West Harbour, LLC v. Orleans Harbour Homeowners Association, Inc.

Reversed and Rendered in Part, Reversed and Remanded in Part, and
Memorandum Opinion filed November 21, 2024

In The

Fourteenth Court of Appeals

NO. 14-23-00249-CV

WEST HARBOUR, LLC, Appellant
V.
ORLEANS HARBOUR HOMEOWNERS ASSOCIATION, INC., Appellee

On Appeal from the 459th District Court
Travis County, Texas
Trial Court Cause No. D-1-GN-21-002835

MEMORANDUM OPINION

Appellant West Harbour, LLC appeals the judgment in favor of appellee
Orleans Harbour Homeowners Association, Inc. (the Association).1 In three issues,
West Harbour contends that: (1) the evidence is legally and factually insufficient to

1
This case is before this court as a transfer case from the Third Court of Appeals in Austin
pursuant to a docket-equalization order issued by the Supreme Court of Texas. See Tex. Gov’t
Code §73.001(a). Because this is a transfer case, we apply the precedent of the Third Court of
Appeals to the extent it differs from our own. See Tex. R. App. P. 41.3.
support the jury’s finding of an easement by estoppel in favor of the Association; (2)
the evidence is legally and factually insufficient to support the jury’s finding that the
Association adversely possessed a part of West Harbour’s property; and (3) the trial
court erred in granting the Association’s plea to the jurisdiction. We reverse and
render in part and reverse and remand in part.

BACKGROUND

West Harbour and the Association are neighbors with a common boundary
line. West Harbour owns the property referred to herein as Lot 35, while the
Association owns the property referred to as Lot 34. In the 1950s, the prior owners
of Lot 34 built a peninsula extending into the Colorado River. By the 1980s, the
peninsula was largely underwater, and the Association sought to repair the peninsula
and its wooden bulkhead. The Association considered two options. The first would
involve significant excavation to remove existing concrete behind the visible
wooden bulkhead on Lot 34. Though this option would be more costly, the entire
peninsula would remain on Lot 34. The second was to build a new wall to the north
of the existing wooden bulkhead, but because this would encroach upon Lot 35, the
Association decided it needed permission from the owners of Lot 35. The second
option would also save the Association money in construction costs and result in a
more substantial peninsula.

The then-owners of Lot 35 and the Association agreed the second option was
the best course of action, and a “Memo of Meeting” drafted by the Association’s
engineer was filed in the Travis County property records. According to the memo,
the then-owners of Lot 35 “agreed that the most reasonable course of action was to
build the new wall to the north of the existing wood bulkhead and that [they] would
be concerned if [the Association] began excavation behind the wood bulkhead to

2
remove concrete debris.” The Lot 35 owners also indicated that the Association
“could construct [the new bulkhead] without resistance or obstruction from them.”

With the new bulkhead, the Association “reclaimed a substantial portion of
land that had been underwater for both Lots 34 and 35.” After completing
construction, the Association enjoyed use of the entire peninsula for recreation,
fishing, and launching kayaks and canoes. Over time, the Association added
landscaping, furniture, crushed granite, and a firepit to the peninsula.

In the 1990s, the Association built a cinderblock fence along what it believed
to be the property line between Lot 34 and Lot 35. In 2014, the Association built a
new wooden fence, “slightly moved due to a new survey.” Though the Association
did not intend to encroach upon Lot 35 with the construction of either fence, it
acknowledges that a portion of the property enclosed by the new fence (referred to
herein as “the Driveway Tract”) does cross the Lot 35 boundary line.

In 2018, West Harbour purchased Lot 35, intending to develop the property
into five single-home villas. To obtain municipal approval, West Harbour needed to
plant vegetation and trees on Lot 35 to improve the “impervious cover ratio” in
accordance with City of Austin regulations. West Harbour began landscaping its
portion of the peninsula and sought to add “mitigation plants to the reclaimed surface
at Lot 35’s south boundary with the Association’s property running along the
peninsula, none of which would interfere with the Association[’s] access to and
enjoyment of its peninsula.” West Harbour also removed old cinderblocks on Lot
35’s side of the Association’s wooden fence and installed planter boxes.

Additionally, West Harbour sought to install a low-profile ornamental fence
on Lot 35’s boundary along the peninsula “envisioned as a one-to-two-foot-high
fence––to discourage use (and potential liability for West Harbour) by persons
trespassing on the reclaimed surface directly from the [Colorado River].”
3
The Association disapproved of West Harbour’s plan to make changes to the
Lot 35 portion of the peninsula (Tract 1 in the survey below) and the Driveway Tract
(Tract 2 in the below survey)2 and filed suit.

