United States Court of Appeals

for the Fifth Circuit

No. 20-40803

Luminant Mining Company, L.L.C., 

Plaintiff—Appellee,

versus

Kendi Narmer PakeyBey, also known as Narmer Bey, Chief, 

also known as Kenneth Parker; Dawud Allantu Bey, First 

Trustee of Amexemnu Taysha Trust; Amexemnu City State, 

Incorporated; Anu Tafari Zion El, Second Trustee of

Amexemnu Taysha Trust, 

Defendants—Appellants.

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:19-CV-372

Before King, Higginson, and Wilson, Circuit Judges.

Cory T. Wilson, Circuit Judge:

Kendi Narmer PakeyBey, asserting that he is the heir of a nineteenthcentury tenant in common, came to Rusk County, Texas, to lay claim to his 

land. Luminant Mining, a company that holds title to the land and uses it for 

mining and logging operations, thought otherwise and filed suit in state court. 

After removing the case to federal court, PakeyBey argued that Luminant’s

chain of title showed no partition of the tenancy, so the tenancy still existed. 

United States Court of Appeals

Fifth Circuit

FILED

September 17, 2021

Lyle W. Cayce

Clerk

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Luminant countered that it was entitled to a presumption of full ownership 

or, alternatively, it had adversely possessed the property. The district court 

granted summary judgment for Luminant on both grounds. We agree that 

Luminant has fulfilled Texas’s adverse possession requirements and 

therefore holds the land in fee simple. We AFFIRM.

I.

On March 20, 1848, the state of Texas conveyed 1,280 acres of land 

in Rusk County, Texas, to Isham Chism and Jesse Walling as tenants in 

common. Chism and Walling held undivided shares in the property, with 

each tenant having an equal right to possess the whole property. See, e.g.,

Dierschke v. Cent. Nat’l Branch of First Nat’l Bank, 876 S.W.2d 377, 379 (Tex. 

App. 1994) (citations omitted). Their tenancy in common differed

considerably from a fee simple interest, with which a titleholder has total

ownership of the property. See Jackson v. Wildflower Prod. Co., Inc., 505 

S.W.3d 80, 88 (Tex. App. 2016) (citations omitted). This case turns on 

whether Chism and Walling’s tenancy in common, through succeeding years 

and conveyances, persists or at some point merged into fee simple ownership

of the land.

In 1979, about 131 years after Chism and Walling took title, the Texas 

Utilities Generating Company started acquiring land that was once part of 

the tenancy in common. That company was succeeded by the Texas Utilities 

Mining Company, then by TXU Mining Company, and finally by Luminant 

Mining Company, LLC. From 1979 to 1994, these companies acquired title 

to roughly three dozen tracts of land once part of the Chism-Walling tenancy.

Each deed was duly recorded and the chain of title for each tract was traced 

to a conveyance by either Chism or Walling. All the deeds purport to convey 

a fee simple. Since at least 2009, Luminant has either mined lignite coal or 

managed timber on the tracts.

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PakeyBey, Dawud Allantu Bey, the Amexemnu Taysha Trust, the 

Amexemnu City State, and Anu Tafari Zion El (collectively, the PakeyBey 

parties) assert they have severed ties with the United States of America and 

are “Moorish Americans” who are “sovereign freemen under the 

Republic . . . .” PakeyBey also asserts he is the heir of John Walling, the son 

of Jesse Walling, and thus the inheritor of Walling’s tenancy in common. On 

February 4, 2019, PakeyBey filed a warranty deed in Rusk County purporting 

to convey roughly 951 acres1 of the Walling-Chism tenancy to Bey and the 

Amexemnu Taysha Trust.

The PakeyBey parties occupied the land and attempted to harvest 

timber. Luminant discovered them and demanded they vacate the land, 

asserting it alone was the owner of the property. When the PakeyBey parties 

persisted in claiming rights to the land, Luminant filed a trespass-to-try-title

action2 against them in state court, seeking damages and injunctive relief. 

Luminant alleged it had superior title to the tracts and exclusive right to 

possession of the land.

The PakeyBey parties removed the case to federal court on diversity 

grounds. At the direction of the district court, the parties filed motions for 

summary judgment. The district court granted summary judgment for 

Luminant.

The district court examined the abstracts of title presented by the 

parties and found that even though gaps existed in Luminant’s chain of title, 

1 Initially PakeyBey claimed ownership of an additional 258 acres and the district 

court found that Luminant was the exclusive owner of that property. The PakeyBey parties 

do not appeal this judgment; thus, they have waived any arguments related to it. In re 

Southmark Corp., 163 F.3d 925, 934 n.12 (5th Cir. 1999).

2 “A trespass to try title action is the method of determining title to lands, 

tenements, or other real property.” Tex. Prop. Code Ann. § 22.001(a).

