Court of Appeals of Texas, Fourth District, San Antonio
the 381st Judicial District Court, Starr County, Texas Trial
Court No. DC-16-19 Honorable Everardo Garcia, Judge Presiding
Sitting: Rebeca C. Martinez, Justice, Patricia O. Alvarez,
Justice, Liza A. Rodriguez, Justice
C. MARTINEZ, JUSTICE
Velma San Miguel and Alexis Rendon appeal the trial
court's order granting summary judgment in favor of
Appellee PlainsCapital Bank, Trustee of the Guerra Mineral
Trust, (the "Bank") in a trespass-to-try-title
action. The appellants claim the Bank failed to conclusively
prove it was entitled to judgment as a matter of law. The
Bank moved for summary judgment asserting title to the
disputed property on three alternate theories: (1) the
doctrine of prior possession; (2) statutory adverse
possession; and (3) common law adverse possession. The Bank
also moved for summary judgment on the ground that title to
the disputed property had been previously adjudicated and the
suit was barred by the doctrine of res judicata. The trial
court granted summary judgment in favor of the Bank but did
not specify on which grounds the Bank proved title.
ownership of the mineral interest at issue in this case
involves legal descriptions to three tracts of land
consisting of two tracts nested within a single large tract
in Starr County, Texas. The largest tract, Porcion 58,
consists of approximately 5, 733.70 acres. Nested completely
within Porcion 58 is an 859.77-acre tract. Nested completely
within the 859.77-acre tract is the 781.11-acre tract of
land. The mineral interests in the 781.11-acre tract of land
are in dispute in this case.
trustee of the Guerra Mineral Trust, the Bank claims it holds
record title to 46.6% of the mineral interest in the
781.11-acre tract based on an unbroken record title back to
1956. The beneficiaries of the Guerra Mineral
Trust (the "Guerras") assert they owned the
unsevered surface and mineral interest until the 781.11-acre
tract was sold to Clinton Manges in 1969. In the 1969 sale,
the surface and mineral estates were severed when Manges was
deeded all of the surface estate and 53.4% of the mineral
estate while the Guerras retained 46.6% of the mineral
company sought to develop the mineral interests in the
781.11-acre tract of land, but as a condition of the lease,
the oil company required the title to the mineral interests
be cleared of any claims prior to 1956. Prior to 1956, the
mineral interests were not severed from the surface estate.
Therefore, in order for the Bank to establish ownership of
the mineral interests, the Bank had to establish the Guerras
owned title to the surface estate.
January 2016, the Bank filed a trespass-to-try-title action
to settle title to any claims of ownership before 1956. The
original sovereign was the King of Spain; in 1764 the King of
Spain granted all of Porcion 58 to Joaquin Chapa. The Bank
served the heirs of Joaquin Chapa with citation by
publication. Hundreds of defendants responded to the lawsuit,
but few produced any evidence of ownership. Subsequently, the
Bank moved for summary judgment as a matter of law claiming
it conclusively proved the Guerras had ownership of the
781.11-acre tract of land prior to 1956 because: (1) title
was previously adjudicated in favor of the Guerras in
Manges v. Guerra, 673 S.W.2d 180 (Tex. 1984); (2)
the Guerras acquired title by statutory adverse possession;
(3) the Guerras acquired title by common law adverse
possession; and (4) the Guerras acquired title by prior
possession. The Bank attached the affidavits of William
Thomas Guerra, Sr. (the "Guerra Affidavit") and
Bill Douglas Pope, Sr. (the "Pope Affidavit") to
establish the Guerras' possession of the 781.11-acre
property prior to 1956.
Miguel and Rendon filed a response to the Bank's motion
for summary judgment arguing the Bank did not meet its burden
to show it was entitled to judgment as a matter of law.
Additionally, San Miguel argued issues of material fact
existed regarding the Guerras' possession of the disputed
property prior to 1956. San Miguel supported this contention
with her own affidavit, an abstract of title, and the
affidavit of the expert who prepared her abstract of title.
As previously noted, the trial court granted summary judgment
in favor of the Bank, and San Miguel and Rendon appeal.
trial court's decision to grant summary judgment is
subject to de novo review." Schlumberger Tech. Corp.
v. Pasko, 544 S.W.3d 830, 833 (Tex. 2018). In a
traditional motion for summary judgment, the movant
"bears the burden to show that no genuine issue of
material fact exists and that it is entitled to judgment as a
matter of law." Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003) (citing
Tex.R.Civ.P. 166a(c)). If the movant meets its burden, the
burden shifts to the nonmovant to raise a genuine issue of
material fact that is sufficient to defeat the summary
judgment. M.D. Anderson Hosp. & Tumor Inst. v.
