### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-08-00738- CV

Appellan ts, P hill ip Wil son an d Lau ra Wilson // Cross-A ppellan t, Ne om a Whetstone

v. Appellee, Neom a Whetstone // Cross-A ppellees, P hill ip Wil son an d Lau ra Wilson

F ROM TH E DISTRI CT COURT O F H AY S CO UNTY, 274 TH JUDICI AL DISTRICT NO. 04- 1276 , H ONO RAB LE GARY L. STEEL, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

These cross-a

ppeals following a jury trial arise from the competing cla im s o f a djace nt landowner s to an are a of land wher e their two trac ts adjoin along Onion Creek in Hay s County (the “disputed are a”)

. The district court g rante d a direc ted verdic t that Phill ip and L aura Wil son (the “Wilsons”) held rec ord title to t h e d isputed are a and submitt ed to the jury , among other issues, whether Neoma Whetstone had adver sely possessed the are a. The jury found in Whetstone’s favor , and the district court enter ed judgmen t i n accorda nce with the jury ’s finding s, decla ring that Whetstone rec over title and possession to the disputed are a and decla ring the boundary line betwee n the parties’ trac ts of land. The district court denied both parties’ re q u es t s for attorney ’s fee s but conditionally g rante d the W i l s o ns’ reque st for attorney ’s fee s in the event that the Wil sons

succe ssfully appea led the jury ’s adver se possession finding s. The district court also awa rded the Wil sons $8,609.80 for half the cost of a

survey that they incurre d during the litigation.I n three issues, the Wil sons contend that the district court err ed in its instructions to

the jury conce rning adver se possession and challeng e the leg al and fac tual sufficie ncy of the evidenc e to suppo rt the jury ’s finding s and essential elements of adver se possession. On cross appea l, Whetstone challeng es the district court’s awa rd of survey costs to the Wil sons and the district court’s denial of her reque st for attorney ’s fee s pursuant to the Uniform Dec lara tory J udg ments Act. See Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001-.011 (West 2008) (the “Ac t”). For the rea sons that follow, we modify the j udg ment to delete the awa rd of survey costs to the W ilsons and affirm t he judgme nt as modified.

F ACTUAL AND P ROCEDURAL BACK GR OUND The Contr oversy

The two adjoining trac t s o f l and owned by the Wil sons and Whetstone orig inated from a larg er trac t owned by Geor g e and Helena Luerse n. I n 1917, the Luerse ns divided their land, convey ing the adjoining trac ts to their sons Otto and Fr itz

. Otto L uerse n’s land, to the east, formed the basis of Whetstone’s chain of title, and Fr itz Luerse n’s land, to the west, formed the basis of the Wil sons’ chain of title. The common boundary line as descr ibed in the deeds from the Luerse ns to their sons provided both tra cts of land a cce ss to Onion Creek.

Be g inning in the 1940s, deeds that wer e rec orded in the rea l proper ty rec ords in both the Wil sons’ and Whetstone’s chains of title descr ibe the boundary line betwee n the two trac ts with ref ere nce to a fenc e along the “we st ba nk of Onion Creek.” The fe nce on the west bank of Onion 1

A deed, dated in 1924 and recorde d in 1943, convey ed an are a in the s hape o f a triangle 1 (the “triang le are a”) primarily on the east side of Onion Creek from the trac t of land on the Wil sons’ 2Creek (t h e “f en ce ”) had been in exis tence and in the same approximate location from at least the 1940s. The disput ed area is to the east of t he fence , and the Wil sons do not have a cce ss to Onion Creek w ithout it

.

Whetstone and her husband purcha sed their trac t of approximately 85 acr es in 1957. Consist ent with the deeds on both parties’ chains of title from the 1940s, the leg al descr iption in their deed included the disputed are a as part of their trac t of land and identified the boundary line betwee n their trac t and the trac t now owned by the Wil sons by ref ere ncing the fenc e along the west bank of Onion Creek. 2 The Wil sons purcha sed their trac t of approximately 28.32 ac re s fr om Howar d and Be rtha Nations in 2002. The deed from the Nations to the Wil sons ref ere nced the Whetstones’ 1957 deed and, simil ar to the Whetstones’ deed, identified the boundary line betwee n the two trac ts as “fe nced” along the “we st bank of Onion Creek.” The W i l s o n s ’ trac t of land, as descr ibed in the deed, did not include the disputed are a, but the Wil sons obtained a corr ection deed without war ranty in 2004 that descr ibed t heir tract t o include the disputed are a. The W i l s o ns installed a gate in the fenc e that enable d them to acc ess Onion Creek and beg an cutting down tree s and clea ring brush in the disputed are a.

side to the trac t of land on Whetstone’s side. The convey ance of the triang le are a is not in dispute; the par ties ag ree that it is part of Whetstone’s trac t. Whetstone’s husband died in 1995. Whetstone was the sole owner of the proper ty during 2 the re levant time per iod. 3Litigati on Com m enced Whetstone broug ht s u it in 2004 seeking decla rations conce rning her owner ship of the disputed are a and the proper boundary line. She contende d alternatively that (i) she had adver sely possessed the disputed are a, (ii) she had superior title from a common source , and/or (iii) Whetstone, the Wil sons, and their prede cessor s in interest acquie sced an d re cognized the leg al boundary line betwee n the trac ts as running with the fenc e. She also soug ht her attorney ’s fee s and costs, including survey costs. The Wil sons counter claimed for a de c la r atory judgme nt that they wer e the rec ord title

owner s of the disputed are a and that the boundary line betwee n their trac t and Whetstone’s trac t was

as origi n al l y co n v ey ed in the 1917 deed from the Luerse ns to their sons combined with the convey ance in 1924 of the triang le are a. The Wil sons also soug ht their attorney ’s fee s and costs, including sur

vey costs. During the pendenc y of the case , the Wil sons hired Metca lf & Sanders to survey and plot the rele vant deeds’ descr iptions of the boundary line betwee n the two trac ts. Metca lf & Sanders plotted the boundary line as descr ibed in the 1917 deeds convey ing the two trac ts from the Luerse ns to their sons, the 1924 deed convey ing the triang le are a, the Whetstones’ 1957 deed, the 2002 deed from the Nations to the Wil sons, and the 2004 corr ection deed. The survey plots the descr iption of the boundar

y line in the Whetstones’ deed somew hat to the west of the fenc e line. I n J anuar y 2008, the par

ties appea red be fore the cour

t for a hear ing r eg arding

leg al title to the disputed are a. Fo llowing the hear ing, the district court found as a matter of law that (i) the common owner of t h e t wo t ra cts was Geor g e and Helena L uerse n, (ii) they divided their

4proper

ty betwee n their sons, Otto and Fr itz , in 1917, (iii) the boundary line betwee n the two trac ts “is acc urate ly established and set out in the Map of Survey perf ormed by Metca lf & Sanders,” and (iv) the disputed are a was included in the convey ance to Fr itz Luerse n and “ther e has been no written convey ance or t ra n s fer of that disputed portion of land from the side of Fr itz Luerse n or his

succe ssors in titl e to the side of O tto Luerse n or his succe ssors in titl e.”