2
Tract 2 is a very narrow triangular tract.

4
The Association’s lawsuit asserted claims for declaratory relief, to quiet title,
and for trespass. Specifically, concerning the peninsula, the Association sought a
declaration that (1) the Association possessed an easement by estoppel or
prescription providing exclusive easement rights to access and use the portion of the
peninsula encroaching onto West Harbour’s property (Tract 1) and (2) West Harbour
has no legal right to interfere with or exclude the Association or its members from
the use of any portion of the peninsula. Alternatively, the Association argued that it
had acquired title to the peninsula via adverse possession and sought a judgment
removing the cloud on the Association’s title and quieting title to the peninsula. The
Association likewise claimed that it had adversely possessed the Driveway Tract and
sought a judgment removing the cloud on the Association’s title and quieting title to
the Driveway Tract. Lastly, the Association’s petition sought (1) a declaration that
the Association has title to and a fee simple interest in land south of the Holt Carson
boundary line “undisputedly owned by [the Association]” and (2) an injunction
ordering West Harbour to remove all encroachments installed south of the boundary
line.3
West Harbour answered the Association’s suit, asserting a general denial,
specific denials, specific admissions, and affirmative defenses, and claiming that the
Association lacked standing because it was not a party, successor-in-interest, or
third-party beneficiary to the original agreement memorialized in the memo of
meeting. The answer also asserted a counterclaim, seeking numerous declarations
and reasonable and necessary attorney’s fees and expenses. West Harbour later
amended its counterclaim to seek the following declarations:

3
The Association also sought and received a temporary restraining order prohibiting West
Harbour from entering or accessing the disputed section of the peninsula or adding, removing,
damaging, or otherwise disturbing any fixtures or property on the peninsula.

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1. The true and correct location of the boundary between Lot 35 . . .
and Lot 34 . . . is the stated and called boundary . . . as specifically
shown on the Holt Carson survey . . . .

2. West Harbour is entitled to the right to access and to use its land
known as Lot 35, as specifically shown on the Holt Carson
survey . . . to the exclusion of [the Association] . . . .

3. [The Association] holds no easement over any part of Lot 35, as
specifically shown on the Holt Carson survey . . . .

4. [The Association] does not own any portion of “Lot 34.”

5. [The Association] does not hold title to nor own any portion of Lot
35, as specifically shown on the Holt Carson survey . . . .

6. West Harbour, LLC, owns Lot 35 as specifically shown on the Holt
Carson survey . . . including all portions of Lot 35 contained within
the surveyed boundary which extends along what is referred to as
the peninsula.

7. All encroachments on Lot 35, as specifically shown on the Holt
Carson survey . . . not removed voluntarily by any owner of Lot 34
may be removed without further notice.

The Association filed a plea to the jurisdiction, arguing that the trial court
lacked subject matter jurisdiction over West Harbour’s claim for a declaration
concerning the true and correct boundary line, because the location of the boundary
line was not in dispute. West Harbour argued that the Association had disputed the
boundary line throughout the pendency of its suit and had only acquiesced to the
boundary line in its plea to the jurisdiction. West Harbour sought a judgment on its
declaratory judgment claim, based on the Association’s admission. Following a
hearing, the trial court granted the plea to the jurisdiction, and the case proceeded to
trial.

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Ultimately, the jury found in favor of the Association. Under an easement-by-
estoppel theory, the jury found the Association has an easement over Lot 35’s
peninsula surface without unreasonable interference or exclusion by West Harbour.
The jury also found that the Association held the Driveway Tract “in peaceable and
adverse possession for a period of at least ten years before June 18, 2021.” Within
the jury charge, the “Disputed Driveway Strip” was defined as “the portion of Lot
35 on which the [Association] constructed and maintain a fence and driveway and
over which the [Association] claim[s] ownership.”

The final judgment rendered by the trial court awarded the Association an
easement over the “Peninsula Strip” “for general recreational purposes” and found
that West Harbour “has no legal right to unreasonably interfere with or exclude” the
Association or its members from “the use of any portion of the Peninsula Strip.” The
final judgment also awarded the Association fee simple title to the “Driveway Strip
described as ‘Tract 2’ in the attached survey.” The judgment included a survey (the
Delta Land survey, pictured above) and metes-and-bounds descriptions of each tract
in dispute. This appeal followed.

EASEMENT BY ESTOPPEL

In its first issue, West Harbour contends that the evidence is legally and
factually insufficient to support an easement by estoppel in favor of the Association
as to the “reclaimed surface of Lot 35 running along the north edge of the peninsula.”

A. General Legal Principles

“Evidence is legally insufficient to support a jury finding when (1) the record
discloses a complete absence of evidence of a vital fact; (2) the court is barred by
rules of law or of evidence from giving weight to the only evidence offered to prove
a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere

7
scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact.”
Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 613 (Tex. 2016). In
reviewing whether legally sufficient evidence supports a finding, we consider
evidence favorable to the finding if a reasonable factfinder could and disregard
evidence contrary to the finding unless a reasonable factfinder could not. Id. If there
is more than a scintilla of such evidence, then the evidence is legally sufficient. Id.

A jury verdict that rests on legally sufficient evidence may nevertheless be
defective on factual sufficiency grounds. “When reviewing an assertion that the
evidence is factually insufficient to support a finding, a court of appeals sets aside
the finding only if, after considering and weighing all of the evidence in the record
pertinent to that finding, it determines that the credible evidence supporting the
finding is so weak, or so contrary to the overwhelming weight of all the evidence,
that the answer should be set aside and a new trial ordered.” Id. at 615. Before
reversing on factual sufficiency grounds, this court is obligated to detail the relevant
evidence and “state in what regard the contrary evidence greatly outweighs the
evidence in support of the verdict.” Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242
(Tex. 2001) (internal quotations omitted). The proper remedy when a verdict is
factually insufficient is reversal and remand for a new trial. Sw. Bell Tel. Co. v.
Garza, 164 S.W.3d 607, 626 (Tex. 2004).

