trespass to try title claim in Texas

2017Right to Recover Attorneys’ Fees With respect to the right to recover attorneys’ fees, ConocoPhillips argues that a trespass to try title claim does not Support an award of attorneys’ fees and “cannot be bootstrapped under the guise of the Declaratory Judgments Act.” See Martin, 133 S.W.3d at 267 .

2016See Martin v. Amerman, 133 S.W.3d 262, 267 (Tex. 2004) (observing that attorney’s fees are not available under a trespass to try title claim because they are not provided under the Texas Property Code). 13 __________________________________________ Melissa Goodwin, Justice Before Justices Puryear, Goodwin and Bourland Affirmed in Part; Reversed and Vacated in Part; Reversed and Remanded in Part Filed: July 28, 2016 14

2023Cf. Lance, 543 S.W.3d at 736–37 (“In seeking to establish alleged easement rights, the Robinsons do not assert any ownership or possessory interest in the disputed area.”); see id. at 736 (“The trespass-to-try-title statute . . . only applies when the claimant is seeking to establish or obtain the claimant’s ownership or possessory right in the land at issue.”); see also id. at 736-37 (“A claimant who prevails on a claim to establish an easement cannot prevail on a trespass-to-try-title claim without also establishing title or a possessory right.”).

2023Cf. Lance, 543 S.W.3d at 736–37 (“In seeking to establish alleged easement rights, the Robinsons do not assert any ownership or possessory interest in the disputed area.”); see id. at 736 (“The trespass-to-try-title statute . . . only applies when the claimant is seeking to establish or obtain the claimant’s ownership or possessory right in the land at issue.”); see also id. at 736-37 (“A claimant who prevails on a claim to establish an easement cannot prevail on a trespass-to-try-title claim without also establishing title or a possessory right.”).

2020“Generally, a trespass to try title claim is the exclusive method in Texas for adjudicating disputed claims of title to real property.” Tex. Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d 384, 389 (Tex. 2011) (citing TEX.

2019Code Ann. §§ 22 .001–.045 (governing trespass-to-try-title actions); Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909 , 918–19 (Tex. 2013) (party may sue in district court to obtain adjudication of its title); Tex. Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d 384, 389 (Tex. 2011) (“Generally, a trespass to try title claim is the exclusive method in Texas for adjudicating disputed claims of title to real property.”); Meekins v. Wisnoski, 404 S.W.3d 690 , 694–97 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (substance of plaintiff’s claim was trespass-to-try-title action rather t

2026Ramsey v. Grizzle, 313 S.W.3d 498, 505 (Tex. App.—Texarkana 2010, no pet.) (citing Rogers v. Ricane Enters., Inc., 884 S.W.2d 763, 768 (Tex. 1994)).

2021See Rogers v. Ricane Enters., Inc., 884 S.W.2d 763 , 769–70 (Tex. 1994) (Rogers II).

2009BP does not purport to assert its trespass-to-try-title claim against the State or GLO as parties; to the extent it did, Lain requires us to hold that the claim is barred by sovereign immunity. 349 S.W.2d at 582 ; see Koch, 273 S.W.3d at 455 (“Sovereign immunity bars a ‘suit for land’ against the State or its agency”); Texas Parks & Wildlife Dep’t v. Callaway, 971 S.W.2d 145, 152 (Tex.App.-Austin 1998, no pet.) (“A suit for title to land against the state or its agency cannot be maintained without legislative consent”).

2009BP does not purport to assert its trespass-to-try-title claim against the State or GLO as parties; to the extent it did, Lain requires us to hold that the claim is barred by sovereign immunity. 349 S.W.2d at 582 ; see Koch , 273 S.W.3d at 455 ("Sovereign immunity bars a 'suit for land' against the State or its agency"); Texas Parks & Wildlife Dep't v. Callaway , 971 S.W.2d 145, 152 (Tex. App.--Austin 1998, no pet.) ("A suit for title to land against the state or its agency cannot be maintained without legislative consent").

2010Second, TxDot and the City's argument that this suit is one for trespass to try title is not supported by the law. "[A] takings claim is not the functional equivalent of a trespass to try title claim or a suit to quiet title." Poretto v. Patterson , 251 S.W.3d 701, 708 (Tex. App.-Houston [1st Dist.] 2007, no pet.).

2010Second, TxDot and the City’s argument that this suit is one for trespass to try title is not supported by the law. “[A] takings claim is not the functional equivalent of a trespass to try title claim or a suit to quiet title.” Porretto v. Patterson, 251 S.W.3d 701, 708 (Tex.App.-Houston [1st Dist.] 2007, no pet.).