The Trial The jury trial occu r r e d in J une 2008. The disputed issues included whether the parties and their prede cessor s in interest acquie sced to the boundary line following t h e fe n ce line and whether Whetstone had adve rsely possessed the disputed a

rea . Wit nesses t o testify on behalf of Whetstone included Whetstone, a nephew of Whetstone, a nephew of Otto L uerse n, and a title expert. W h etstone testified conce rning her understanding that the fenc e line on the west bank of Onion Creek was the boundary line betwee n the two trac ts of land. She testified to her and her husband’s purcha se of their trac t of land as a

ranc h, including the disputed are a, and their pay ment of taxes on their trac t, including the disputed

are a, from 1957 forwa

rd. She testified that the fenc e was there when she and her husband purcha sed their land; that they used the disputed are a in the same manner that they used the rest of their ranc h, including f

or re cre ation and continuously g razing livestock; that they maintained and re place d the fenc e, including installing livestock proof netting and fenc e posts and improving the “wa ter g ap” in the fe nce; a

nd that they

clea red the cre ek bed in the disputed a rea . Whetstone also testified to an incident with Howar d Natio n s , o ne of the former owner s of the trac t now owned by the Wil sons. Nations diverted water from Onion Creek to form a pond on
5his land. Whetstone testified that Nations’s ac tions to di vert water fr om the cre ek we re on his side

of the fenc e and that she and her husband decide d not to take action ag ainst him. She also testified 3 that prior neig hbors befor e the Wil sons did not use the disputed are a, and that the first time that there

was a g ate providing acc ess to Onion Creek from the Wil sons’ side was when the Wil sons modified the fe nce to a dd a g ate.

The nephew of Otto L

uerse n testified to his observa tions of the fenc e and the disputed

are a in the 1930s when Otto L uerse n and his wife owned Whetstone’s trac t of land. He testified that, when he was swimming in Onion Creek in the are a in dispu t e, “I as s u med I was on my aunt and uncle’ s proper

ty .” Whetstone’s nephew testified to the Whetstones’ uses of their ranc h, including the disputed are a, and his belief t hat his aunt and uncle owned the disputed are a. He testified that he started visiting his aunt a

nd uncle a t their ranch “in about 1958” and c ontinued visiti ng them ever y y ear , including spending summers with them “ f o ll o w [i n g ] my uncle around and do[i ng ] what he did.”

Whetstone testified: 3 Q. Did Mr. Nations ever come onto y our property in connec tion with building that pond or lake ? A. No. He just ca

me to the fe nce. Q. I s there any

thing that y ou could have done to have stopped him from digg ing that hole in the g round? A. I don’t know whether there is any thing we co u ld have done or not. We didn’t. Q. I t was all on his side of the pr operty ? A. I t was all on his side of the f ence . 6He testified that he d i d n o t see any one else use the disputed are a, that he assisted his uncle with

repa iring and maintaining the fenc e befor e his uncle died, and that he continued to assist his aunt with neede d repa irs, including “mending ” the fenc e, afte r hi s uncle died. The title expert testified

conce rning the deeds in both sides’ chains of title. He opined that Whetstone owned the disputed are a beca use “[ t] here was an agreement back i n [19] 42 that [t he parties on both sides] would rec og nize the fe nce on the west bank a s the boundary line betwee n the two par cels.” 4 The Wilsons testified on their own behalf

. They testified that, when they purcha sed their trac t of land, they understood the boundary line to be a rock wall on the east side of Onion Creek and that their trac t included the disputed are a. Mrs. Wil son testified that they beg an paying taxes on the disputed are a in 2006, and Mr. Wil son testified that the disputed are a was important beca use the Wil sons do not have acc ess to Onion Creek or to another water source without it. The Wil sons also called Geor g e Sanders, a reg istered survey or of Metca lf & Sanders, and Kathry n Wehrmann who signe d the corr ection deed. Wehrmann testified conce rning the circ umstances surrounding the

corr ection deed and her visits to the Wil sons’ trac t when it was owned by We h r ma n n ’ s mo th e r - in- law. Wehrmann testified that she used the disputed are a when she visited and believed that it belong ed to her mother-in-la

w. Her mother-in-la

w died in 1973, and the proper ty was sold shortly afte r her death
to the Nations. Sanders testified as an expert for the Wil sons conce rning the survey work that Metca lf & Sa n d er s u n d ertook to plot the approximate locations of the boundary lines as descr ibed in the

His opinion was based i n part on an aff idavit that was sig ned by

Otto L uerse n and other s 4 and re corde d in the rea l property rec ords in 1942 descr ibing bounda ries of la nd in Hay s County

. 7rele vant deeds in bot h ch ai n s o f titles. The survey was admitted into evidenc e as well as excerpts

from two other

survey s prepa

red in 1974 a

nd 1977. The district court g rante d a direc ted verdic t in favor of the Wil sons and instructed the jury that the Wil sons had rec ord title to the disputed are a. The Wil sons also m o v ed fo r d i rected verdic t on Whetstone’s adver se possession and ac q uiesce nce claims, but the district court denied those motions. The district court submitt ed questions to the jury conce rning adver se possession and acquie scenc e to the boundary line and at t ac h ed an d ref ere nced excerpts of the survey prepa red by Metca lf & Sanders—Exhibit s A and B —to the jury char g e. Exhibi t B de picts the disputed are a on the survey by highlig hting it. Neither party objected to the depiction of the disputed are a in Ex hibit B.

The jury found in f

avor of the Wils ons that the owner s on both side s of the disputed

are a did not acquie sce to the boundary line as proposed by Whetstone. The jury , howeve r, found in 5 favor of Whetstone on the four adver se possession questions. See Tex. Civ. Prac. & Rem. Code Ann. § § 1 6

. 0 2 5 ( f

iv e - y e a r limit ations period), 16.026 (ten-year limit ations period), 1 6

. 0 2 7 ( tw e n ty

- f iv e y e a r limit ations period), 16.028 (twenty -five y ear limit ations p er iod with rec orded instrument) (West 2002). The district c ourt enter ed judgme nt in acc ordanc e with the jury ’s verdic t. The district c ourt

T h e jury found that, during the period October 1942 to Fe bruar y 1943, there was 5 “unce rtainty , doubt or dispute betwee n the owner s on both sides of the proper ty in question over the true boundary line” but that the owner s did not ag ree or acquie sce that the boundary line was the “appr ox imate l ocation of Whetstone deed line.” The jury question identified t he boundary line by ref err ing to the “boundar

y line highlig hted in Attache d Ex hibit A.” Whetstone has not appea led the jury ’s finding s on acquie scenc e. See Moore v. Stone , 255 S.W .3d 284, 291 (Tex. App.—Waco 2008, pet. denied) (per son claiming that common boundary line “esta blished by acquie scenc e must show that he has title to the t rac t and that the owners of t he property on both sides of t he li ne agr eed to, acquie sced in, or recog nized such l ine as the boundary ” and “boundar y -by -ac quiesce nce . . . must stem from some initial uncer tainty or dispute over

the true bounda

ry line”). 8decla

red tha t Whetst one re cover from the Wilsons the tit le and possession of the disputed are a and decla red the boundary line betwee n the two trac ts. The district court ref ere nced and incorpora

ted the descr iption of the disputed are a in Ex hibit B in the court’s char g e to the jury

. T h e district court denied both parties’ reque sts for attorney ’s fee s but award ed t h e W i l sons one-ha lf of their survey costs and conditionally g rante d their reque st for attorney ’s fee s in the event that this Court overturns the jury ’s finding s on adver se possession. These cross a ppeals followe d.