Easement by estoppel (also known as estoppel in pais) is an equitable doctrine
whereby courts may, in certain circumstances, prohibit a property owner from
contesting the existence of an easement on his property where the owner has led
another property owner to rely to his detriment on the easement’s existence. See
Storms v. Tuck, 579 S.W.2d 447, 451 (Tex. 1979); Scott v. Cannon, 959 S.W.2d 712,
720 (Tex. App.—Austin 1998, pet. denied). The basic elements for creation of an
easement by estoppel are: (1) a representation communicated to a promisee; (2) the

8
communication is believed; and (3) reliance on the communication. Scott, 959
S.W.2d at 720. The Third Court of Appeals has also imposed an additional
requirement to establish an easement by estoppel—“a vendor/vendee relationship.”
Id. (“[W]e believe after reviewing the cases, that the law requires a vendor/vendee
relationship to establish an easement by estoppel.”) (citing Drye v. Eagle Rock
Ranch, Inc., 364 S.W.2d 196, 209–10 (Tex. 1962); Wilson v. McGuffin, 749 S.W.2d
606, 610 (Tex. App.—Corpus Christi 1988, writ denied)).4

B. Scott Requires a Vendor/Vendee Relationship

West Harbour first argues that the Association’s easement-by-estoppel
argument fails because the Association did not and cannot prove a vendor/vendee
relationship—an additional requirement for an easement by estoppel imposed by the
Third Court of Appeals. See Scott, 959 S.W.2d at 720. As this is a transfer case, we
must apply the precedent of the Third Court of Appeals. See Tex. R. App. P. 41.3.

In response, the Association argues that the vendor/vendee language in Scott
is dicta because “[t]he Third Court ultimately determined that no representations
were made by the owners or their predecessors.” See id.; see also S. Plains Lamesa
R.R., Ltd. v. Heinrich, 280 S.W.3d 357, 361 n.1 (Tex. App.—Amarillo 2008, no pet.)
(“However, [Scott] was decided because the record did not conclusively show any
affirmative representations as to the existence of an easement. Therefore, the
language regarding a vendor/vendee relationship is dicta.” (internal citations

4
Other courts of appeals considering the issue have rejected the imposition of an additional
requirement. See Murphy v. Long, 170 S.W.3d 621, 628 (Tex. App.—El Paso 2005, pet. denied)
(“Because both [Texas supreme court decisions relied on in Scott] involved a claim by a purchaser
of property, it would have been natural for the court to state the doctrine in terms of a purchaser.
We do not read [those Texas supreme court decisions] as holding that an easement by estoppel can
never exist unless there is a vendor-vendee relationship between the parties.”); S. Plains Lamesa
R.R., Ltd. v. Heinrich, 280 S.W.3d 357, 362 (Tex. App.—Amarillo 2008, no pet.) (“[A]
vendor/vendee relationship is not required to prove that an easement was granted by
estoppel . . . .”).

9
omitted)). The Association asks us to seize upon Scott’s alternative reason for its
conclusion and disregard the vendor/vendee holding as dicta. However, considering
the language of Scott and later decisions from the Third Court of Appeals discussing
or affirming Scott, we reject the Association’s invitation to do so.

The Third Court of Appeals has addressed Scott’s vendor/vendee holding on
two subsequent occasions and has declined to alter or narrow the holding in either
case. In Cambridge Holdings, Ltd. v. Cambridge Condominium Council of Owners,
No. 03-08-00353-CV, 2010 WL 2330356 (Tex. App.—Austin June 11, 2010, no
pet.) (mem. op.), the court noted Scott’s holding “that a vendor-vendee relationship
must exist to establish an easement by estoppel,” and although it acknowledged that
“some of [its] sister courts [had] since questioned that holding,” it nevertheless
declined to revisit the issue, though expressly urged to do so by the appellant. Id. at
*16–17.

Later, in Pewitt v. Terry, No. 03-12-00013-CV, 2012 WL 4052135 (Tex.
App.—Austin Sept. 13, 2012, no pet.) (mem. op.), the court reaffirmed Scott’s
holding and rejected the appellee’s claims of an easement by estoppel based on the
lack of evidence of a vendor/vendee relationship. Id. at *4. 5 (“[T]his Court has held
that a vendor/vendee relationship must exist between the party making the
representation and the party claiming to have relied on it” to establish an easement
by estoppel).

The Association asks this court to limit the holding of Scott to cases in which
no affirmative representations are made. However, the Scott decision was not so
narrowly applied, and the Association points to no cases in which the Third Court of

5
Pewitt also noted that the appellee presented no evidence of any representations relied
upon to their detriment in concluding that the evidence presented at the temporary injunction
hearing did not support a finding of an easement by estoppel. Pewitt v. Terry, No. 03-12-00013-
CV, 2012 WL 4052135, at *4 (Tex. App.—Austin 2012, no pet.) (mem. op.).