2016In that case, the plaintiffs brought suit against state officials asserting a trespass-to-try-title claim and seeking to enjoin the asserted trespass after the state officials constructed a ferry, landing and “dredged a channel over the [plaintiffs’] property for operation of a fer- ry.” Id. at 580 .

2009The linchpin of this distinction in Lain and its antecedents, as previously explained, was that the trespass-to-try-title claim against the official, whether asserted against him individually or in his official capacity, could yield no more than a judgment entitling the plaintiff to possession based on an “incidental” title determination that “is not binding on the sovereign.” 349 S.W.2d at 582 .

2015App.—Austin 1903, no writ) (easement owner cannot maintain a trespass to try title claim against the owner of the land); Roberson v. City of Austin, 157 S.W.3d 130, 136 (Tex. App.— Austin 2005, pet. denied) (easement is non-possessory property interest and, generally, the remedy of trespass to try title has not been applied to non-possessory property interests such as easements).

2015App.—Austin 1903, no writ) (easement owner cannot maintain a trespass to try title claim against the owner of the land); Roberson v. City of Austin, 157 S.W.3d 130, 136 (Tex. App.— Austin 2005, pet. denied) (easement is non-possessory property interest and, generally, the remedy of trespass to try title has not been applied to non-possessory property interests such as easements).

2021Dist., 211 S.W.3d 331, 339 (Tex. App.—San Antonio 2006, pet. denied) (concluding that Lytle ISD’s declaratory judgment action was essentially a trespass to try title claim); see also Vernon v. Perrien, 390 S.W.3d 47, 55 (Tex. App.—El Paso 2012, pet. denied); Parker v. Hunegnaw, 364 S.W.3d 398, 402 (Tex. App.—Houston [14th Dist.] 2012, no pet.); Ramsey v. Grizzle, 313 S.W.3d 498, 504 (Tex. App.—Texarkana 2010, no pet.).

2012See Parker v. Hunegnaw, 364 S.W.3d 398, 402 (Tex.App.-Houston [14th Dist.] 2012, no pet.).

2021Dist., 211 S.W.3d 331, 339 (Tex. App.—San Antonio 2006, pet. denied) (concluding that Lytle ISD’s declaratory judgment action was essentially a trespass to try title claim); see also Vernon v. Perrien, 390 S.W.3d 47, 55 (Tex. App.—El Paso 2012, pet. denied); Parker v. Hunegnaw, 364 S.W.3d 398, 402 (Tex. App.—Houston [14th Dist.] 2012, no pet.); Ramsey v. Grizzle, 313 S.W.3d 498, 504 (Tex. App.—Texarkana 2010, no pet.).

2012Dist., 211 S.W.3d 331, 339 (Tex.App.-San Antonio 2006, pet. denied) (holding that the trial court did not abuse its discretion in overruling the defendant’s special ex *728 ceptions because the “declaratory judgment action can be characterized as a trespass to try title claim”).

2011Thus, under our reasoning in Poag , although this suit concerns the validity of a deed, which may otherwise be a proper subject for a UDJA claim, we are compelled to hold that the essence of the Nikolais’ suit was to obtain a declaration of title and that, as a matter of law, they were not entitled to attorney’s fees under the UDJA. 317 S.W.3d at 828-29 ; see also Aguillera v. John G. & Marie Stella Kenedy Mem’l Found., 162 S.W.3d 689, 697-98 (Tex App.-Corpus Christi 2005, pet. denied) (holding that attorney’s fees were unavailable because although the suit concerned the validity of -a land do

2011Thus, under our reasoning in Poag, although this suit concerns the validity of a deed, which may otherwise be a proper subject for a UDJA claim, we are compelled to hold that the essence of the Nikolais‘ suit was to obtain a declaration of title and that, as a matter of law, they were not entitled to attorney‘s fees under the UDJA. 317 S.W.3d at 828–29; see also Aguillera v. John G. & Marie Stella Kenedy Mem’l Found., 162 S.W.3d 689 , 697–98 (Tex. App.— Corpus Christi 2005, pet. denied) (holding that attorney‘s fees were unavailable 18 ―A mineral fee owner has a possessory estate in the land.

2010Nonetheless, the Texas Supreme Court has never overruled Lain, and it remains squarely controlling 5 precedent that we are bound to apply here unless and until the high court tells us otherwise.” Id. at 356-57 (internal citations omitted).

