Mohnke v. Greenwood 915 S.W.2d 585 (1996)
> It seems an adverse possession claim could have been successful if the attorneys were on their game. Could be argued the fence was intended to be a boundary fence because it began and ended at the corners(did not seem to be any dispute over that fact);
The problem that they were up against was that the fence was there when the Mohnkes bought their property and the presumption that it was a casual fence prevailed in the absence of any evidence that it was otherwise. It isn't that uncommon for an old fence to exist that no one can say who built it or for what purpose.
As the court noted:
>3. Even if this was an adverse possession case, the fence apparently constructed by a predecessor in title of the Plaintiffs was a casual fence and thus cannot support an adverse possession claim. Rhodes v. Cahill,802 S.W.2d 643, 646 (Tex.1990); Orsborn v. Deep Rock Oil Corp. [153 Tex. 281], 267 S.W.2d 781, 785 (Tex.1954) ("If the fence existed before the claimant took possession of the land and the claimant fails to demonstrate the purpose for which it was erected, then the fence is a casual fence.")
In Texas, an adverse possession claim based upon fencing requires a "designed enclosure" and the decision in Mohnke v. Greenwood discussed that as well.
Mohnke v. Greenwood 915 S.W.2d 585 (1996)
> I don't know how long of a common line the two neighbors had, but 87', or 0.016 acres is minutia compared to 5.5 acre propoerty. Who fights these things so adamantly?
I'd say that the key fact not to miss is that both of the parties in the case I posted were women.
There's case law for both sides of this issue.
As mentioned by others above, you need to know something about the customs and the area.
In many cases the old fence best represents the lines as originally run/marked. In many cases, it's just to keep the cattle in.
> No easy answer.
Well, one easy answer is that most Texas courts won't be interested in a cite of a Virginia case when there are lots of Texas decisions available on point.
> True. The original post did not specify any state or jusrisdiction, but did notice the state next to the name.
A pretty good clue. :>
> If the poster wanted to discuss TX only, that should have been stated in the post.
Well, the example would appear to be in Texas, not, say, Nova Scotia. I suppose one could always reply to it as if it were in Nova Scotia, though.
> "Therefore, we hold that the legal description of the parties’ adjoining properties, the maps and aerial photo of the existing fence, and the court’s ruling, provide sufficient evidence to identify the disputed property with reasonable certainty so that it may be located upon the ground."
>
> Aerial photo? I know that gets used on oysterbeds cases here, but aerial? I guess judges can use whatever they wish.
Actually, historical aerial photographs can be used as evidence of a number of things, but what was at issue in that case you linked was merely the question of sufficiency of description of the land that was subject of the suit.
Livingston v. McGlothlin 276 P.3d 1042 (2012)
> Well a recent Oklahoma case to keep in mind is :
Livingston v. McGlothlin. How could you resist a case that begins with "East Landowners' son shot West Landowners' dog"? But the long standing fence was not the boundary line.
Livingston v. McGlothlin 276 P.3d 1042 (2012)
Well, there may be hope for Oklahoma judging by this found in that decision:
>In McGlothlin I, which is now the law of the case, this Court held the fence did not create a boundary by acquiescence because there was no evidence yet produced to prove that the fence was built to divide a commonly owned unit of real property; further, that "No boundary dispute was being settled by the erection of the fence." Rather, there was "some implication in this record that the fence was erected and maintained to enclose cattle, not to delineate a boundary." Finally, Judge Reif, now Justice Reif, specially concurred for the purpose of emphasizing:
>>"…a property owner is not required to place a fence on the property line and does not give up any rights by placing a fence off the property line and along some line within the property. In my opinion, East Landowners have the additional burden of showing who built the fence for purposes of boundary by acquiescence and adverse possession." (Emphasis in original.)
Mohnke v. Greenwood 915 S.W.2d 585 (1996)
Yeah, I read the case, and I would argue there is evidence enough to overcome the presumption of a casual fence. The attorney simply did not argue or present it that way. When a fence starts and ends at undisputed corners and has a slight kink or two somewhere in the middle, I think that's strong evidence the fence was designed as an enclosure of the property.
In fact, the correct boundary solution that the court upheld seems to rely on the ends of the fence indicating the correct corners, in addition to other monuments, maps, and deeds. This is as it should be. But having admitted that, it follows the fence was designed to be on the boundary line. Even if erroneous in some sections, it was then occupied to for longer than the statutory periods, under claim of right.
If I were giving advice to Texas landowners I would tell them they better hire a land surveyor to make sure the fence stays on line, and not rely on the presumption of a casual fence. Someone is likely going to come along and be successful on an adverse possession claim of this sort.