10
Appeals has so limited the Scott holding. Rather, later cases expressly acknowledge
the breadth of the Scott holding. See Cambridge Holdings, Ltd., 2010 WL 2330356,
at *17; Pewitt, 2012 WL 4052135, at *4–5; see also Murphy v. Long, 170 S.W.3d
621, 628 (Tex. App.—El Paso 2005, pet. denied) (“[T]he Third Court of Appeals is
the only court to hold that the doctrine never applies outside of the vendor-vendee
relationship.” (emphasis added)); Weddington v. Vaughn, No. 07-24-00120-CV,
2024 WL 3588585, at *2 (Tex. App.—Amarillo July 30, 2024, no pet.) (mem. op.)
(“Since Scott was decided, the Third Court has reiterated that there can be no
easement by estoppel unless a vendor-vendee relationship exists between the
plaintiff and defendant.”).

“Transferee courts must follow whatever law binds the transferor court, even
if there is reason to suspect that a transferor court might disregard that law.” Mitschke
v. Borromeo, 645 S.W.3d 251, 258 (Tex. 2022). It is undisputed there is no
vendor/vendee relationship between West Harbour and the Association. See Scott,
959 S.W.2d at 720. As a result, we sustain West Harbour’s first issue.

C. Whether the Association Otherwise Proved Easement by Estoppel

As we have determined that Scott’s vendor/vendee holding is dispositive in
this transfer case, the Association asks us to indicate whether we would have decided
the easement-by-estoppel question differently if not bound by Third Court of
Appeals precedent. See Tex. R. App. P. 41.3 (“The court’s opinion may state whether
the outcome would have been different had the transferee court not been required to
decide the case in accordance with the transferor court’s precedent.”).

Although this court has not directly addressed Scott’s vendor/vendee
relationship holding, our case law suggests a reluctance to impose such a
requirement. See Stallman v. Newman, 9 S.W.3d 243, 246–47, 248 n.2 (Tex. App.—
Houston [14th Dist.] 1999, pet. denied) (noting Scott’s vendor/vendee requirement
11
and concluding that “where, as here, there is no vendor/vendee relationship, an
easement by estoppel cannot arise from passive acquiescence alone” but requires
some affirmative misrepresentation; however, court declined to hold that easement
by estoppel could never arise without vendor/vendee relationship); Mack v. Landry,
22 S.W.3d 524, 530 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (noting
Stallman’s “reluctance to hold that a vendor/vendee relationship is a necessary
prerequisite to an easement by estoppel where a party has relied to his detriment
upon an affirmative misrepresentation”).

If this court decided this case under its own precedent, we would not need to
reach the question of whether a vendor/vendee relationship is required to establish
an easement by estoppel because the “general recreational” easement awarded to the
Association was not supported by legally sufficient evidence. As a result, we would
reverse and render judgment in favor of West Harbour on this claim.

West Harbour argues that, aside from the agreement of the Lot 35 owners that
the Association could construct the new bulkhead and peninsula “without resistance
or obstruction,” there were no representations regarding whether the Association
could use any part of the peninsula on Lot 35’s side for “general recreation.” West
Harbour argues that quiet acquiescence to the use of the peninsula for recreation is
never enough to grant the awarded “recreational” easement by estoppel where there
is no vendor/vendee relationship. The Association identifies only the “express
permission by the owners of Lot 35” from the Memo of Meeting as establishing the
“representation” element of their claim.

We agree with West Harbour that the representation that the Association
“could construct the new [bulkhead] north of the existing wooden bulkhead without
resistance or obstruction from [it] (or any other owners of Lot 35)” was not a grant
of permission to the Association to use Lot 35’s portion of the peninsula for

12
“recreational purposes.” There is no evidence that any Lot 35 owners represented or
acted in a way to support the awarded easement by estoppel. There is no evidence
that the Association ever discussed with the then-owners of Lot 35 its intention to
use Lot 35’s portion of the peninsula (once rebuilt) for general recreational purposes.
See Lakeside Launches, Inc. v. Austin Yacht Club, Inc., 750 S.W.2d 868, 872 (Tex.
App.—Austin 1988, writ denied) (“In order to create an easement by estoppel,
something must be said or done by the owner of the servient estate at the time of the
grant of the dominant estate that induces the acceptance of the grant.”)

Like in Scott, we cannot say on this record as a matter of law that the Lot 35
owners affirmatively represented to the Association that an easement existed to use
the peninsula once constructed. See Scott, 959 S.W.2d at 720–21. Rather, the Lot 35
owners gave express consent to the Association to construct the peninsula without
obstruction or resistance. At most, there was a passive acquiescence on the part of
the Lot 35 owners that was relied upon by the Association for recreational use of the
peninsula after it was constructed. See id. Such acquiescence, no matter for how
long, does not estop West Harbour from denying the Association’s claim of an
easement by estoppel. See id; see also Stallman, 9 S.W.3d at 247 (stating that though
Stallmans gave Newman permission to use road, permissive use was inconsistent
with Newman’s claim of “legal right to use road”; court held that without
vendor/vendee relationship, easement by estoppel cannot arise from passive
acquiescence alone); Tice v. Hunt, No. 11-08-00099-CV, 2010 WL 1948602, at *6
(Tex. App.—Eastland May 13, 2010, no pet.) (mem. op.) (holding no easement by
estoppel where appellant failed to present any evidence of representation element;
evidence showing permission to move road did not amount to representation that
appellant would receive easement in road, as “permission implies the right to revoke
that permission”).

