But when someone causes you harm you cannot
wait too long to fi le your lawsuit. The owners of a dairy stacked cow manure at the
edge of their property. One day when it rained very hard, some of the ma-
nure washed onto the neighbor’s property. More than a year later, the same thing happened again. The neighbor sued the dairy for causing a “nuisance.” The Texas Agricultural Code Section 251.004(a) pro-
vides that the lawsuit must be brought within 1 year of the date of when the problem fi rst arises. Specifi cally, it says that no nuisance lawsuit can
be brought against an agricultural operation that has lawfully been in operation for 1 year or more prior to the date when the lawsuit is fi led. And if the conditions or circumstances that were
complained of have existed substantially unchanged since they were established, the agricultural operation will win the lawsuit. So the critical question the courts look at in these
cases is whether the agricultural business commenced the operations complained of more than 1 year before the lawsuit was fi led. If it did, the agricultural entity wins.
Adverse possession Is it possible for someone to become the owner of
real estate without ever having a deed to it? Yes, this is possible through adverse possession. If a trespasser uses property as if he is a true owner
(when in fact he is not), and does it so anyone else can see what he is doing (open and notorious) for 10 years, then under Texas Civil Statutes Articles 5510 and 5515 he becomes the legal owner. The trespasser must claim the rights of ownership against (adverse to) the real owner for 10 continuous years. (Wilson v. Rogers, 1961 Texas Court of Civil Appeals, 343 SW.2d 309) If the true owner knows about it and gives the tres-
passer permission to use the property, then it is no longer adverse and the deeded owner is still the true owner. What if the trespasser pays rent to the true owner? Then he is no longer a trespasser and the act of paying rent recognizes that he is not claiming to be the owner. He recognizes the person to whom he is paying the rent is the true owner, hence no adverse possession.
Exclusive use and other uses Leasing the grazing rights to a ranch does not
give the tenant the exclusive use of the property. In a Texas case, the landowners signed a grazing lease with a cattleman and an oil and gas lease with an oil
96 The Cattleman September 2014
company to drill for oil. The oil company tried to enter the leased land to
drill a well and the cattleman tenant refused to let the oil company come on the land. The cattleman tenant said the drilling of a well
would interfere with his cattle. The oil company sued the cattleman. The court
ruled that the cattleman could use the leased land for grazing and the oil and gas company could use its lease to drill the well. They were separate leases and neither lease ruled out the other’s since they were not for exclusive use of the ranch property. The oil company won, with the court saying the
cattle tenant was required to allow the oil company to also have its lease and drill on the same property (Stanolind Oil & Gas Co. v. Wimberly, 1944 Texas Court of Civil Appeals 181 SW.d 942).
Damages If either party to a lease breaches the lease con-
tract, how much money can the innocent party re- cover? The usual measure of damages is the amount that would be needed to return the innocent party to the position he would have held had the breach not occurred. This could include what it would cost the tenant
to lease similar land to graze his cattle, or the actual money cost suffered by the landlord to repair the dam- ages caused by the tenant, etc. The innocent party can usually sue for either (or both) breach of the lease contract and the wrongful conduct of the other party. When there is a breach of the lease contract, Texas courts have generally declined to award the landlord punitive damages as punishment to the wrongdoer even for the tenant’s intentional misconduct. Weber v. Domel, 2001 Texas Court of Appeals 48 SW.3d 435. However, if the lawsuit had alleged intentional mis-
conduct of a severe wrong, the innocent party might receive punitive damages. The law involved in leasing property can become
quite complicated. Most of the examples here relate to the State of Texas. Other states follow similar practices, but not exactly. The safest thing to do, as either a tenant or landlord,
is to see your lawyer and have him or her write up a good lease to protect you in your particular needs. While a handshake used to be all it took, we are sad to say those days are gone. Be careful, get a lawyer. It has become just another cost of doing good business today.
thecattlemanmagazine.com
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