ANALYSIS I n three issues, the Wil sons challeng e the leg al and fac tual sufficie ncy of the evidenc e to support the essential ele ments and the jury ’s finding s of adver se possession a nd contend that the trial court erre d in overr

uling the Wil sons’ objec t ions to the i nstructions and deny ing the Wil sons’ reque sted instructions for the adver se possession questions. On cross-a ppeal, Whetstone challeng es the awa rd of one -half of

the Wils ons’ survey

costs and the district cour t’s denial of he r reque st for attorney ’s fe es.

Adverse Posse

ssion The Wil sons challeng e the l ega l and fac tual sufficie ncy of the evidenc e to support adver se poss ession. They contend that the di strict court erre d in denying their m o t i o n fo r d i rec ted

ver d i ct an d submitt ing the adver se possession questions to the jury beca use Whetstone failed to establish essential elements of a claim for adver se possession under an y o f the adver se possession

s t at u t es at issue. The Wil sons contend that adver se possession “ca nnot happen acc idently or inadver tently ” and that there was no evidenc e for the requisite time period that (i) Whetstone intended

9to appropr iate or claim her neig hbor’s proper ty , (ii) her claimed acts amounted to actua l and visible appropr iation, (iii) there was hostile use of the disputed are a, or (iv) her use was exclusive. They also contend that the district court err ed in its instructions to the jury conce rning the challeng ed elements of adve rse possession.

1. Jury I

nstructions on Adve rse Possession As a preliminary matter, Whetstone contends that the Wil sons did not prese rve their complaints conce rning the jury instructions on adver se posses s i o n . But the Wil sons raised their objections with t h e d i s trict court, submitt ed their proposed instructions in writing , and the district
court ref used the instructions in writing

. See Tex. R. Civ. P. 278. We turn then to the Wil sons’ complaints conce rning the jury instructions. We revie w a trial court’s decision to submit or ref use a partic ular instruction to the jury under an abuse of discretion standard of revie w. Id. ; In re V.L.K. , 24 S.W .3d 338, 341 (Tex. 2000). “T h e t rial court has considera ble discretion to deter

mine nece ssary and proper jury instructions.” In re V.L.K. , 24 S.W .3d at 341. “When a tr ial court re fuses to submit a reque sted instruction on an issue raised by the pleadings and evidenc e, the question on appea l is whether the reque st

was rea sonably nece ssary to ena ble the jury to rende r a proper verdic t.” Shupe v. Lingafelter , 192 S.W .3d 577, 579 (Tex. 2006) (citation omitted); see also Tex. R. Civ. P. 277, 278. Error in the omission of an instruction is reve rsible only if t h e o m i s s i o n “proba bly cause d the rendition of an improper judgme nt.” Tex. R. App. P. 44.1(a) ; Shupe , 192 S.W .3d at 579; Bed, Bath & Bey ond, Inc. v. Urista , 211 S.W .3d 753, 757 (Tex. 2006).

10The Wil sons contend that the district court err ed by ref using to submit the following instructions with the adverse possession questions to the jury :

• Sporadic, irregular or occa sional use of land d o es n o t s upport a claim for adver se possession.

• Ex clusive possession means an exclusive d o m i nion over the land and an appropr iation of it to the claimant’s use a nd benef it.

• Visible appropr iation must be of such char acte r as to indicate unmistakably an asser tion of a cla im of exclusive ownership in the occ upant. The jury was instructe d conce rning the adve rse possession questions as follows:

“Adve rse Po s s es s ion” means an actua l and visible appropr iation of rea l proper ty , comm ence d and continued under a claim of rig ht that is inconsistent with and i s hostile to the claim of another person. “Hostile” means the acts perf ormed on the land wer e of such nature and char acte r as to rea sonably notify the true owner of the land that a hostile claim was being asser ted to the proper

ty

. Hostile use does not require an intention to disp o s s ess the rig htful owner , or even know that there is one. There must be an intention to claim the proper ty as one’s own to the exclusion of all others; howeve r mere occupa ncy of land without intention t o appropr iate is not hostile. “Peac eable Pos s e s s ion” means possession of rea l proper ty that is continuous and is not interrupted by

an adve rse suit to rec over the proper ty

. A person claimi n g t i t l e t o proper ty by adver se possession must show that the possession is not only actua l, but also visible, continuous, notorious, distinct, hostile and of such a char acte r as to indicate unmistakably an asser tion of a claim of exclusive owner ship of the occ upant. One of the way s actua l and visible appropr iation can be established is by a desig nedly enclose d fenc e, but not by a casua l fenc e. Where a fenc e exis ted prior to the claimant’s possession of the land and the claimant fails to demonstrate the purpose for which the fenc e was ere cted, the fenc e is a casua l fenc e. Repairing or maintaining a

11casua l fenc e, eve n for the express purpose of keeping the claimant’ s animals within the enc losed are a does not c hang e a c asual fe nce into a de signe d enclosure

.
The dis t ri ct court’s instructions defining “adve rse possession” and “pea cea ble possession” trac k the statutory definitions. See Tex. Civ. Prac. & Rem. Code Ann. §§ 16.021(1), (3) (West 2002); see Texas Dep’ t of Human Servs. v. E.B. , 802 S.W .2d 647, 649 (Tex. 1990) (no abuse of di scre tion in char g e that trac ked st atutory lang uag e in t he instruction and then asked controlling questio n ); Do ll v. Hurst , No. 03-02-00576- CV, 2003 Tex. App. L EXI S 6921, at *20-22 (Tex. App.—Austin, Aug

. 14, 2003, pet. denied) (mem. op.) (t ri al co urt did not abuse discretion with instr u ct i on that “followe d the lang uag e of [adverse possession] statutes prec isely ”). And the instructions corr ectly state the law of adver se possession, including the elements of actua l and visible appropr iation, exclusivi ty , and hostile use. See Tran v. Macha , 213 S.W .3d 913, 914-15 (Tex. 2006) (discussion of elements of adver se possession, citing and quoting Tex. Civ. Prac. & Rem. Code Ann. § 16.021(1); Rhodes v. Cahill , 802 S.W .2d 643, 645 (Tex. 1990); Ellis v. Jansing , 620 S.W .2d 569, 571 (Tex. 1981); Calfee v. Duke , 544 S.W .2d 640, 642 (Tex. 1976)); see also Natural Gas Pipeline Co. v. Pool , 124 S.W .3d 188, 193, 198 (Tex. 2003).