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ADVERSE POSSESSION

In its second issue, West Harbour argues the evidence is legally and factually
insufficient to support the judgment’s award of the Driveway Tract to the
Association in fee simple based on the jury’s finding of adverse possession. West
Harbour raises several sufficiency arguments concerning the evidence supporting
the various elements of adverse possession. West Harbour also argues that the
evidence does not support the trial court’s judgment because the survey incorporated
by the judgment does not reflect the agreed-to boundary line or the portion of land
the Association claims it has adversely possessed.

A. General Legal Principles

Adverse possession is “an 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 § 16.021(1).
To succeed on an adverse possession claim under section 16.026(a), the following
elements must be established by a preponderance of the evidence: (1) actual and
visible possession of the disputed property; (2) that is adverse and hostile to the claim
of the owner of record title; (3) that is open and notorious; (4) that is peaceable; (5)
that is exclusive; and (6) involves continuous cultivation, use, or enjoyment for ten
years. Kazmir v. Benavides, 288 S.W.3d 557, 561 (Tex. App.—Houston [14th Dist.]
2009, no pet.); see also Tex. Civ. Prac. & Rem. Code § 16.026(a). The ten-year
period begins to run on the date the adverse possessor actually and visibly
appropriates the claimed land. Kazmir, 288 S.W.3d at 561. Whether adverse
possession has been established is usually a question of fact. Id.

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B. The Association’s Fence and the Driveway Tract

In the 1990s, the Association built a fence on what it believed to be the
property line between Lot 34 and Lot 35 to “demark and delineate the property” and
“indicate[] the private property line.” This wooden fence rested on a low cinderblock
barrier that supported the fence. The fence remained on the edge of the Association’s
driveway from the “1990s” to 2014. In 2014, the Association obtained a survey
which revealed that the fence was not entirely on the property line and encroached
upon Lot 35 in certain locations. The Association proceeded to replace the fence in
2014, but moved it from its original location as a result of the new survey—“slightly
on the south side of that existing fence, probably one or two feet.” After the
Association moved the fence, the original cinderblock supports remained on West
Harbour’s side of the fence. West Harbour removed the cinderblocks and installed
planter boxes. 6

Regarding the fence, the Association’s representative, James Welch, testified
that no one other than the Association has “ever used the land south of that fence
line in all of the 30-plus years” he has lived on Lot 34. The fence is nine feet high
and has signs that indicate the driveway is for parking for residents and their guests
only.

Neither the judgment nor the parties is precise as to what portion of the
Driveway Tract is at issue. The jury charge defined the “Disputed Driveway Strip”
as “the portion of Lot 35 on which the [Association] constructed and maintain[ed] a
fence and driveway over which the [Association] claim[s] ownership.” The
judgment in turn awarded to the Association “fee simple title to the Driveway Strip

6
Welch testified that although he found it “rather disturbing” that West Harbour would
tear the cinderblocks out without asking, now that West Harbour has installed planter boxes, “[i]t
doesn’t seem neighborly or reasonable to ask someone to tear that out. We’re not actively using
that one or two feet of property.”

15
described as ‘Tract 2’ in the attached survey labeled as Exhibit A, said survey being
the same survey admitted into evidence at trial as PX 15.” However, the survey
attached to the trial court’s judgment is not the survey stipulated to by the parties—
the parties stipulated to the boundary line set forth in the Holt Carson survey, but the
trial court attached the Delta Land survey to its judgment.

The Association attempts to clarify by conceding that it does not seek any
portion of Lot 35 previously enclosed by the old fence (delineated by the
cinderblocks) which is now north of the 2014 wooden fence. The Association
contends that it is concerned only with any portion of Lot 35 encroached upon by
the new 2014 fence.

C. Intent

First, West Harbour argues that because the Association admitted it “did not
intend to encroach on Lot 35 when it built the cinderblock wall” it has failed to prove
a necessary element of its claim for adverse possession. West Harbour compares this
case to Ellis v. Jansing, wherein the Supreme Court of Texas held that “[m]ere
occupancy of land without any intention to appropriate it will not support the statute
of limitations. . . . [Possession] cannot be adverse unless accompanied by the intent
on the part of the occupant to make it so.” 620 S.W.2d 569, 571–72 (Tex. 1981).
Ellis is distinguishable from the present case for several key reasons. First, the two
adjoining lots in Ellis originally shared a common owner. Id. at 569. Before the lots
were divided, the common owner erected a concrete retaining wall, topped by a
chain-link fence, which was the only barrier or obstruction ever built on the land
(neither lot was fenced by the subsequent owners). Id. at 569, 571. Ultimately, the
Jansings, as later owners of Lot 3 (west of Lot 4) claimed adverse possession of a
fifteen-foot easement between the two parcels, as well as the three-foot strip of land
between the easement and the concrete retaining wall (both the easement and the

16
three-foot strip were on Lot 4’s side of the boundary line). Id. at 570–71. The
Jansings essentially claimed all the land on their side of the boundary up to the
concrete wall. Id. The Jansings’ predecessor in title testified that though he believed
the wall delineated the boundary line, he did not intend to claim “any property owned
by the abutting property owners.” Id. at 571.

Thus, in Ellis, the party claiming adverse possession was not (as here) the
party erecting the fence with some intention to keep his neighbor out. Id. The adverse
possessors in Ellis never erected any fence or obstruction, or otherwise used the land
in a manner inconsistent with or hostile to their neighbor’s ownership. Id.