2010Nonetheless, the Texas Supreme Court has never overruled Lain , and it remains squarely controlling precedent that we are bound to apply here unless and until the high court tells us otherwise.” Id. at 356-57 (internal citations omitted).

2009Land Office, 273 S.W.3d 451, 455 (Tex.App.-Austin 2008, pet. filed) (“A ‘suit for land’ necessarily includes a trespass to try title claim.”).

2009Land Office, 273 S.W.3d 451, 455 (Tex. App.—Austin 2008, pet. filed) (“A ‘suit for land’ necessarily includes a trespass to try title claim.”).

2008Id. ; Hartzog v. Seeger Coal Co. , 163 S.W. 1055, 1059 (Tex. Civ.

2005Id. ; Hartzog v. Seeger Coal Co. , 163 S.W. 1055, 1059 (Tex. Civ.

2025See MEI Camp Springs, 623 S.W.3d at 89–90; Teon Mgmt., 357 S.W.3d at 727–28.

2021Texas courts, including this court, have held that, even though a claim for declaratory judgment should have been brought as a trespass to try title claim, the trial court did not abuse its discretion in overruling an objection or special exception to this defect if the “claims for declaratory relief can be characterized as claims for trespass to try title.” Teon Mgmt., 357 S.W.3d at 728 ; see Loeffler v. Lytle Indep.

2026Ramsey v. Grizzle, 313 S.W.3d 498, 505 (Tex. App.—Texarkana 2010, no pet.) (citing Rogers v. Ricane Enters., Inc., 884 S.W.2d 763, 768 (Tex. 1994)).

2021Dist., 211 S.W.3d 331, 339 (Tex. App.—San Antonio 2006, pet. denied) (concluding that Lytle ISD’s declaratory judgment action was essentially a trespass to try title claim); see also Vernon v. Perrien, 390 S.W.3d 47, 55 (Tex. App.—El Paso 2012, pet. denied); Parker v. Hunegnaw, 364 S.W.3d 398, 402 (Tex. App.—Houston [14th Dist.] 2012, no pet.); Ramsey v. Grizzle, 313 S.W.3d 498, 504 (Tex. App.—Texarkana 2010, no pet.).

2023Inc., No. 11-07-00159-CV, 2009 WL 1522661 , at *6–7 (Tex. App.—Eastland May 29, 2009, no pet.) (treating adverse possession as an affirmative defense to a counterclaim brought by mineral estate owners seeking a declaration that an oil and gas operator’s lease was no longer in effect); Haby v. Howard, 757 S.W.2d 34, 38 (Tex. App.—San Antonio 1988, writ denied) (treating adverse possession as an affirmative defense to a trespass to try title claim).

2016See Romo, 48 S.W.3d at 269 ; see also Haby v. Howard, 757 S.W.2d 34, 38 (Tex. App.-San Antonio 1988, writ denied) (holding that a fact issue regarding the affirmative defense of adverse possession precludes summary judgment on a trespass to try title claim).

2023Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188, 192 (Tex. 2003); Richmond v. Wells, 395 S.W.3d 262, 267 (Tex. App.—Eastland 11 In their traditional motion for summary judgment, Appellees asserted that a trespass-to-try-title action is inapplicable to a nonpossessory royalty interest.

2016See Richmond v. Wells, 395 S.W.3d 262, 266-67 (Tex. App.-Eastland 2012, no pet.) (noting that “possibility of reverter” in oil and gas lease was non-possessory interest and that generally “non-possesso-ry interests are not proper subjects of a trespass-to-try-title action”); Roberson v. City of Austin, 157 S.W.3d 130, 136 (Tex. App.-Austin 2005, pet. denied) (observing that “we generally have not applied the remedy of trespass to try title to nonpos-sessory property interests such as easements”); see also Tex. Prop.

2022To prevail on a trespass-to-try-title claim, a plaintiff must “(1) prove a regular chain of conveyances from the sovereign, (2) establish superior title out of a common source, (3) prove title by limitations, or (4) prove title by prior possession coupled with proof that possession was not abandoned.” Lance v. Robinson, 543 S.W.3d 723, 735 (Tex. 2018) (citing Plumb v. Stuessy, 617 S.W.2d 667, 668 (Tex. 1981)).

2020To prevail on a trespass-to-try title claim, a plaintiff must “(1) prove a regular chain of conveyances from the sovereign, (2) establish superior title out of a common 20 source, (3) prove title by limitations, or (4) prove title by prior possession coupled with proof that possession was not abandoned.” Lance v. Robinson, 543 S.W.3d 723, 735 (Tex. 2018) (citing Plumb v. Stuessy, 617 S.W.2d 667, 668 (Tex. 1981)).

