Granted, this is not the biggest challenge to private property rights today, but understanding how adverse possession, aka the squatter’s challenge, works is useful knowledge for ranchers.
By Gary DiGiuseppe “S
QUATTER’S RIGHTS”— OR, AS THE SQUATTER’S CHALLENGE IS KNOWN LEGALLY, “adverse possession” — is a concept that goes back hundreds of years, and challenges under it come up very rarely. However,
they do emerge, and a couple of celebrated cases have been argued in Texas courtrooms in recent years. Landowners should be aware of their rights and responsibilities if physical occupation of their property is be- ing contested. Squatting has been thought of as more of an urban issue and the hous-
ing market crash of the last decade presented the spectacle of Americans squatting in their own foreclosed-upon homes. It has also been employed by social activists or political movements to force changes in property occupation policies. “I think in the last 3 years that I’ve been at Texas A&M, I’ve gotten 2
phone calls about this type of issue,” reports Dr. Tiffany Lashmet, an as- sistant professor and Texas AgriLife Extension specialist in agricultural law. “Usually, it’s agricultural land when there is concern over a squatter. One time I got a call from somebody who wanted to claim the land by squatter’s rights. So it does pop up occasionally.” The idea behind adverse possession, Lashmet says, is to encourage
people that own property to be proactive in taking care of and inspecting it. If you fail to do so and “are gone for a certain period of time and don’t notice that someone is on your land, that person then can actually gain legal title to the land through this idea of adverse possession.”
Wells v. Johnson Writing online at
agrilife.org/texasaglaw, Lashmet described a 2014
opinion by the Amarillo Court of Appeals that outlines the adverse pos- session law in Texas. Wells v. Johnson was a tangled case in which both parties laid claim to a piece of property in Hardeman County. Although the Wells family had purchased the land in 1951, Johnson
and his predecessors had used it for various enterprises since the 1960s. In 2007, Wells fi led a trespass claim. Johnson countersued, claiming
adverse possession, and a trial jury declared him to be the rightful owner of the property. However, the appeals court reversed the jury fi nding. Lashmet wrote that although the property was fenced and Johnson had
grazed cattle on it for years, “The court found that Mr. Johnson failed to prove visible appropriation and possession of the property as well as fail- ing to show consistent and continuous use.” A fence was not enough — the property had to be “designedly enclosed,”
tscra.org
March 2016 The Cattleman 93
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