This case is more akin to Mason Building Ass’n of Houston, Inc. v.
McWhorter, 177 S.W.3d 465 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
McWhorter concerned a fence line between 32 Pinedale and the Masonic Building
Association (MBA). Id. at 468. 32 Pinedale consisted of three sections: the front,
middle, and rear. Id. The front section was bounded by a hedge, the middle by an
older wooden fence, and the rear by a newer wooden fence. Id. The middle section
of fence was built by a prior owner in 1985. Id. The McWhorters added the newer
section of fence along the rear of the property in 1993, shortly after purchasing the
property. Id. at 469. They also planted new shrubs along the front section where
older shrubs had died. Id. The McWhorters asked the MBA for permission to plant
the shrubs as “a continuation of the boundary line between [the] two properties,” and
the MBA agreed and shared in the expenses. Id. Eventually, a dispute arose after the
MBA learned that the McWhorters’ fence encroached on the MBA’s property, and
the MBA sought a permanent injunction requiring removal of the fence and other
encroachments. Id. In response, the McWhorters claimed adverse possession of the
disputed property for more than ten years. Id. The jury found for the McWhorters,
and the MBA appealed. Id. at 470.

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On appeal, the First Court of Appeals considered whether the evidence was
sufficient to support a finding of intent to appropriate. Id. at 472. In answering that
question in the affirmative, the court distinguished Ellis and held as follows:

Here, for over ten years, the MBA did not assert its legal right to the
disputed property, and evidence exists that the predecessors in title
intended to claim the property as their own. All the parties involved—
the MBA, the McWhorters, the predecessors in interest, and [a]
neighbor [who testified]—believed that the fence line was the boundary
between the two properties. Although the McWhorters did not “intend
to take” the MBA’s property because they thought that they rightfully
owned the land, the [prior owners of 32 Pinedale] and the McWhorters
intended to use the property exclusively as their own—and did use it to
the exclusion of the MBA with respect to the middle section. Moreover,
even though they may not have consciously intended to deprive the
MBA of its title to the land, both [of the prior owners of 32 Pinedale]
intended to convey the disputed land to their successor in interest. . . .
The jury could have concluded, based on the evidence of the hostile
fence that excluded use of the land by the MBA, and the evidence of
the predecessors’ intent to convey the area within it to a third party, that
the predecessors in title did indeed intend to exercise rights to the
property that were inconsistent with that of the true owner.
Id. at 474. The court ultimately held that legally and factually sufficient evidence
supported the jury’s finding of adverse possession of the middle section (enclosed
by the older fence) for the statutory period, but not the hedge portion or rear section
bounded by the new fence.7 Id. at 474–76.

Similarly here, although the Association testified to a lack of intent to
encroach upon Lot 35, the Association built a fence to “demark and delineate the

7
As to the rear section along the garage, the court held that the McWhorters had not
adversely possessed that section because “neither a fence nor any other sort of obstruction
separated the garage section from the remainder of the MBA’s property for the requisite ten years.”
Masonic Bldg. Ass’n of Hous., Inc. v. McWhorter, 177 S.W.3d 465, 475 (Tex. App.—Houston [1st
Dist.] 2005, no pet.). Concerning the hedge section, the court concluded that even if a hedge could
constitute evidence of a permanent, hostile use, the hedge at issue did not exist for the requisite
ten-year period. Id. at 476.

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property” and “indicate the private property line.” No one, other than the
Association, had access to any property south of the fence. When the fence was
replaced, the Association did not consult the owners of Lot 35 or anyone else for
permission, because the Association believed the fence was on its property. Further,
the nine-foot fence bears signs stating that parking is for “residents and guests only.”

The Texas supreme court has held that hostile use does not require an intention
to dispossess the rightful owner, or even knowledge that there is one. See Tran v.
Macha, 213 S.W.3d 913, 915 (Tex. 2006) (citing Calfee v. Duke, 544 S.W.2d 640,
642 (Tex. 1976)). What is required is “an intention to claim property as one’s own
to the exclusion of all others.” Id. The Association’s use of the disputed Driveway
Tract within its fence (first enclosed by the old fence, and still enclosed by the new
fence) was to the exclusion of West Harbour’s use of the land for more than ten
years. See McWhorter, 177 S.W.3d at 474. Thus, we hold that the Association
presented legally and factually sufficient evidence of intent to appropriate the
Driveway Tract. 8

D. Actual, Visible Appropriation

West Harbour also argues that the evidence is insufficient to support a finding
of adverse possession because the cinderblock wall encroachment was “too slight”
to commence the statutory period of limitations. Stated differently, West Harbour
contends that the “less than two-foot-wide, approximately five-foot-long
encroachment on Lot 35 was not a visible appropriation of a nature sufficient to give
[it or prior owners of Lot 35] any notice” of adverse possession.

8
Again, the Association concedes it does not claim adverse possession of the strip of land
between the now-removed cinderblocks and the 2014 fence.