2021As a general matter, we have held that such a plea allows the defendant to “interpose any legal or equitable defense that tends to defeat the plaintiff’s right to recover.” Kauffman v. Brown, 18 S.W. 425, 427 (Tex. 1892) (emphasis added); see also Hancock v. Booker, 608 S.W.2d 811, 815 (Tex. App.—Waco 1980, writ ref’d n.r.e.) (same) (citing Guest v. Guest, 12 S.W. 831 (Tex. 1889) (holding that estoppel is a valid defense to a trespass-to-try-title claim)). 17 To the extent Ellison frames the issue as one of Concho’s “standing,” we agree with Concho that standing has nothing to do with the avai

2021As a general matter, we have held that such a plea allows the defendant to “interpose any legal or equitable defense that tends to defeat the plaintiff’s right to recover.” Kauffman v. Brown, 18 S.W. 425, 427 (Tex. 1892) (emphasis added); see also Hancock v. Booker, 608 S.W.2d 811, 815 (Tex. App.—Waco 1980, writ ref’d n.r.e.) (same) (citing Guest v. Guest, 12 S.W. 831 (Tex. 1889) (holding that estoppel is a valid defense to a trespass-to-try-title claim)).

2021As a general matter, we have held that such a plea allows the defendant to “interpose any legal or equitable defense that tends to defeat the plaintiff’s right to recover.” Kauffman v. Brown, 18 S.W. 425, 427 (Tex. 1892) (emphasis added); see also Hancock v. Booker, 608 S.W.2d 811, 815 (Tex. App.—Waco 1980, writ ref’d n.r.e.) (same) (citing Guest v. Guest, 12 S.W. 831 (Tex. 1889) (holding that estoppel is a valid defense to a trespass-to-try-title claim)). 17 To the extent Ellison frames the issue as one of Concho’s “standing,” we agree with Concho that standing has nothing to do with the avai

2021As a general matter, we have held that such a plea allows the defendant to “interpose any legal or equitable defense that tends to defeat the plaintiff’s right to recover.” Kauffman v. Brown, 18 S.W. 425, 427 (Tex. 1892) (emphasis added); see also Hancock v. Booker, 608 S.W.2d 811, 815 (Tex. App.—Waco 1980, writ ref’d n.r.e.) (same) (citing Guest v. Guest, 12 S.W. 831 (Tex. 1889) (holding that estoppel is a valid defense to a trespass-to-try-title claim)).

2021As a general matter, we have held that such a plea allows the defendant to “interpose any legal or equitable defense that tends to defeat the plaintiff’s right to recover.” Kauffman v. Brown, 18 S.W. 425, 427 (Tex. 1892) (emphasis added); see also Hancock v. Booker, 608 S.W.2d 811, 815 (Tex. App.—Waco 1980, writ ref’d n.r.e.) (same) (citing Guest v. Guest, 12 S.W. 831 (Tex. 1889) (holding that estoppel is a valid defense to a trespass-to-try-title claim)). 17 To the extent Ellison frames the issue as one of Concho’s “standing,” we agree with Concho that standing has nothing to do with the avai

2021As a general matter, we have held that such a plea allows the defendant to “interpose any legal or equitable defense that tends to defeat the plaintiff’s right to recover.” Kauffman v. Brown, 18 S.W. 425, 427 (Tex. 1892) (emphasis added); see also Hancock v. Booker, 608 S.W.2d 811, 815 (Tex. App.—Waco 1980, writ ref’d n.r.e.) (same) (citing Guest v. Guest, 12 S.W. 831 (Tex. 1889) (holding that estoppel is a valid defense to a trespass-to-try-title claim)).

2008See id.; see also Lawson, 87 S.W.3d at 522 (noting that "a governmental entity would not, in settling a suit for which immunity has been waived, undertake an obligation that exposes it to liability much greater or different than that which it faced from the original claim.").

2008See id.; see also Lawson, 87 S.W.3d at 522 (noting that “a governmental entity would not, in settling a suit for which immunity has been waived, undertake an obligation that exposes it to liability much greater or different than that which it faced from the original claim.”).