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Texas’s doctrine of presumed grant applied to fill those gaps. That doctrine 

is in effect “a common law form of adverse possession” and settles “titles 

where the land was understood to belong to one who does not have a 

complete record title, but has claimed the land a long time.” Fair v. Arp Club 

Lake, Inc., 437 S.W.3d 619, 626 (Tex. App. 2014) (citing Conley v. Comstock 

Oil & Gas LP, 356 S.W.3d 755, 765 (Tex. App. 2011)). Basically, when a chain 

of title reveals a gap, Texas courts can presume a grant of title from the party 

preceding the gap to the party succeeding the gap. Clark v. Amoco Prod. Co., 

794 F.2d 967, 970 (5th Cir. 1986).3

 The district court did so here, concluded 

that the gaps in Luminant’s chain of title therefore did not defeat its fee 

simple ownership, and confirmed Luminant’s fee simple interest in the 

tracts. 

The district court specifically rejected the PakeyBey parties’ assertion

that Walling’s tenancy in common existed even after Chism’s conveyances 

to Luminant’s predecessors. The district court further found that the 

PakeyBey parties failed to demonstrate an actual connection between 

PakeyBey and Walling. It alternatively found that summary judgment was 

appropriate because Luminant had demonstrated a matured limitations 

period under Texas’s adverse possession statutes. The PakeyBey parties 

now appeal.

II.

“This court reviews a grant of summary judgment de novo, applying 

the same standard as the district court.” Renfroe v. Parker, 974 F.3d 594, 599 

3 More specifically, the doctrine of presumed grant can be applied when three 

elements are met: (1) “a long-asserted and open claim, adverse to that of the apparent 

owner”; (2) “nonclaim by the apparent owner”; and (3) “acquiescence by the apparent 

owner in the adverse claim.” Adams v. Slattery, 295 S.W.2d 859, 868 (Tex. 1956) (internal 

quotation marks omitted) (quoting Magee v. Paul, 221 S.W. 254, 256 (Tex. 1920)).

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(5th Cir. 2020) (citations omitted). Summary judgment is merited when 

“the movant shows that there is no genuine dispute as to any material fact 

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 

P. 56(a). If a reasonable jury could return a verdict for the nonmoving party, 

then a genuine dispute of material fact exists, and summary judgment is not 

appropriate. Ahders v. SEI Priv. Tr. Co., 982 F.3d 312, 315 (5th Cir. 2020) 

(quoting Hamilton v. Segue Software Inc., 232 F.3d 473, 477 (5th Cir. 2000)). 

All facts and all reasonable inferences from facts should be construed most 

favorably to the nonmoving party. Murray v. Earle, 405 F.3d 278, 284 (5th 

Cir. 2005).

Because this is an action disputing title to real property in Texas, this 

court applies Texas substantive law. United States v. Denby, 522 F.2d 1358, 

1362 (5th Cir. 1975) (citing United States v. Williams, 441 F.2d 637, 643 (5th 

Cir. 1971)). In Texas, “[b]y statute, a trespass-to-try-title action ‘is the 

method of determining title to lands.’” Brumley v. McDuff, 616 S.W.3d 826, 

831–32 (Tex. 2021) (quoting Tex. Prop. Code Ann. § 22.001(a)). In 

these actions, “a plaintiff may prove legal title by establishing: (1) a regular 

chain of title of conveyances from sovereign to the plaintiff; (2) a superior 

title to that of the defendant out of a common source; (3) title by limitations 

(i.e., adverse possession); or (4) possession that has not been abandoned.” 

Id. at 832 (citing Rogers v. Ricane Enters., Inc., 884 S.W.2d 763, 768 (Tex. 

1994)). As the crucial question is “the strength” of the plaintiff’s title rather 

than the weaknesses of a defendant’s claims, Land v. Turner, 377 S.W.2d 181, 

183 (Tex. 1964), we focus on whether Luminant has demonstrated a fee 

simple interest in the tracts disputed by the PakeyBey parties.

III. 

The district court concluded summary judgment was warranted for 

Luminant on two grounds: Luminant had demonstrated a regular chain of 

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title of conveyances and, alternatively, Luminant had adversely possessed the 

land. On appeal, the PakeyBey parties attack the district court’s application 

of the presumed grant doctrine to complete Luminant’s chain of title. But it 

is not necessary for us to addressthis issue because, regardless, Luminant has 

demonstrated it adversely possessed the land. We therefore affirm the 

district court’s summary judgment on that ground. 

“In order to establish adverse possession as a matter of law, the 

claimant must show by undisputed evidence his actual peaceable and adverse 

possession of the property . . . .” Bywaters v. Gannon, 686 S.W.2d 593, 595 

(Tex. 1985) (citations omitted). Peaceable possession is “possession of real 

property that is continuous and is not interrupted by an adverse suit to 

recover the property.” Tex. Civ. Prac. & Rem. Code § 16.021(3). 