19
West Harbour’s argument focuses on the size of the parcel of land the
Association seeks to adversely possess. In support of its argument, West Harbour
points us to McAllister v. Samuels, 857 S.W.2d 768 (Tex. App.—Houston [14th
Dist.] 1993, no pet.). In McAllister, this court determined as a matter of law that a
nine-inch encroachment on a neighboring lot, delineated by a fence, was “so slight
as to be insufficient to put the Samuels on notice of actual, visible appropriation of
their land.” Id. at 777. The encroachment here is 1.62 feet wide, roughly twice as
large as the nine-inch encroachment in McAllister.9 We decline to hold, as a matter
of law, that such an encroachment by a nine-foot fence is so slight as to be
insufficient to put West Harbour on notice of actual, visible appropriation of its land.
See also Levy v. Leach, No. 14-19-00843-CV, 2021 WL 4165199, at *7 (Tex.
App.—Houston [14th Dist.] Sept. 14, 2021, no pet.) (mem. op.) (distinguishing
McAllister where fence encroached over eight feet onto adjoining property and
enclosed roughly 314 feet; noting that encroachment occurred in area neighbors
passed on daily basis and fence was “very, very obvious”). We determine that
reasonable and fair-minded jurors could find a visible appropriation under these
circumstances, and this finding is not so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust. We conclude that legally and factually
sufficient evidence supports such a finding and overrule West Harbour’s second
issue in this regard.

Lastly¸ West Harbour argues that the Association cannot meet its burden to
show adverse possession of the strip of land between the original cinderblock wall
and the new fence because it “abandoned” that land before the requisite ten-year

9
The Delta Land survey states that the Driveway Tract is 66 square feet or 0.0002 acres.
The record does not indicate the square footage of the tract using the Holt Carson boundary line.

20
possession period. We have repeatedly noted the Association’s concession on this
point. We therefore overrule this portion of West Harbour’s second issue as moot.

E. The Judgment’s Description of the Adversely Possessed Property

Regardless of whether the Association sufficiently demonstrated the requisite
intent (or any of the other elements of adverse possession), it also needed to prove
exactly what portion of West Harbour’s land it adversely possessed. West Harbour
argues that the record evidence does not support the trial court’s judgment because
the Association’s expert based his testimony on the Delta Land survey’s common
boundary line, not the Holt Carson survey’s boundary line stipulated to by the
parties. West Harbour further argues that the trial court’s judgment is “fatally
flawed” due to its incorporation of the Delta Land survey’s description of the
Driveway Tract because that description does not comport with the evidence
presented at trial.

The judgment in an adverse possession case must identify the land with
“reasonable certainty” such that an officer charged with the duty of executing a writ
of possession could locate the property without exercising judicial functions. Zobel
v. Slim, 576 S.W.2d 362, 369 (Tex. 1978); see also Gilbreath v. Yarbrough, 472
S.W.2d 185, 189 (Tex. App.—Tyler 1971, writ ref’d n.r.e.) (stating that test for
sufficiency of description is whether judgment so identifies land that officer charged
with duty of executing writ of possession can go on ground and identify it with
assistance of competent surveyor). A judgment may refer to other writings in
identifying the land in question. See Rinn v. Wennenweser, No. 01-07-00763-CV,
2008 WL 2611921, at *2 (Tex. App.—Houston [1st Dist.] July 3, 2008, no pet.)
(mem. op.) (citing Greer v. Greer, 191 S.W.2d 848, 849 (Tex. 1946)). In reviewing
a judgment for sufficiency of property description, Texas law does not require us to
scrutinize the conveyance with a view to defeat it; instead, “every reasonable

21
intendment will be made in their favor, so as to secure, if it can be done consistent
with legal rules, the object they were intended to accomplish.” AIC Mgmt. v. Crews,
246 S.W.3d 640, 645 (Tex. 2008) (quoting Hermann v. Likens, 39 S.W. 282, 284
(Tex. 1897)) (internal quotations omitted).

Here, the jury found that the Association had “held the Disputed Driveway
Strip in peaceable and adverse possession for a period of at least ten years before
June 18, 2021.” The charge defined the Disputed Driveway Strip as “the portion of
Lot 35 on which the [Association] constructed and maintain a fence and driveway
over which the [Association] claim[s] ownership.” The trial court rendered a
judgment on the adverse possession verdict as follows:

IT IS further ORDERED, ADJUDGED, AND DECREED that [the
Association] own[s] fee simple title to the Driveway Strip described as
“Tract 2” in the attached survey labeled as Exhibit A, said survey being
the same survey admitted into evidence at trial as PX 15. Defendant
West Harbour, LLC’s claims to said Driveway Strip have cast a cloud
on [the Association’s] title, and the Court hereby quiets title in favor of
[the Association]. It is therefore ORDERED, ADJUDGED, AND
DECREED that Defendant West Harbour, LLC has no right, title, or
interest in said strip of land described as “Tract 2” in the attached survey
labeled as Exhibit A.
As noted earlier herein, the trial court attached the Delta Land survey to its
judgment, which contained the following description of the Driveway Tract):

22
While the judgment may sufficiently describe a piece of land by incorporating
the survey description above, adverse possession of the parcel described is not
supported by the record evidence. First, the Delta Land survey uses “the common
boundary line” between the parties of 54°21’09” to describe the Driveway Tract,
while the Holt Carson survey agreed to by the parties gives a common boundary line
of 52°10’00”. Nothing in the record defines the bounds of the adversely possessed
tract using the agreed upon boundary line.10 Second, the Association acknowledges