2019Code Ann. §§ 22 .001–.045 (governing trespass-to-try-title actions); Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909 , 918–19 (Tex. 2013) (party may sue in district court to obtain adjudication of its title); Tex. Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d 384, 389 (Tex. 2011) (“Generally, a trespass to try title claim is the exclusive method in Texas for adjudicating disputed claims of title to real property.”); Meekins v. Wisnoski, 404 S.W.3d 690 , 694–97 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (substance of plaintiff’s claim was trespass-to-try-title action rather t

2015A trespass to try title claim is “‘the method for determining title’” to property, and a party “‘may not proceed alternatively under the Declaratory Judgments Act to recover their attorney’s fees.’” Coinmatch Corp., 417 S.W.3d at 926 (quoting Martin v. Amerman, 133 S.W.3d 262, 267 (Tex. 2004)).

2021Dist., 211 S.W.3d 331, 339 (Tex. App.—San Antonio 2006, pet. denied) (concluding that Lytle ISD’s declaratory judgment action was essentially a trespass to try title claim); see also Vernon v. Perrien, 390 S.W.3d 47, 55 (Tex. App.—El Paso 2012, pet. denied); Parker v. Hunegnaw, 364 S.W.3d 398, 402 (Tex. App.—Houston [14th Dist.] 2012, no pet.); Ramsey v. Grizzle, 313 S.W.3d 498, 504 (Tex. App.—Texarkana 2010, no pet.).

2015It exists to ‘enable the holder of the feeblest equity to remove from his way to legal title any unlawful hindrance having the appearance of a better right.’” Vernon, 390 S.W.3d at 61 .

2018Id.

2017See Smith, 288 S.W.3d at 424 ; King Ranch, 118 S.W.3d at 751 .

2019A. Applicable Law “The plaintiff may recover on a trespass to try title claim through several methods of proof, one of which is a showing of prior and unabandoned possession.” Volunteer Council of Denton State Sch., Inc. v. Berry, 795 S.W.2d 230, 233 (Tex. App.—Dallas 1990, writ denied) (citing Land v. Turner, 377 S.W.2d 181, 183 (Tex. 1964) (stating that a plaintiff may recover in a trespass-to- try-title action “by proving prior possession, and that the possession had not been abandoned”). “[T]o establish ‘prior possession,’ there must be an actual possession of the property which is exclusi

2019A. Applicable Law “The plaintiff may recover on a trespass to try title claim through several methods of proof, one of which is a showing of prior and unabandoned possession.” Volunteer Council of Denton State Sch., Inc. v. Berry, 795 S.W.2d 230, 233 (Tex. App.—Dallas 1990, writ denied) (citing Land v. Turner, 377 S.W.2d 181, 183 (Tex. 1964) (stating that a plaintiff may recover in a trespass-to- try-title action “by proving prior possession, and that the possession had not been abandoned”). “[T]o establish ‘prior possession,’ there must be an actual possession of the property which is exclusi

2011Poag v. Flories, 317 S.W.3d 820, 828-29 (Tex.App.-Fort Worth 2010, pet. denied) (citations omitted); see Martin, 133 S.W.3d at 267 (holding that a dispute regarding the boundary of property was a trespass to try title suit, which foreclosed the plaintiffs’ ability to collect attorney’s fees under the UDJA); cf. Roberson v. City of Austin, 157 S.W.3d 130, 136-37 (Tex.App.-Austin 2005, pet. denied) (holding that a dispute over an easement was not a trespass to try title claim and could therefore be brought under the UDJA because an easement is a nonpossessory property interest). 18 The Nikolais’

2011Poag v. Flories, 317 S.W.3d 820 , 828–29 (Tex. App.—Fort Worth 2010, pet. denied) (citations omitted); see Martin, 133 S.W.3d at 267 (holding that a dispute 28 regarding the boundary of property was a trespass to try title suit, which foreclosed the plaintiffs‘ ability to collect attorney‘s fees under the UDJA); cf. Roberson v. City of Austin, 157 S.W.3d 130 , 136–37 (Tex. App.—Austin 2005, pet. denied) (holding that a dispute over an easement was not a trespass to try title claim and could therefore be brought under the UDJA because an easement is a nonpossessory property interest).18 The Nik

2025See Doherty v. Old Place, Inc., 316 S.W.3d 840, 844 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (op. on reh’g) (holding that a no-evidence motion that “asserted there is no evidence of any of the following”—“(1) a regular chain of conveyances from the sovereign; (2) a superior 11 title out of a common source; (3) title by adverse possession; or (4) prior possession which has not been abandoned”—was “sufficiently specific in that it clearly identified the methods by which a plaintiff can prove title to land”).