Mohnke v. Greenwood 915 S.W.2d 585 (1996)
> When a fence starts and ends at undisputed corners and has a slight kink or two somewhere in the middle, I think that's strong evidence the fence was designed as an enclosure of the property.
But the critical fact that is missing is whose designed enclosure the fence was. If you don't know who built it or for what purpose, you're stuck with presumptions. Casual enclosures may begin and end at property corners and still be casual enclosures. A designed enclosure cannot merely connect to a casual fence, however, and use the casual fence as part of the enclosure - at least in Texas.
Mohnke v. Greenwood 915 S.W.2d 585 (1996)
> But the critical fact that is missing is whose designed enclosure the fence was. If you don't know who built it or for what purpose, you're stuck with presumptions.
It seems to me like it wouldn't matter "whose" design enclosure the fence was, if it was designed to delineate a common property line (or end-corners). If it appears to hit the property corners, it doesn't seem like a "casual" fence would happen to do that and would be strong evidence as to what it was built for. (Of course I am not real clear on 'design enclosure'....designed to enclose the property boundary?)
Not arguing here, just wondering.
Mohnke v. Greenwood 915 S.W.2d 585 (1996)
Yeah, I'm not arguing either (well maybe). Seems to me one can infer intentions from physical evidence. Isn't that why original pipes control? These inferences can overcome mere rebuttable presumptions in most jurisdictions. Of course it's possible the court in the posted case did not accurately or fully describe Texas law regarding casual fences.
Well a recent Texas case to keep in mind is :
Mohnke v. Greenwood 915 S.W.2d 585 (1996)
The real question is: "In what way is the situation any different from that decided by the Court of Appeals in Mohnke v. Greenwood?"
--
Best regards,
Kent McMillan, RPLS Austin TX
Hey Hey we're the Mohnkees!!!!:-P
Livingston v. McGlothlin 276 P.3d 1042 (2012)
> ".... East Landowners have the additional burden of showing who built the fence for purposes of boundary by acquiescence and adverse possession...."
It's this burden of proof thing that trips up the fence line surveyor.
Some Texas Fence Cases - Casual Fences & Designed Enclosures
Well, here are some Texas fence cases in which various courts discuss casual fencing vs. designed enclosures.
Osborn v. Deep Rock Oil Corp., 267 S.W.2d 781 (Tex. 1954) - A fence built and maintained by an adverse claimant to enclose a tract to use exclusively for his own purposes is held to be a "designed enclosure" that would be sufficient to give notice to the record owner of the adverse claim of ownership.
However, there is:
West Production Co. v. Kahanek, 121 S.W.2d 328, 331 (Tex. 1938) - A fence is regarded as a "casual fence" that does not constitute sufficient notice to the record owner of the adverse claim of ownership if a person other than the adverse claimant or his predecessor constructed the fence and the adverse claimant hasn't contributed to the maintenance of the fence.
and:
Rhodes v. Cahill, 802 S.W.2d 643, 646 (Tex. 1990) - Maintenance of a casual fence is insufficient to make a fence a designed enclosure that would give the record owner notice of an adverse claim of ownership unless the adverse claimant has materially enhanced or changed an existing fence erected by another.
Some Texas Fence Cases - Casual Fences & Designed Enclosures
I think the thing to take away from the Mohnke case is the importance of testimony and winning at the trial level. The appeals court seems to reluctantly uphold the decision within the limitations of their scope of review.
The reality in this case is that there was a physically marked boundary, clearly visible and used as such, coupled with substantial and continuous grazing and extensive planting of large boundary like tree lines. All this in place and uncontested for 60 some odd years.
There were no original monuments mentioned in any of the records along the line in question and none were found, other than the longstanding fence. The record line was calculated from record data and monuments found at distant locations, and staked using original stakeout procedures. The line as upheld by the court can hardly be called a retracement. Much more likely that there were some type of wood stake or stone pile set before 1930, not mentioned in the record, and used to construct a fence between. There must have been some measurement and marking at the time or the fence would not be so close to modern measurements as it is. But, none of this was mentioned by the Mohnke surveyor.
The court also found "no evidence of the purpose of construction" of the fence. Yet, there was testimony from 2 people with knowledge of the fence since the 1930's that it had "always been used to keep cattle in and to delineate the boundary". The court must really be trying to keep a straight face on this one. I mean, people could testify that a house has always been lived in and meals eaten there and this court would claim there is no evidence the house was built for the purpose of eating in it.