Fur ther, the instructions g iven to the jury include the substance of the Wil sons’ proposed instructions. The district court addre ssed the elements of exclusivi ty , visible appropr iation, and continuous use b y i n s t ru ct i n g the jury that there must be an intent to claim the proper ty to the “exclusion of all others” and that the possession had to be “visible, continuous, distinct, hostile, and of such a char acte r as to indicate unmistakably an asser tion of a claim of exclusive owner ship of the occupa nt.” We conclude that the Wil sons’ proposed instructions wer e not “re asonably nece ssary to

12enable the jury to rende r a proper verdic t” and that the district cou rt d id not abuse its discretion in

instructing the jury or ref

using the Wil sons’ instructions conce rning adver se possession. See Shupe , 192 S.W .3d at 579-80; Texas Dep’ t of Human Servs. , 802 S.W

. 2 d at 649; see also Tex. R. Civ. P. 277. W e over

rule the Wilsons’ third issue.

2. Sufficiency of the E videnc e I n their first and second issues, the W i l s ons contend that the district court err ed in denying their direc ted verdic t on adver se possession beca use Whetstone failed to pre sent sufficie nt evidenc e of actua l and visible appropr iation, hostile use, and exclusive use. On the same basis, they challeng e the leg al and fac tual sufficie ncy of the evidenc e to support the j u ry ’s fi ndings of adver se possession.

A leg al sufficie ncy challeng e may be sustained when the r ecor d discloses one of the following : (i) a complete a bsence of evide nce of

a vital fa ct; (ii) the cour

t is barre d by

rules of la

w

or of evidenc e from g iving weig ht to the only evidenc e offe red to prove a vital fac t; (iii) the evidenc e offe red to prove a vital fac t is no more than a mere scintilla; or (iv) the eviden ce es t ab lishes conclusively the opposite of the vital fac t. City of Keller v. W

ilson , 168 S.W .3d 802, 810 (Tex. 2005). I n deter mining whe ther a

finding is supported by

leg ally sufficie nt evidence , we view the evidence in the light most favor able to the finding , “cr editing favor able evidenc e if rea sonable jurors could, and disreg arding contra

ry evidenc e unless rea sonable j u ro rs co u l d not.” Id

. at 807. We indulge ever y

rea sonable infe renc e that would support the f inding. Id . at 822. When considering a fac tual sufficie ncy challeng e, we consider all of the evidenc e and “should set aside the ve rdict only if it is so contrary

to the overwhelming w eig ht of the evidenc e as 13to be clea

rly wrong and unjust.” Cain v. Bain , 709 S.W .2d 175, 1 7 6 (T ex . 1 9 8 6 ). Moreove r, it is within the province of

the jury to resolve c onflicts in the evidenc e. See City of Keller , 168 S.W .3d at 819-20; Golden Eagle Archery, Inc. v. Jack son , 116 S.W .3d 757, 761 (Tex. 2003) (jury rema ins sole judge of witnesses’ cre dibilit y and weig ht to be g iven their testimony ); McG alliard v. Kuhlmann , 722 S.W .2d 694, 697 (Tex. 1986) (jury can choose to believe one witness o ver other witnesses or resolve inc onsistencies in their testimony).

As the district court instructed th e j u ry , adver se possession means an “ac tual and visible appropr iation of rea l proper ty , commence d an d co n t inued under a claim of rig ht that is inconsistent with and hostile to the claim of another person.” See Tex. Civ. Prac. & Rem. Code Ann. § 16.021(1). Possession must be “ac tual, but also visible, continuous, notorious, distinct, hos tile (i.e. adver se), and of such a char acte r as to indicate unmistakably an asser tion of a claim of exclusive

owner ship in the occupa

nt.” Rhodes , 802 S.W .2d at 645; see Harlow v. Giles , 132 S.W .3d 641, 646 (Tex. App.—Eastland 2004, pet. denied)

. The question of adv er s e possession is a fac t question. Bywaters v. Gannon , 686 S.W .2d 593, 595 (Tex. 1985); Harlow , 132 S.W .3d at 647. And Whetstone had the burden of pleading and proving each of the elem en t s of her adver se poss ession claim. See Rhodes , 802 S.W .2d at 645.

Be cause any one of the four jury finding s of adver se possession supports the challeng ed elements and the district court’s finding of adver se possession, we limit our revie w of the evidenc e to support question 6. See Tex. R. App. P . 47.1. Question 6 asked the jury : 6

Question 6 trac ked section 16.028 of the civil pr actice and reme dies code. See Tex. Civ. 6 Prac. & Rem. Code Ann. § 16.028 (West 2002). Section 16.028 provides in re levant par t:

14Do y ou find from a preponde ranc e of the evidenc e that Mrs. Whetstone, or those

under whom she claims, have held peac eable and adver se possession, of t h e land highlig hted and identified in Ex hibit B, in g ood faith under a deed or other instrument 7 purporting to c onvey and include the proper ty that is rec orded in the deed rec ords of Hay s County , Texas for any period of twenty -five (25) cons ec utive y ear s prior to Aug ust 13, 2004? Viewing the evidenc e in the light most favor able to the jury ’s finding , there was evidenc e that:

• The Whetstones purcha sed their trac t of land in 1957 and the leg al descr iption in their dee d included the disputed a rea and re fer ence d the fe nce.

• The Whetstones paid taxes on their trac t of land, including the disputed are a, from 1957 for

war d.

• There was no g ate acc ess in the fenc e, that had been in the same approximate location from the 1940s at least, until the Wil sons added the f ence afte r they purcha sed their tra ct of land. (a) A person, reg ardle ss of whether the person is or has been under a leg al disability , may not maintain an ac tion for the re cover y of re al prope rty

held for 25 y ear s befor e the commence ment of the action in peac eable and adver se possession by another who holds the proper ty in g ood faith and under a deed or other instrument purporting to c onvey the proper ty that is rec orded in the deed r ecor ds of the county wher e any

part of the rea l property

is located. (b) Adver se posses s i o n o f any part of the rea l proper ty held under a rec orded deed or other rec orded instrument t h at purports to convey the proper ty extends to and includes all of the proper ty descr ibed in the instrument, even though the instrument is void on i ts face or in fac t.

