the court construed as TTT) against Fletcher for ownership of a 28.9 foot-wide strip separating their lots.  In concluding that the evidence was legally and factually sufficient to support adverse possession in favor of Merritt the court clarified several aspects of Texas adverse possession and TTT law.  

Dueling surveys concluded that both parties owned the strip. Defendant Fletcher sought superior title based on adverse possession. The court affirmed Merritt’s ownership.

A general denial won’t interrupt peacable possession

Fletcher’s denial of Merritt’s TTT petition without affirmatively claiming ownershjp was insufficient to disrupt the peaceable possession element of adverse possession. The defendant in a TTT suit seeking to interrupt the plaintiff’s peaceable possession must seek affirmative relief of his own to recover the property. Merritt’s evidence was sufficient to support the finding that his possession was peaceable.

A correction deed can support limitations

A correction deed was filed less than five years before suit was filed. Fletcher challenged the “duly registered deed” requirement in Civil Practice and Remedies Code §16.025(a)(3) (the five-year statute) to establish adverse possession. A correction deed is effective as of the date of the original deed, according to Property Code §5.030(a)(1). The court said there is no authority for the proposition that the mandate does not affect limitations for the purposes of adverse possession. In other words, because of its effective date per the statute, the correction deed supported five-year limitations. Plus, there was no testimony from the surveyor about the effect a change in metes and bounds would have had on the boundary. The court was left to speculate.

Use can be established by temporary improvements

Adverse possession requires continuous, use, cultivation or enjoyment of the disputed property for the statutory period. Fletcher argued that Merritt’s shed and propane tank on the property were temporary improvements and insufficient to demonstrate continuous use, etc. But there is no requirement that permanent structures be built in order to establish continuous use.

The testimony that Merritt maintained the strip since moving in was testimony that the disputed strip always belong to him.  

No attorney’s fees in a TTT action
Fletcher’s challenge to an award of attorney fees to Merritt was successful. Attorney fees are not recoverable in TTT. Merritt argued for fees under the Texas Uniform Declaratory Judgment Act, but he did not ask the trial court to determine the boundary between the two lots.  Rather, he asked the trial court to determine that he had superior right to possession of the disputed land through adverse possession. It was a suit for adverse possession, not for a declaration of the boundary line.

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