Co-author Brooke Sizer
Let’s talk title disputes, especially ones between those with record title and those claiming title by possession:
- They are complicated (There were 229 defendants in today’s case)
- They happen when there is a lot of money to fight over ($2.7 MM in today’s case)
- They involve events that happened a long time ago
- The witness who can prove your case is probably dead
- The witness who can prove your opponent’s case is probably dead
- The witness who can dispute testimony from the witness who is alive is probably dead
- Its easy to find precedent that supports your side. But your case will not be exactly like that case. What counts is how the trier of fact – judge or jury – evaluates the credibility of the witnesses and the weight of the evidence. Don’t expect summary judgment.
EOG Resources v. Hopkins was about ownership of gas royalties from 100 acres in Jackson Parish, Louisiana, acquired in 1900 by Emanuel Osborne, a widower, after his remarriage to Organ Ford, a widow. Together they had 25 children from their prior marriages. Being too tired, they had no children together. Organ died in 1927 and Emanuel died in 1933. No succession was filed for either of them.
The Osborne heirs owned an undivided one-half interest. At issue was whether the Ford Heirs, the Osborne heirs, the Clifford Osborne heirs (who not the Osborne heirs), and/or Mr. Hopkins acquired ownership by 10- or 30-year acquisitive prescription.
There were three tracts:
- 60 acres purchased by Emanuel in 1901—including 40 acres allegedly transferred from Emanuel to his son Amon and the “Lost 20 acres”.
- The “Fenced Parcel”—20 acres believed to have been purchased by Amos in 1932 at a tax sale. It was transferred to another Osborne heir in 1981 and then purchased by Hopkins in 1995 and 1996. Hopkins testified that he fenced in the entire parcel more than 10 year prior to trial.
- Clifford’s Farm – 20 acres, acquired by Emmanuel in 1907.
EOG filed a concursus proceeding to determine the ownership of the one-half interest in the mineral rights on the property.
Acquisitive Prescription of 10 years
Requirements: Possession for 10 years in good faith and under just title. A possessor is in good faith when he reasonably believes, in light of objective considerations, that he is owner of the thing he possesses.
Acquisitive Prescription of 30 years
Just title or good faith possession not required. Requirement – no title: possession extends only to that which has been actually possessed. Requirement for possession: continuous, uninterrupted, peaceable, public and unequivocal.
Generally, an owner in indivision cannot acquire by prescription the rights of his co-owners. A well-settled exception is where the possessing co-owner gives notice to the other co-owners that he intends to possess as owner adversely and contrary to the common interest.
Speaking of the deceased: Johnny Winter RIP. At least his “testimony” survives.
- The 60 Acres:
Allegedly transferred in 1901 from Emanuel to his son, Amos, and restated in a deed in 1931. It was not possible to show title based on the public records because the records were sporadic and incomplete. The 1931 deed was insufficient to provide notice. The Osborne heirs pointed to other documents to assert the hostile acts needed to support a finding of adverse possession of 30 years. This failed. Several recorded documents referred to the Osborne heirs only, but other recorded instruments such as sales of mineral and timber leases, were executed over many years by both the Osborne heirs and the Ford heirs. The Osborne heirs failed to satisfy their burden of proof of ownership of the 60 acres by 30-year acquisitive prescription, which needed to be open and hostile.
- The Fenced Parcel
Claimed by the Hopkins family by 10-year acquisitive prescription. Because Mr. Hopkins obtained the property via warranty deeds in 1995 and 1996, good faith was presumed and the Ford heirs had the burden of proving that the Hopkins were in bad faith. Hopkins had the burden of proving continuous, uninterrupted, peaceable, public and unequivocal possession for 10 years.
Neither party was able to carry their burden. Mr. Hopkins testified that he fenced the property shortly after he purchased it; however, the judge discredited his testimony in light of testimony of a forester who did not see a fence in 1999 and a survey that did not show a completed fence in 2000. In 2010 there was a fence around the parcel, but there was no testimony as to when the fence was constructed. Hopkins failed to prove that they possessed a delineated parcel for 10 years prior to trial.
- Clifford’s Farm
The Clifford Osborne heirs testified that Clifford and his sister Donisha used the 20 acre parcel as a farm. There was testimony against this. The judge found that Clifford Osborne heirs met their burden of proving possession for the 30-year period, but only for the western 10 acres. The judge used an aerial survey to determine what portion of the 20 acres that the Clifford Osborne heirs used for the farm. The Ford heirs counter argued that members of both families used the property encompassing the 20 acres for hunting, fishing, running dogs and other recreational activities.
The evidence convinced the court that members of both families used the property, including the 10 acres awarded to the Clifford Osborne heirs, for purposes commensurate with the nature of the property. Further, even if there had been adequate possession, the Clifford Osborne heirs failed to prove a delineated boundary sufficient to support the award of 10 acres. The totality of the evidence required a finding that the Osborne heirs failed to meet their burden of proving ownership by acquisitive prescription of any portion of the disputed property.