See id. Questions 3 throug h 5 trac ked the statutory lang uag e in sections 16.025 thro u gh 1 6

. 0 2 7

. Id. §§ 16.025-16.027 (West 2002). The jury also answe red those que stions affirmatively

. As previously stated, Ex hi b i t B wa s an excerpt from the survey with the disputed are a 7 highlig hted. 15• The Whetstones trea ted the fenc e as the boundary line betwee n the two trac ts and deeds on both sides’ chains of title support that the Whetstones owned the disputed are a fr om 1957 forwa rd.

• The Whetstones told Mr. Nations, a prior owner in the Wil sons’ chain of title, that they owned the disputed a

rea .

• The Whetstones trea ted th e d i s puted are a in the same manner as the rest of their ranc h, including using it for rec reation; repla cing , repa iring , and maintaining the fenc e; clea ring the cre ek bed; and continuously gra z ing livestock in the disputed are a.

• The Whetstones used the disputed are a exclusively afte r they purcha sed their trac t of land. 8

This evidenc e supports that the Whetstones actua lly and visibly appropr iated the disputed are a, that their claim was hostile, and their use exclusive. See Rhodes , 802 S.W .2d at 645; Harlow , 132 S.W .3d at 646. The W ilsons do not contend that the W hetstones acted i n b ad fa i t h at an y time, and it was

Whetstone testified: 8 Q. I n terms of the use of the proper ty there , Ms. Whetstone, is it true that it used to be for the neig hbors to swim and fish in that cre ek? A. Not afte r we owned it. Her nephew also testified that he ha d not seen a ny one using the disputed are a: Q. Prior to 2002 had y ou ever seen any one, other than Mr. and Mrs. Whetstone and y our fa

mily , using this ar ea of

the cr eek? A. Oh, any one other than family ? No. No. In fac t, that’s fairly close to the house. Had there been any other people there , there would have been a lot of noise and I

know my uncle would ha

ve bee n there in a hea

rtbea t. 16undisputed that their deed included t h e disputed are a and that it was rec orded for the statutorily

require d limit ations period of twenty -five y ear s. See Tex. Ci v. Prac. & Rem. Code Ann. § 16.028.

A) Did W

hetstone’s testi mony that she did not intend to “appropriat e” land preclude he r adverse possession claim? The Wil sons urg e that Whetstone’s testimony that she did not intend to “appr opriate” her neig hbors’ proper

ty and that she thoug ht that she owned the disputed are a prec ludes an adver se possession claim beca

use adver se possession cannot be “ac cidental” or “inadve rtent.” The Wil sons rely upon the supreme court’s statement in Ellis that “[m] ere occupa ncy of the land without any intention to appropr iate it will not support the statute of lim i t at ions.” 620 S.W .2d at 571 (citation omitted). We find Ellis distinguishable.

I n Ellis , the J ansing s wer e not claiming adver se possession under a rec orded deed but under the ten-y ear limit ations period. They also had n o t o wn ed t h e proper ty that adjoined the disputed are a for ten y ear s so they had to rely upon the prior owner of their proper ty to establish their adver se possession c laim. Id

. at 570-71. The prior owner testified that, althoug h he “assumed” he owned the disputed are a, he “neve r claimed or intended to cla i m an y proper ty other than that descr ibed in his deed” and that the disputed are a was “neve r fenc ed” and “entr ance onto [t he disputed

are a] was not obstructed.” Id

. I n that context, the s u p re m e court explained “nake d possession

unacc ompanied with any claim of rig ht will never constitute a bar.” Id

. at 572. I n contra st, the evidenc e here s h o we d more than “nake d possession” or “mer e occupanc y .” The evidence showed that the entra

nce from the Wil sons’ side to the di s p u t ed are a was “obstructe d” by a fenc e until the

17Wil sons added a g ate, the descr iption in the Whetstones’ deed included the disputed are a within their

trac t of land, and the Whetstones paid tax es on the disputed ar ea f rom 1957 forw ard. See id. We find the supreme court’s analy sis of the adver se possession claim in Natural Gas Pipeline instructive. 124 S.W .3d at 198. I n that case , the supreme court, citing and quoting Calfee, held that the oil and g as lessees adver sely possessed mineral interests despite not being awa re that their lease s had terminated. Id

. I n rea ching its holding, the supreme court reje cted a simil ar argument to the Wil sons’ argument that Whetstone did not have the requisite intent to appropr iate beca use she did not intend to take her neig hbors’ proper ty

. The supreme court explained that a belief that one is the “rig htful owner ” with “ac tual and visible possession and use” satisfied the statutory require ments for adver se possession and “ca nnot be defe ated by

. . . the absenc e of a rea liz ation that there could be other c laimants for the la

nd.” Id . (quoting Calfee ). Other wise, the supre me cour

t rea soned:

the running of limit ations is suspended until the rec o rd t i tleholder obtains actua l knowledg e of what it owns. This is a novel proposition indeed. I t would mean, for example, that limit ations would be suspended whene ver heirs did not rea liz e that they had inherited an interest. That has never been the law in Texas. A rec ord titleholder’s ignor ance of wha t it owns does not affe ct the running of limitations.

Id

. Simi larly , in Calfee , the person claiming b y ad v er se possession “neve r thought of himself as claiming adver sely to any one for the simple rea son that he thought that he was the rig htful

owner and had no c ompetition for that owner ship.” 544 S.W .2d at 642. The area in dispute in that

case was not included in the possessor’s deed, but it was “fe nced” with the proper ty that was convey ed to the adver se posses s o r in the deed. Id

. at 641. The supreme court held that the

18possessor’s belief that he was the rig htful owner “couple d with his actua l and visible possession and

use” sa tisfied the statutory require ments of his adver se cla im. Id . at 642. Her e, from 1957 when Whetstone a nd her husband purcha sed their trac t of land, the descr iption of their trac t of land in their rec orded deed included the disp u t ed ar ea , they trea ted the disputed are a in the same w ay that they trea ted the re st of t heir land, and they believed they owned the disputed are a and that they “had no competition for that owner ship.” See id

. Whetstone testified

conce rning her intent to “a ppropriate ” the disputed a rea :

A. We ha

ve not notified any

body that we we re a

ppropriating land [t he disputed are a]. Q. Did y ou notify them that y ou wer e making some ty pe of hostile claim to their land? A. We owned it. Why should we? Q. So in terms of when y ou boug ht it—is it f air to say , from what y ou’re telling me now, when y ou boug ht the proper ty y ou thought that the fenc e was the boundary and y ou acte d as if it was the bounda ry based on tha t thought? A. Yes. * * * Q. Do y ou intend to claim as y ours all of the proper ty on the west bank of Onion Creek? A. To the fe nce, y es. Q. Up to the fe nce? A. Yea

h. Q. You intend to claim that as y our own? A. Yes.

19* * *

Q. For

how long have y ou intended to claim that as y our own? A. Since we boug ht it. * * * Q.