Willrich, 28 S.W.3d 22, 23 (Tex. 2000). The evidence
raises a genuine issue of fact if reasonable and fair-minded
jurors could differ in their conclusions in light of all the
summary-judgment evidence. Goodyear Tire & Rubber Co.
v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). In our
review, "we take as true all evidence favorable to the
nonmovant, and we indulge every reasonable inference and
resolve any doubts in the nonmovant's favor."
Knott, 128 S.W.3d at 215.
as in this case, "the trial court's order does not
specify the grounds for its summary judgment, we must affirm
the summary judgment if any of the theories presented to the
trial court and preserved for appellate review are
meritorious." Knott, 128 S.W.3d at 216.
To Try Title
Texas Property Code states that a 'trespass to try title
action is the method of determining title to lands,
tenements, or other real property.'" Lance v.
Robinson, 543 S.W.3d 723, 735 (Tex. 2018) (emphasis in
original) (quoting Tex. Prop. Code Ann. § 22.001(a)).
"To prevail in a trespass-to-try-title action, a
plaintiff must usually (1) prove a regular chain of
conveyances from the sovereign, (2) establish superior title
out of a common source, (3) prove title by limitations, or
(4) prove title by prior possession coupled with proof that
possession was not abandoned." Lance, 543
S.W.3d at 735. Trespass-to-try-title actions "involve
detailed pleading and proof requirements." Id.
Thus, the plaintiff must recover upon the strength of his own
title and not upon the weakness of his adversary's title.
Id. at 736; see also Garza v. Garza, 297
S.W.2d 874, 875 (Tex. App.-San Antonio 1956, writ
dism'd). In the trial court and on appeal, the parties
did not address the first two methods to try title-proof of a
regular chain of conveyances from the sovereign and superior
title out of a common source-so we do not address them here.
See Stiles v. Resolution Tr. Corp., 867 S.W.2d 24,
26 (Tex. 1993) ("[A] summary judgment cannot be affirmed
on grounds not expressly set out in the motion or
response."); Tex.R.Civ.P. 166a(c) ("Issues not
expressly presented to the trial court by written motion,
answer or other response shall not be considered on appeal as
grounds for reversal.").
briefly address San Miguel's third issue contending the
Guerras could not have actually possessed the mineral estate
without production of the minerals. San Miguel's argument
fails to recognize that the Bank is claiming possession of
the mineral estate by virtue of the Guerras' possession
of the surface estate prior to severance of the two estates
in 1969. See Gulley v. Davis, 321 S.W.3d 213, 220
(Tex. App.-Houston [1st Dist.] 2010, pet. denied) ("When
adverse possession commences before a severance of the
mineral estate, the adverse possession includes both the
surface and mineral estate." (citing Rio Bravo Oil
Co. v. Staley Oil Co., 158 S.W.2d 293, 295 (Tex.
1942))). Because the surface and mineral estate were not
severed when the Bank claims the Guerras had possession of
the surface estate, actual possession of the surface estate
would also constitute possession of the mineral estate.
See McDaniel v. Williams, 429 S.W.2d 640, 642 (Tex.
App.-Tyler 1968, writ dism'd) ("It is a well
established rule of law in this state that an adverse entry
upon the surface of land extends downward and includes title
to underlying minerals where at time of entry there has been
no severance of mineral estate."). For this reason, the
Bank moved for summary judgment on the basis that the Guerras
owned the surface estate of the disputed property prior to
rule of prior possession "has generally been applied in
a case where it is shown that the plaintiff, having been in
possession of land, has been ousted by the defendant.
However, the possession relied upon must be of such nature
and quality as will reasonably support an inference of
ownership." Garza, 297 S.W.2d at 875.
Consequently, the question of actual possession, giving rise
to a claim for prior possession, will usually go to a jury.
Id. at 876. While proof of prior possession of land
is prima facie evidence of title, "[s]uch possession
must . . . be actual, and must be so clearly defined as to
give the claimant the exclusive dominion over the
property." Id. (quoting Lynn v.
Burnett, 79 S.W. 64, 66 (Tex. App.-Fort Worth 1904, no
writ)). "[B]efore the judge is authorized to take the
case from the jury [upon the issue of prior possession, ] the
evidence must be conclusive, leaving no room for doubt as to
the fact of actual possession." See Mortgage Land
& Inv. Co. v. Spears, 162 S.W.2d 1015, 1016 (Tex.
App.-San Antonio 1942, writ ref'd w.o.m.) (holding the
trial court should have submitted the question of actual
possession to the jury because the testimony of one witness
was not sufficient to prove actual possession as a matter of
law); see also Garza, 297 S.W.2d at 876; Cf.