10
Unlike the Delta Land survey, the Holt Carson survey does not include a description of
the disputed tracts.

23
that it is not claiming adverse possession of the strip of land between the cinderblock
wall and new wooden fence on Lot 35’s side of the fence. Although the Association’s
representative confirmed as much in his trial testimony, nothing in the record
provides a sufficient legal description of the land that the Association claims it has
adversely possessed. The Delta Land survey’s description of the Driveway Tract (as
incorporated by the judgment) does not appear to reflect the Association’s
concession as to the land between the cinderblock wall and the wooden fence. As a
result, an officer attempting to execute a writ of possession could not identify the
adversely possessed Driveway Tract from the trial court’s judgment. See Zobel, 576
S.W.2d at 369; Gilbreath, 472 S.W.2d at 189.

We conclude that the evidence supporting adverse possession of the Driveway
Tract as described in the trial court’s judgment is so weak and so against the great
weight and preponderance of the evidence as to be clearly wrong and unjust. See
Dow Chem. Co., 46 S.W.3d at 242; Golden Eagle Archery, Inc. v. Jackson, 116
S.W.3d 757, 761 (Tex. 2003) (stating that courts overturning verdicts on basis of
factual insufficiency must explain why evidence discrepancy is “manifestly unjust;
why it shocks the conscience; or clearly demonstrates bias”). We sustain West
Harbour’s second issue as to factual sufficiency, and we reverse and remand for a
new trial.

DECLARATORY JUDGMENT

In its third issue, West Harbour argues the trial court erred in granting the
Association’s plea to the jurisdiction as to West Harbour’s counterclaim seeking a
declaration that the boundary line described by the Holt Carson survey is the true
and correct location of the boundary between the parties’ properties. The Association
responds that the trial court correctly granted its plea to the jurisdiction because it

24
had “agreed to stipulate to” the Holt Carson boundary line and thus no live
controversy existed.

“A declaratory judgment is appropriate only if a justiciable controversy exists
as to the rights and status of the parties and the controversy will be resolved by the
declaration sought.” Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex.
1995). The Association points to communications between counsel for the parties in
which the Association’s attorneys indicated that they would stipulate to the boundary
or that the boundary was not in dispute. First, these communications do not equate
to an enforceable stipulation. As West Harbour explained in its response to the
Association’s plea to the jurisdiction, “[s]aying ‘we are not really going to dispute
it’ in an email is not the same as judicially admitting or stipulating [to] the actual
location of the . . . boundary line as described in the Holt Carson survey.” See
Fidelity & Cas. Co. of N.Y. v. McCollum, 656 S.W.2d 527, 528 (Tex. App.—Dallas
1983, writ ref’d n.r.e.) (“The requirements of an enforceable stipulation are found in
Rule 11 of the Texas Rules of Civil Procedure, which provides: ‘No agreement
between attorneys or parties touching any suit pending will be enforced unless it be
in writing, signed and filed with the papers as part of the record, or unless it be made
in open court and entered of record.’”). Second, the Association did not acknowledge
any such admission in a filing with the trial court until its plea to the jurisdiction
filed on June 23, 2022, over seven months after West Harbour first sought a
declaration concerning the boundary line and just four months before trial. And still,
no signed stipulation was ever filed with the court. See Elliott v. Crosswater Yacht
Club L.P., No. 14-15-00034-CV, 2016 WL 1719087, *4 (Tex. App.—Houston [14th
Dist.] Apr. 18, 2016, no pet.) (mem. op.) (rejecting appellant’s argument that
attempted unilateral stipulation on eve of trial as to scope of easement mooted issue
and deprived trial court of subject matter jurisdiction).

25
We also note that despite the purported stipulation, and even after the trial
court granted the Association’s plea to the jurisdiction on the grounds that no live
controversy existed, the Association still presented expert testimony at trial based
on the Delta Land survey, which again, reflects a different boundary line. And the
trial court’s judgment ultimately incorporated that boundary line, not the agreed
upon boundary from the Holt Carson survey. All of this confirms the boundary line
was still very much in question.

Accordingly, we sustain West Harbour’s third issue. We reverse the trial
court’s grant of the Association’s plea to the jurisdiction and remand the cause to the
trial court for further proceedings consistent with this opinion.

CONCLUSION

Applying the precedent of the Third Court of Appeals, we conclude that
legally insufficient evidence supports the trial court’s finding of an easement by
estoppel because no vendor/vendee relationship existed between the parties. We also
conclude that the Association failed to present legally sufficient evidence of an
affirmative representation of the existence of an easement. We therefore sustain
West Harbour’s first issue on appeal, reverse the trial court’s judgment, and render
a judgment that the Association take nothing on its claim for an easement by
estoppel.

We conclude that factually insufficient evidence supports the trial court’s
adverse possession finding. We therefore sustain West Harbour’s second issue on
appeal, reverse the trial court’s judgment, and remand for a new trial on the issue of
adverse possession.

26
We also sustain West Harbour’s third issue, reverse the trial court’s grant of
the Association’s plea to the jurisdiction, and remand for further proceedings
consistent with this opinion.

/s/ Ken Wise
Justice

Panel consists of Chief Justice Christopher and Justices Wise and Hassan.

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