Chapter 7-2 Trespass to Try Title

• Jurisdiction: United States

7-2 Trespass to Try Title

7-2:1 Overview

A Trespass to Try Title Action is the sole method of determining title to real property in Texas.²⁰ It is a purely statutory cause of action and is governed by special pleading and proof requirements.²¹ A Trespass to Try Title Action affords a legal remedy and should be distinguished from the equitable Quiet Title Action. A Trespass to Try Title Action is appropriate when multiple parties claim conflicting possessory rights to real property. A Trespass to Try Title Action cannot be used to determine rights to non-possessory mineral interests, such as royalty interests and possibilities of reverter. To recover in a Trespass to Try Title Action, the plaintiff is required to prevail on the superiority of his own title, not on the weakness of the defendant's title. The trespass-to-try-title statute, however, only applies when the claimant is seeking to establish or obtain the claimant's ownership or possessory right in the land at issue.²² A trespass-to-try-title plaintiff, in other words, "must recover upon the strength of his own title."²³ If successful, a plaintiff acquires title to the disputed property and actual damages. If properly pleaded, a defendant can recover for value of improvements.

7-2:1.1 Related Causes of Action

Action to Quiet Title, Rescission, Reformation, Slander of Title, Trespass to Real Property

MUST READ CASE

Martin v. Amerman, 133 S.W.3d 262 (Tex. 2004) (elements)

7-2:2 Elements

(1) Plaintiff must establish a prima facie right of title by proving:

• A plaintiff must establish title to the mineral estate in themselves and cannot rely on the inferiority of the defendant's claim.²⁴

(a) A regular chain of conveyances from the sovereign;

• The plaintiff must establish a land grant or patent from the state or sovereignty showing that the title vested in the original grantee or patentee and has passed by successive conveyances to the plaintiff.²⁵
• Courts strictly apply this method. A plaintiff should only utilize this method if there is no connection between the competing chains of title.²⁶

(b) A superior title out of a common source;

• The plaintiff must connect his title and the defendant's title through complete chains of title to the common source and then show that his title is superior to the one that the defendant derived from the common source.²⁷
• The rule of common source of title is one of evidence, not of estoppel. Therefore, a defendant can challenge the title to the plaintiff's alleged common source.²⁸ However, once the plaintiff establishes a common source, either by proof or agreement, the plaintiff only needs to prove good title in herself to establish a prima facie case of superior title.²⁹

(c) Title by limitation; or

• The plaintiff must meet the requirements of the three-, five-, or ten, or twenty-five year statutes of limitations.³⁰
• When adverse possession commences before a severance of the mineral estate, the adverse possession includes both the surface and mineral estate.³¹
• Once the mineral estate is severed from the surface estate, possession of the surface alone will not constitute adverse possession of minerals. Actual possession of the minerals must occur.³²
• In the case of oil and gas, this requires drilling and production of oil or gas.³³

(d) Prior possession which has not been abandoned.

• If the plaintiff's actual possession of the mineral estate was prior in time to that of the defendants' possession, a rebuttable presumption arises that the party having prior possession has a better right.³⁴

• To rebut the presumption, the defendant must prove a superior title.³⁵
• The defense that title is in a third party is not sufficient to rebut the plaintiff's title by prior possession.³⁶

7-2:3 Damages and Remedies

7-2:3.1 Judicial Declaration of Title

The primary form of relief is a judicial declaration that the plaintiff recover of the defendant the title, possession, or both.³⁷

• The judgment must describe the land.³⁸
• This title is conclusive "against the party from whom the property is recovered and against a person claiming the property through that party by a title that arises after the action is initiated."³⁹

If the plaintiff does not prove a superior right to the land, the court will enter a take-nothing judgment.⁴⁰

The effect of a take-nothing judgment is to divest the plaintiff of any claim or title to the mineral interest and to vest title to the mineral interest in the defendant.⁴¹ The scope of the take-nothing judgment is limited to the mineral interest put into issue by the parties, pleadings, and proof.⁴²

7-2:3.2 Writ of Possession

If the plaintiff recovers possession of the contested property, the court must issue a writ of possession.⁴³

• If the defendant obtains a judgment for the value of the defendant's improvements in excess of the defendant's liability for use, occupation and damages, the court may not issue a writ of possession until the first anniversary of the judgment unless the plaintiff pays to the clerk of the court for the benefit of the defendant the amount of the judgment in favor of the defendant plus interest.⁴⁴

7-2:3.3 Damages for Defendant's Use and Occupation of the Premises

A plaintiff is entitled to damages for use and occupation of the premises.⁴⁵

• When a defendant extracts oil, gas or other minerals, the method by which damages are calculated depends on whether the defendant's actions are in good faith.⁴⁶ An oil producer acts in good faith when the producer has an honest and reasonable belief in the superiority of his title.⁴⁷

• If a defendant trespasses in good faith, the measure of damages is the value of the minerals minus drilling and operating costs.⁴⁸
• If a defendant trespasses in bad faith, the measure of damages is the value of the minerals, without deduction of drilling and operating costs.⁴⁹

7-2:3.4 Damages for Special Injury to the Property

A plaintiff is entitled to recover damages for any alleged and proved special injury to the property.⁵⁰

7-2:4 Defenses

7-2:4.1 Statute of Limitations

A plaintiff can bring a...