Hash v. James, 337 S.W.2d 506, 508 (Tex. App.- San
Antonio 1960, writ ref'd n.r.e.) ("Where the
possession is established by undisputed evidence, no issue of
fact is presented for the jury.").
order to show [itself] entitled to judgment on the theory of
prior possession[, ] the [Bank] was under the burden of
showing that [its predecessor's, the Guerras, ]
possession of the [781.11-acre tract] was of such a nature
that reasonable minds could draw but one inference and that
no jury finding thereon would be required." Decuir
v. Houseman, 310 S.W.2d 591, 593 (Tex.
App.-Beaumont 1958, writ ref'd n.r.e.) (holding the
conflicting evidence regarding prior possession could cause
reasonable minds to draw different conclusions). The
determination of actual possession belongs to the jury unless
the Bank undisputedly or conclusively proved the Guerras had
actual possession. See Hash, 337 S.W.2d at 508. The
possession must be so clearly defined as to give the claimant
the exclusive dominion over the 781.11-acre tract.
Rilling v. Munoz, 344 S.W.2d 696, 697-98 (Tex.
App.-San Antonio 1961, writ ref'd n.r.e.) (noting where
the evidence is not fully developed, "the ends of
justice" would be better served by remanding the case to
the trial court).
Summary Judgment Evidence
case, the Guerra Affidavit attempts to aver to the
Guerras' possession of the property since 1932. However,
the affiant, William Thomas Guerra, Sr., was not born until
1942. The Guerra Affidavit makes conclusory references to
William's "memories" of his family grazing
cattle, mending fences, and building a cabin for ranch hands
in 1948 on a property he refers to as Los Barrosos Pasture
that contained approximately 2, 645 acres within Porcion 58.
The affidavit also contains phrases such as: "To the
best of my knowledge," when referring to the Guerra
family's cultivation and use of the property. However,
William does not attest to whether the use and cultivation of
the property occurred specifically on the 781.11-acre tract
disputed in this case. Finally, the affidavit asserts the
Guerra family presumably paid taxes on the property to the
best of William's knowledge because the taxing
authorities never interrupted their control of the property.
Pope Affidavit states Bill Pope remembered meeting ranch
hands that worked for the Guerra family who would lead the
cattle to pens and water tanks that were on what was reputed
to be the Guerra property. However, it is not clear which
portions of the Guerra property Pope is referring to.
Miguel's affidavit controverts the Guerra and Pope
affidavits, claiming San Miguel's family "has been
in possession of some, part, or all of the Property at issue
in this lawsuit since 1776." San Miguel further avers
her family has paid taxes on the property since 1951 and
disputes the Bank's abstract of title by providing her
own abstract of title and the affidavit of her expert who
prepared the abstract of title.
the Guerra and Pope Affidavits are not specific to the
781.11-acre tract, the affidavits fail to establish the
Guerras conclusively or undisputedly had actual possession of
the 781.11-acre tract of land prior to 1956. See
Decuir, 310 S.W.2d at 593. Therefore, we hold the
affidavits were insufficient to conclusively establish the
Guerras' possession was so clearly defined as to give
them the exclusive dominion over the property. See
Rilling, 344 S.W.2d at 697.
holding in this case is supported by an earlier opinion from
this court that addressed this issue. In Mortgage Land
& Inv. Co. v. Spears, 162 S.W.2d 1015 (Tex. App.-San
Antonio 1942, writ ref'd w.o.m.), this court held one
witness's loose testimony regarding actual possession was
not conclusive enough to take the question from the jury and
rule, as a matter of law, in favor of the claimant's
prior possession claim. Id. "It [was] not
enough that the evidence [was] without conflict in
establishing the facts relied on to show actual possession,
but these facts must themselves conclusively prove such
possession." Id. at 1016-17; see also
Kennedy Con., Inc. v. Forman, 316 S.W.3d 129, 138 (Tex.
App.-Houston [14th Dist.] 2010, no pet.) (holding "[t]he
record contains no summary-judgment evidence showing that
Forman actually possessed [the property] at any time, and
there is certainly no evidence proving this proposition as a
matter of law" when Forman relied solely on a
third-party's affidavit to establish his ownership of the
disputed property by prior possession (emphasis added)
(citing Land v. Turner, 377 S.W.2d 181, 186 (Tex.
the Bank is asserting actual possession based on affidavits
that are disputed and controverted by the opposing
parties. Just as the Spears court held the
undisputed and uncontroverted evidence in that case was
insufficient to conclude the claimants held actual possession
of the property as a matter of law, the controverted and
disputed affidavits in this case are also insufficient to
support a finding of prior possession as a matter of law.
conclude the Bank did not meet its burden of showing the
Guerras actually possessed the disputed property as a
matter of law. Therefore, summary judgment cannot be
affirmed based on the doctrine of prior possession.