. . . We’re talking about a fenc e that runs along the west bank of Onion Creek. A. Yes. Q. Every

thing on the east side of that, have y ou—in t h e 5 0 y ear s that y ou’ve owned y our prope rty

have you claimed that a s y our prope rty ? A. Yes. Q. To the exclusion of ever y body else? A. Yes. Q. You have n’t ag ree d to share it with any body ? A. No.

We conclude that Whetstone’s testimony that she did not intend to “appr opriate” land did not fore close her adver se possession claim of the disputed are a. See Natural Gas Pipeline , 124 S.W .3d at 198. B) Di d W hetstone’s evide nce of acquiesc ence preclude her adverse possession claim? The Wil sons also contend that Whetstone’s claim and proof of acquie scenc e was fata l
to her adver se possession claim b e c ause acquie scenc e by the parties to the boundary line was mutually exclusive with her claim being hostile. Even if we assume that the claims are mutually exclusive,

20howeve r, the law allows a claimant to plead conflicting alternative theories, and the jury may choose

the theory that it believes based upon its resoluti on of the conflicting evidenc e. See Tex. R. Civ. P. 48; Low v. Henry , 221 S.W .3d 609, 615 (Tex. 2007); City of Keller , 168 S.W .3d at 819-20. Her e, the jury resolved the conflicting evidenc e to find that the owner s of the proper ty on both sides of the disputed are a did not ag ree or acquie sce to the boundary line as propose d b y Whetstone but that Whetstone had adve rsely

possessed the disputed a

rea . C) Did evide nce contrary to the j u r y’s finding preclude W hetstone’s adv erse possession claim? The Wil sons f

urther point to evidenc e that (i) Whetstone did not e x clusively use the disputed are a including Wehrmann’s testimony that she used the disputed are a when she visited her mother-in-la

w who was a prede cessor in interest to the Wil sons ; (ii) Whetstone’s testimony that the 9

Even if the jury believed Wehrmann’s testimony , Whetstone could still satisfy the 9 twenty -five y ear limit ations period betwee n the period 1973 to 2004, a thirty -one y ear period. See Tex. Civ. Prac. & Rem. Code Ann. § 16.028. Wehrmann testified that her mother-in-la w’s land was sold shortly

afte r she died in 1973. The Wil sons also point to a letter th at was revie wed by Whetstone’s title expert and Whetstone’s testimony conce rning Mr. Nations’s actions diverting water from Onion Creek to form a pond on his trac t of land. The letter, howeve r, was admitted subject to a limit ing instruction a nd not “to prove the truth of t h e m at t er asser ted.” Tex. R. Evid. 801(d). Fur ther, the Wil sons inacc urate ly char acte rize Whetstone’s testimony conce rning Mr. Nations’s actions. For example, the Wil sons state that Whetstone testified that she and her husband did not advise Mr. Nations that they claimed owne rship in the cre ek. B ut, Whetst one testified: Q. (B Y THE COURT) Did y ’all ever have occa sion to tell Mr. Nations that he did not own any

proper ty on y our side of tha t fenc e? A. Yes. Q. When did that happen? 21fenc e was in place when she and her husband boug ht the proper ty and that she did not know who built the fe nce, w hen it was built, or why it wa s built; and (iii) the lack of testimony

that the Whetstones built any thing on t h e d i s puted are a or posted no trespass signs. Given this evidenc e, the Wil sons contend that Whetstone’s use was not exclusive and that the fenc e was a “ca sual fenc e” that does not support “ac tual and visible appropr iation.” See Tran , 213 S.W .3d at 914 (“Joint use is not enoug h.”); Rhodes , 802 S.W .2d at 646 (discussion of “‘casua l fenc es’ and fenc es t hat ‘designe dly enclose ’ an

are a”)

. They also urg e that using the disputed are a to g raze livestock and occa sionally for rec reational
use, such as swimming, fishing, or canoe ing, was not enoug h to show actua l or visible appropr iation

or hostile use. See McD onnald v. W einacht , 465 S.W .2d 136, 141-42 (Tex. 1971) (“I t is acc ording ly well settled that the mere g razing of land incidentally enclose d as a result of the construction of fenc es built for another purpose does n o t const itute possession that will ripen into title by limit ation.”); V a u g han v. Anderson , 495 S.W .2d 327, 332 (Tex. Civ. App.—Texarkana 1973, writ ref ’d n.r.e.) (“O ur courts have uniformly held that sporadic, irregular and occa sional use of land does not satisfy the statutes. ”)

. The Wil sons further discount Whetstone’s evidenc e that she and her husband paid
taxes on the disputed are a from 1957 forwa rd beca use their tax pay

ments did not specific ally identify the disputed are a and the Wil sons paid taxes on the disputed area from 2006 for

war d. The Wil sons pa

rse the Whetstones’ uses of the disputed are a. Although a particula r

use by the Whetstones may not have been enoug h standing alone to support the jury ’s

A. That happe ned bac k in 1974. I n any event, it was within the province of the jury to resolve any inconsistencies in her testimony

. See McG alliard v. Kuhlmann , 722 S.W .2d 694, 697 (Tex. 1 9 8 6) (jury can choose to believe one witness over othe r witnesses or resolve inc onsistencies in their testimony).

22adver se possession finding , we consider the entirety of the evidenc e. See Mead v. RLMC, Inc

. ,

225 S

. W

. 3 d 710, 716-17 (Tex. App.—For t Worth 2007, pet. denied) (evide nce “take n toge ther” sufficie nt to cre ate fac t issue on adver se possession; require ment of “ac tual and visible use” satisfied by combination of g razing and other non-g razing activities). We also consider “the nature of the land” at issue. See W

all v. Carrell , 894 S.W .2d 788, 800 (Tex. App.—Ty l er 1 9 9 4, writ denied)

. Her e, viewing the evidence in the l ight most favor able to the j ury ’s findi ng s, the nature of t he land was rural, t he W hetstones us ed the disputed are a in the same ma nner a s the rest of their ranch, and they paid taxes on the land—which included the disputed are a—fr om 1957 forwa rd. See City of Keller , 168 S.W .3d at 807, 822; Rhodes , 802 S.W .2d at 645-46 (pay ment of taxes some evidenc e of adver se possession); Carrell , 894 S.W .2d at 800. Fur ther it was for the jury to resolve conflicts and inconsistencies in the e vidence

. See City of Keller , 168 S.W .3d at 819-20.