Adverse possession is “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.” Id. § 16.021(1). Generally, a 

party claiming title by adverse possession under Texas law must show

(1) actual and (2) visible possession that is (3) under a claim of right, 

(4) hostile to another’s claim to the property, and (5) peaceable for the 

applicable limitations period. See Nat. Gas Pipeline Co. of Am. v. Pool, 124 

S.W.3d 188, 193 (Tex. 2003).

More specifically, this case centers on an alleged tenancy in common, 

and a tenant in common must clear a heightened threshold for proving that 

its possession is hostile to any other claimant. To do so, a cotenant must

repudiate its cotenant’s title. Todd v. Bruner, 365 S.W.2d 155, 156 (Tex. 1963) 

(citations omitted). This is because cotenants’ possession of common land 

is “presumed to be in right of the common title. [A cotenant] will not be 

permitted to claim the protection of the statute of limitations unless it clearly 

appears that he has repudiated the title of his cotenant and is holding 

adversely to it.” Id. (citations omitted). To be effective, repudiation must 

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provide notice to the cotenant, id. at 159, though notice can be actual or 

constructive, Moore v. Knight, 94 S.W.2d 1137, 1139 (Tex. Comm’n App. 

1936). Conveying the common estate to a third party who records a deed and 

takes possession of the property provides constructive notice. Parr v.

Ratisseau, 236 S.W.2d 503, 506 (Tex. Civ. App. 1951) (citations omitted). 

“This effects an ouster of the cotenants and after the expiration of the 

statutory period will bar the right of the cotenants to recover.” Id. (citations 

omitted).

The applicable limitations period differs based on the possessor’s 

conduct. If a possessor is claiming under “title or color of title[,]” it must 

possess the land for three years. Tex. Civ. Prac. & Rem. Code Ann.

§ 16.024. If a possessor “cultivates, uses, or enjoys the property” and pays

“applicable taxes on the property” while claiming “the property under a duly 

registered deed[,]” the period is five years. Id. § 16.025. If a possessor 

merely “cultivates, uses, or enjoys the property[,]” the period is ten years. 

Id. § 16.026. For calculating time, Texas allows successors in interest to tack 

their time in possession to their predecessors’ time provided there is privity. 

Id. § 16.023.

This appeal ultimately turns on whether Luminant’s possession of the 

land has been hostile to any claim of its alleged cotenants. The record is 

uncontested that Luminant had either been mining or managing timber on 

the disputed tracts for at least ten years prior to the 2019 deed recorded by 

the PakeyBey parties or Luminant’s filing of this suit on July 26, 2019. 

Further, the record shows that since November 15, 1994, Luminant or its 

predecessors have held the tracts at issue under recorded deeds. See id. The 

undisputed facts thus establish the first, second, third, and fifth elements of 

Luminant’s adverse possession claim. See id. § 16.026.

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But the PakeyBey parties contend that Luminant failed to 

demonstrate hostile possession vis-à-vis its cotenants. They assert that the 

record is devoid of evidence of actual notice of repudiation of the common 

title. They further contend that Luminant cannot show constructive notice 

of repudiation, arguing that constructive notice and ouster require more than 

Luminant’s demonstrated possession of the land and the absence of a claim 

against the land by Walling’s heirs. Their argument rests on a correct reading 

of the law, up to a point. See Hardaway v. Nixon, 544 S.W.3d 402, 410 (Tex. 

App. 2017). But Luminant’s possession and Luminant’s recorded deeds are

sufficient to give constructive notice of hostility to cotenants and to effect an 

ouster. Parr, 236 S.W.2d at 506 (citations omitted). The PakeyBey parties’ 

argument is therefore unavailing.

Every recorded grant in Luminant’s chain of title after the original 

patent to Chism and Walling as tenants in common purported to convey the 

whole estate. The recordation of these deeds long ago provided constructive 

notice to any cotenants of a hostile possession sufficient to accomplish 

ouster. Parr, 236 S.W.2d at 506 (citations omitted). Again, the PakeyBey 

parties do not contest any of the facts related to recordation of these deeds. 

Therefore, there is no genuine dispute of fact regarding Luminant’s 

constructive notice and ouster of any alleged cotenant. Without that, there 

is no genuine issue of material fact regarding Luminant’s actual, visible, 

hostile, and peaceable possession of the disputed tracts under a claim of right

for at least ten years. Because every element of peaceable and adverse 

possession is established by undisputed evidence, Luminant has established 

its adverse possession of the property as a matter of law. Bywaters, 686 

S.W.2d at 595 (citations omitted). Thus, the district court properly granted 

summary judgment to Luminant on this ground.

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IV.

Luminant demonstrated, by uncontested evidence, its adverse and 

peaceable possession of the tracts of land also claimed by the PakeyBey 

parties for at least ten years, satisfying Texas’s adverse possession statutes. 

Luminant is therefore vested with a fee simple interest in the disputed tracts, 

and summary judgment in Luminant’s favor was proper.

AFFIRMED.

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