Civil Practice and Remedies Code defines adverse possession
as the "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). "A person . . . must bring suit not later
than 25 years after the day the cause of action accrues to
recover real property held in peaceable and adverse
possession by another who cultivates, uses, or enjoys the
property." Id. § 16.027. "Generally,
to establish adverse possession, a claimant must prove: (1)
actual possession of the disputed property; (2) under a claim
of right; (3) that was adverse or hostile to the claim of
another person[, ] and that it was consistently and
continuously so for the duration of the statutory
period." Villarreal v. Guerra, 446 S.W.3d 404,
410 (Tex. App.-San Antonio 2014, pet denied). "[T]he
question of adverse possession normally is a question of
fact, so only in rare instances is a court justified in
holding that adverse possession has been established as a
matter of law." Rhodes v. Cahill, 802 S.W.2d
643, 646 (Tex. 1990). "The possession must be of such
character as to indicate unmistakably an assertion
of a claim of exclusive ownership in the occupant."
BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59, 70
(Tex. 2011) (emphasis in original). "In determining
title by adverse possession[, ] inferences are never indulged
in favor of the claimant." Haby v. Howard, 757
S.W.2d 34, 37 (Tex. App.-San Antonio 1988, writ denied).
already determined the Guerra and Pope affidavits are
insufficient to show the Guerras had actual possession of the
disputed property as a matter of law. See Rhodes,
802 S.W.2d at 645-46 (holding actual and visible possession
of the disputed property must be conclusively and
unmistakably established before a court may grant summary
judgment on a claim for title by limitations).
"[T]estimony consisting almost entirely of conclusions
of law and generalities of fact falls far short of that
clear and satisfactory proof essential to a showing of such
peaceful, adverse, exclusive and continuous possession and
use of land as will support a limitation title under the
statutes." Urschel v. Garcia, 164 S.W.2d 804,
806 (Tex. App.-San Antonio 1942, writ ref'd w.o.m.).
Thus, the Bank is not able to establish title by limitations
because they have not conclusively proved the first element
of adverse possession-actual possession of the disputed
property. See Villarreal, 446 S.W.3d at 410.
Therefore, summary judgment cannot be affirmed based on title
Law Adverse Possession/Title By Circumstantial
doctrine of title by circumstantial evidence is fundamentally
a common law adverse possession cause of action. It has also
been referred to as the "lost grant" theory.
"[The doctrine's] purpose is 'to settle titles
where the land was understood to belong to one who does not
have a complete record title, but has claimed a long
time.'" Conley v. Comstock Oil & Gas,
LP, 356 S.W.3d 755, 765 (Tex. App.-Beaumont 2011, no
pet.) (quoting Purnell v. Gulihur, 339 S.W.2d 86, 92
(Tex. App.-El Paso 1960, writ ref'd n.r.e.)). "Where
a party has asserted a claim to property in dispute for a
long period of time, has established a general reputation of
owning the land, is able to establish a complete non-claim by
the holder of apparent record title, and lack of a claim by
any other person over the same period, a court may presume
the existence of a 'lost grant' that conveyed the
property in dispute to the adverse claimant."
Haby, 757 S.W.2d at 39 (citing Purnell, 339
S.W.2d at 92).
case, the Bank has failed to conclusively establish a
"complete non-claim" by the holder of apparent
record title. In her controverting affidavit, San Miguel-a
holder of apparent record title as a descendant of Joaquin
Chapa-claims the appellants erected fences and made use of
the disputed property prior to 1956. Because "the
evidence does not establish as a matter of law the complete
non-claim of [an] apparent record holder[, ]" summary
judgment cannot be affirmed based on title by circumstantial
evidence. See Haby, 757 S.W.2d at 39 ("[T]he
court may not find as a matter of law that appellees have
demonstrated a right to title by circumstantial
evidence" when the evidence does not establish the
complete non-claim of the apparent record holder as a matter
motion for summary judgment, the Bank briefly argues the
appellants were barred from disputing title to the property
under the doctrine of res judicata because title had already
been adjudicated in favor of the Guerras in Manges v.
Guerra, 673 S.W.2d 180 (Tex. 1984). Other than citing
Manges, the Bank does not cite any other authority
to support its res judicata argument in its motion for
summary judgment or on appeal.
Manges, "Clinton Manges and several members of
the Guerra family were mineral co-tenants, with Manges
holding the executive right to all the minerals."
Manges, 673 S.W.2d at 181. "The Guerras sued
Manges for failure to exercise diligence in leasing the
minerals to third persons and for leasing a portion of the
minerals to himself at allegedly unfair terms."
Id. "The jury found that Manges had willfully
disregarded the rights of the Guerras in several specific
ways, including his failure to negotiate for mineral leases
with third persons, that Manges'[s] actions were in
willful and unconscionable disregard of the ...