We conclude then the evidenc e was leg ally sufficie nt to support the jury ’s aff irmative finding in response to question 6 and the challeng ed elements of adver se possession. See id. at 810; Bywaters , 686 S.W .2d at 595; see also Mead , 225 S.W .3d at 716-17. Viewing all of the e vidence ,

we also conclude that the evidenc e was fac tually sufficie nt t o s u pport the jury ’s finding and the challeng ed elements of adver se possession. Cain , 709 S.W .2d at 176. We overr ule the Wil sons’ first and sec ond issues. 1 0

To the extent the Wil sons complain that the evidenc e was insufficient to support the jury ’s 1 0 finding of adver se possession of proper ty on the west side of the fenc e, section 16.028(b) of the civil prac tice and reme dies code provides that “[a]dverse possession of any part of the rea l proper ty held under a rec orded deed or other rec orded instrument that purports to convey the proper ty extends to and includes all of the proper ty descr ibed in the instrument, even though the instrument is void on its fac e or in fac t.” See Tex. Civ. Prac. & Rem. Code Ann. § 16.028(b); see also id. § 16.026(c) (under the ten-y ear limit ations period, “[p] eac eable possession of rea l proper ty held u n d er a duly 23Sur vey

Costs I n her first issue on cross-a ppeal, Whetstone argues that the district court err ed by

awa rding one-ha lf of the Wil sons’ cost s t o o b t ai n the survey prepa red by Metca lf & Sanders. Whetstone does not challeng e the amount of the awa rd but contends that the d i s t ri ct court did not have the authority to tax the survey costs. Whetstone also urg es that rules 131 and 141 of the rules 1 1 of civil proce dure prec lude the awa rd of the survey costs. See Tex. R. Civ. P. 131, 1 41 ; Furr’s 1 2 Supermarke ts, Inc. v. Bethune , 53 S.W .3d 375, 376-78 (Tex. 2001) (addr essing awa rds of costs under rules 131 and 141). Whetstone contends that she was the preva iling party and that the district court did not state “g ood cause ” for assessing costs in a manner differ ent from rule 131. We do not rea ch Whetstone’s arguments conce rning rules 131 and 141 beca use our resolution of t he dis trict court’s authority to awar d the survey

costs is disposi tive. See Te x . R. App. P. 47.1. I n th e ir a n s w e r a n d c o u n te rcla im for decla

ratory judgme nt, the Wil sons alleg e that the y “nec essar ily incurre d rea sonable and nece ssary expenses for the profe ssional service s of a survey or” and that “[a]n awa

rd of

. . . survey or fees t o the W ilsons would be equit ab l e and jus t and therefor e authorized by Section 37.009 of the [Act] and other statutes and principles of equity .” Section 37.009

reg istered dee d or other memorandum of title that fix es the boundarie s of the possessor’s claim extends to the boundarie s specifie d in the instrument”). Her e, the Wil sons’ expert Sanders plotted the boundar

y line as desc ribed in the Whetstones’ dee d as fa lling on the we st side of the fe nce. The Wil sons submitt ed an aff idavit from Sanders that the cost of the actua l work to 1 1 prepa re the survey

was $17,219.60 a

nd that amount did not include any expert fee s. Rule 131 provides for the awa rd of costs to the preva iling party and rule 141 only allows 1 2 courts to assess costs in a manner differ ent from rul e 1 3 1 “f o r good cause , to be stated on the re cord.” 24provides that, “[i] n any proce eding under this chapte r, the court may awa rd costs

. . . as are equitable and just.” Tex. Civ. P rac . & Re m. Code Ann. § 37.009.

We revie w the awa

rd of relief pursuant to section 37.009 for abuse of discretion. See Oake v. Colli n County , 692 S.W .2d 454, 455 (Tex. 1985) (dec ision to g rant or deny relief under section 37.009 of the Act within the trial court’s discretion). A trial court abuses its discretion when it acts without ref

ere nce to any g uiding rules or principles. Downer v. Aquamarine Operators, Inc ., 701 S.W .2d 2 38, 241-42 (Tex

. 1985). Whether a particula r ex pense is permitted by statute or rule
to be rec overa

ble as costs, howeve r, is a question of law that we revie w de novo . See Ferry v. Sacke tt , 204 S.W .3d 911, 912 (Tex. App.—Dallas 2006, no pet.); see also Tex. Civ. Prac. & Rem. Code Ann. § 31.007(b) (West 2008) (costs may be included in judgme nt as “may be permitted by these rules and state statutes”)

. “‘Costs’ usually ref ers to fee s and char g es require d by law to be paid to the courts or

some of their office rs, the amount of wh i ch i s fi x ed by statute or the court’s rules e.g . filing and service fee s.” Sterling Bank v. W illard M, L.L.C

. , 221 S.W .3d 121, 125 (Tex. App.—Houston [1s t Dist.] 2006, no pet.) (citation omitted). “[C] ase law provides costs ar e not re cover able unless they

are expressly provided for by statute, rule, or under principles of equity .” Ferry , 204 S.W .3d at 912 (citation omitted). “Ge nera lly , in Texas, ex p en ses incurre d in prosec uting or defe nding a lawsuit

are not rec overa

ble as co s t s , unless permitted by a statute or equitable principle.” Sterling Bank , 221 S.W .3d at 125 (c itation omit ted).

The district court made the following finding s of fac t and conclusions of law

conce rning the survey

costs:

25I. F INDING S OF F ACT

2. The survey perf

ormed by Metca lf & Sanders was used as evi d ence at the preliminary

hear ing a nd the trial by

both parties and by

the Court. 3. The surve y p er fo rm ed by Metca lf & Sanders was used by the C ourt when it made its ruling finding the boundary line betwee n the proper ties at issue as a result of the 1917 c onvey ance . 4. The survey costs by M et ca l f & Sanders in the amount of $17,219.60 wer e rea sonable a

nd nece ssary . II. CONCLUSIONS O F LAW 5. Def

endants preva ile d o n t h e issues of rec ord title, acquie scenc e, and on the decla ratory judgme nt. * * * 9. I t is equitable and just and there is g ood cause for the awa rd of one-ha lf of the survey costs to Defe ndants in the amount of $8,609.80. Although the district court uti liz ed the survey , including in char g ing the jury and in the final judgme nt and both parties soug ht survey costs, Metca lf & Sanders was not appointed by the court to pre pare the survey , and Sanders testified as an expert witness for the Wil sons. See Tex. R. Civ. P. 796 (authorizing court t o appoint survey or in trespa ss to tit le ac tions); Cardenas v. Varner , 182 S.W .3d 380, 385 (Tex. App.—Amar illo 2005), affirmed as modified , 218 S.W .3d 68 (Tex. 2007) (holding that costs of survey or unilatera lly hired by party and not order ed by court not taxable as court costs); W hitley v. King , 581 S.W .2d 541, 544 (Tex. C i v . Ap p . — Fo rt Worth 1979, no writ) (cour t “without authority ” to assess as costs the expense s o f a survey or who was not court-a

ppointed but perf ormed his duties “solely ” on plaintiffs’ be half in trespa ss to try title suit ).