The key to the fence distinction is best stated "...an inclosure casually created by third persons in effecting a different purpose of their own...", and who are strangers (a predecessor in title should not be considered a stranger) to the claimant and the true owner. If that is the nature of the fence then it is a casual fence. The whole premise is based on the fact that in Texas you don't have to fence in your cattle, so you would let them graze up to any fence someone else puts up and shouldn't get adverse possession for using your neighbors grass when it's a neighborly accomodation. And the presumption is therefore that all fences in Texas are casual. That's a fine system but it seems the court has completely misconstrued it. Even if this were a casual fence in the beginning (and the evidence clearly contradicts that) it should have become a designed enclosure fence because of the rebuilding in 1961, the survey showing it as a boundary fence in 1967, and the tree plantings in the late 1960's.
This courts decision does not have the effect of carrying out the purpose of the distinction between "designedly enclosed" and "casually enclosed" lands. On the contrary, this courts interpretation only has the effect of creating instability of the land boundaries in Texas.
Thanks for posting it, it's a fascinating case.
Some Texas Fence Cases - Casual Fences & Designed Enclosures
> The key to the fence distinction is best stated "...an inclosure casually created by third persons in effecting a different purpose of their own...", and who are strangers (a predecessor in title should not be considered a stranger) to the claimant and the true owner. If that is the nature of the fence then it is a casual fence.
I think I'd put it somewhat differently. The key distinction is that fences are commonly used in connection with grazing use of land, but unless an adverse claimant has performed acts (other than grazing cattle) that would put the record owner on notice of his claim of ownership, such as maintenance of the fence or significant alteration of it, a fence is just a fence.
> The whole premise is based on the fact that in Texas you don't have to fence in your cattle, so you would let them graze up to any fence someone else puts up and shouldn't get adverse possession for using your neighbors grass when it's a neighborly accomodation. And the presumption is therefore that all fences in Texas are casual.
That's a fair statement, I think, where some adverse claim to land that has been used for grazing cattle is involved.
> That's a fine system but it seems the court has completely misconstrued it. Even if this were a casual fence in the beginning (and the evidence clearly contradicts that) it should have become a designed enclosure fence because of the rebuilding in 1961, the survey showing it as a boundary fence in 1967, and the tree plantings in the late 1960's.
The problem was that Mohnke, the adverse claimant, had bought the land in 1967, after the fence had been reconstructed, and her claim rested upon what she had done or what she could prove that her predecessor had done in connection with some adverse claim that they had made. If the predecessor had not asserted any claim other than some mistaken idea about the boundary Mohnke's claim of adverse possession rested on her own acts.
> This courts decision does not have the effect of carrying out the purpose of the distinction between "designedly enclosed" and "casually enclosed" lands. On the contrary, this courts interpretation only has the effect of creating instability of the land boundaries in Texas.
I wouldn't agree with that. What the court upheld was the principle that a fence is just a fence until the acts of an adverse claimant make it something that would put the record owner on notice of a conflicting claim. The court treated the 1967 survey of the fence as basically just a surveyor's mistake that by itself had no effect on the boundary considering that the adjoining owner remained in possession of the land under the construction of their deed.
I agree that the facts of cultivation of the land by Mohnke, or any other adverse claimant, should bolster their claim, but in this case the land at issue was a strip only about eight feet wide and I didn't get the idea that cultivation of the strip had been proven.
Some Texas Fence Cases - Casual Fences & Designed Enclosures
The key findings of the trial court were:
>11. There was no evidence submitted by Plaintiffs as to the purpose of construction of the barbed wire fence.
> 13. The fence apparently constructed by Plaintiffs' predecessor in title was a casual fence.
> 14. There was no evidence as to the purpose of construction of the barbed wire fence that Plaintiffs rely on in this case as establishing the boundary.
The appeals court noted :
> In an effort to show the purpose for which the fence was erected, appellants presented the testimony of Mr. Cydel and Mr. Hirsch, who had lived near the property since they were born in 1919 and 1932, respectively. Both men testified that they did not remember when the original fence was erected, but that it had always been used to keep cattle in and to delineate the border with the adjacent property. Mrs. Mohnke also testified that the land had always been used to graze cattle and to delineate the border. Although these witnesses testified as to how the fence had been used, no one testified that this was in fact the original purpose of the construction. In fact, no one knew who had originally constructed the fence.
I do agree that the failure to find planting of pine trees to be cultivation of the land seems a bit unusual. It may be that the trees themselves didn't look to be planted and so didn't put the record owner on notice of any adverse claim. They were just trees of a species that presumably grew naturally in the area.