26The W ilsons cite Guerr a v. P er ez & Assocs ., 885 S.W .2d 531, 533 (Tex. App.—El

Paso 1994, no writ), to support the district court’s authority to assess survey costs. But, the survey or in Guerra was court-a

ppointed. Id

. at 532 (cour t-appointed survey or filed plea in intervention asking that his costs be assessed ag ainst the parties)

. The Wil sons have failed to provide authority , and we have found none, for awa rding the expense of a survey prepa red by an expert witness not appointed b y t h e court. See Ferry , 204 S.W .3d at 912; see also Adams v. Stotts, 667 S.W .2d 798, 801 (T ex . App.—Dallas 1983, no writ) (expert fee s nece ssary to establish evidentiar y matters normally are not “costs”) ; Griffin v. Carson , No. 0 1 -08-00340- CV, 2009 Tex. App. L EXI S 3843, at *19 (Tex. App.—Houston [1st Dist.] May 28, 2009, pet. denied) (mem

. o p . ) (citations omitted) (“I t is well-settled that, ‘re g ardle s s of any g ood cause shown, costs of experts are mere ly incidental expenses in prepa ration for trial and not re cover able.’ ”). On t his rec ord, we conclude that the W ilsons’ expense to obtain the s urvey was not

rec overa ble as “costs” under section 37.009 of t he civil prac tice and reme dies code. See Tex. Civ. Prac. & Rem. Code Ann. § 37.009. We sustain Whetst one’s f irst issue.

Attorn ey’ s Fees I n her second issue on cross-a ppeal, Whetstone c halleng es the district c ourt’s denial of her reque st for at t o rn ey ’s fee s under the Act. She contends that the district court err ed by concluding that attorney ’s fees were not rec overa ble for adver se possession and failing to consider

aw arding her attorney ’s fee s under the Act. She reque sts that the issue of her attorney ’s fe es b e remanded to the district court for rec onsideration. Whetstone relies upon sections 37.004 (c ) an d 37.009 of the Ac t. See id . §§ 37.004(c) , .009.

27Section 37.004 addre sses the s cope of available re l i ef u n d er the Act. Id

. § 37.004.

Subsection (a) provides that “[a] person inte re s t ed u n d er a deed

. . . may have deter mined any question of construction or validity arising under the instrument

. . . and obtain a decla ration of rig hts, status, or other leg al rela tions there under.” Id. § 37.004(a)

. Sub s ec t ion (c) provides: “Notwithstanding Section 22.001, Property Code, a pe rson desc ribed by Subsection (a) may obtain

a deter mination under t h i s ch ap t er when the sole issue conce rning title to rea l proper ty is the deter mination of the proper boundary line betwee n ad j o i n i n g proper

ties.” See id

. § 37.004(c)

. 1 3 Pursuant to section 37.009 of the Act, “the court may awa rd

. . . rea sonable and nece ssary attorney ’s fe es as are equitable and just.” See id

. § 37.009. We revie w the awa rd of attorney ’s fee s un d er the Act for abuse of discretion. See Bocque t v. Herring , 972 S.W .2d 19, 20-21 (Tex. 1998); Downer , 701 S.W .2d at 241-42.

As an initial matter, Whetstone contends that the district court err ed when it conclude d that the “adverse possession [cause of action], in my opi n i on, is not available for attorney ’s fees.” But the district court was corr ect conce rning Whetstone’s statutory adver se possession c laims. See Tex. Civ. Prac. & Rem. Code Ann. §§ 16.025-.028. “Te x as has long followed the ‘Amer ican Rule’ prohibiting fee awa

rds unless specific ally provided by contra ct or statute.” MBM Fin. Corp.

v. W oodlands O

perating Co. , 292 S.W .3d 660, 669 (Tex. 2009) (citation omitted). Section 16.034, the section o f c h a

p te r 1 6 addre ssing attorney ’s fee s in adver se possession case s, is not applicable here

.

Section 2 2.001 of the proper ty code provides that a “tre spass to try title action is the 1 3 method of deter

mining title to lands, tenements, or other rea l proper ty .” See Tex. Prop. Code Ann. § 22.001 (West 2000). 28See Tex. Civ. Prac. & Rem. Code Ann. § 16.034 (West Supp. 2009). That section does not support 1 4

an awa rd of attorney ’s fee s to Whetstone, the party in possession and claiming by adver se possession. See id .; see also Bernal v. Chavez , 198 S.W .3d 15, 21 (Tex. App.—El Paso 2006, no pet.) (discussing applicability

of sec tion 16.034). I n an y event, the district court considere d Whetstone’s reque sts for attorney ’s fees under the Act and explained that it was deny ing both parties’ reque st for attorney ’s fe es b ec au se i t did not believe a f

ee a war d would be “e quitable and just”:

Section 16.034, titled “Attorney ’s Fe es,” pr ovides: 1 4 (a) I n a suit for the possession of rea l proper ty betwee n a person claiming under rec ord title to the proper

ty and one claiming b y ad v erse possession, if the preva iling party rec overs possession of the proper ty from a person unlawfully in actual possession, the c ourt: (1) shall awa

rd costs and reas o n able attorney ’s fee s to the preva iling party if the court finds that the person unlawfully in actua l possession made a claim of adver se possession that was g roundless and made in bad fa ith; and (2) may awa

rd costs and rea sonable attorney ’s fee s to the preva iling party in the absenc e of a

finding descr ibed by

Subdivis ion (1). (b) To rec over attorney ’s fee s, the person seeking possession must g ive the person u n l awfully in possession a written demand for t hat person to vacate the premises. The demand must be g iven by reg istered or ce rt ified mail at least 10 day s befor e filing the claim for rec overy of possession. (c) The demand must state that if the pe rson unlawf ully in possession does not vacate the premises within 10 day s and a claim is filed by the person seeking possession, the court may enter a judgme nt ag ainst the person unlawfully in possession for costs and attorney ’s fee s in an amount deter mined by the court to be re asonable

. Tex. Ci v. Prac. & Rem. Code Ann. § 16.034 (West Supp. 2009). 29Her e’s my ruling on attorney ’s fee s. I do believe that the law would allow y ou—allow

me, under my discretion if it’s just and rig ht, to awa rd attorney ’s fee s . . . . But if my ruling s hold up, which Ithink they will on the adver se possession, Ican’ t ge t, under my d i s cre tion, to believe that it’s equitable and just to awa rd attorney ’s fee s in this case . . . . I ’m g oing to deny them as not being equitable and just when looking at the larg e picture

. * * * There wer e bas i ca l ly four cause s of action that wer e broug ht. You [W hetstone] ultimately

preva iled on the adver se possession. You did not prevail, in my opinion, on the other thre e ca

uses of a ction that y ou broug ht. . .

. The a dverse possession, in my opinion, is not available for attorney ’s fe es. As to the other three issues, [W hetstone], with all due respec t—and I understand that it’s part of the bi g picture, which is why

I ’m not awa

rding any attorney ’s fe es. You did not preva il.

See T ex . Civ. Prac. & Rem. Code Ann. § 37.009. The district court considere d the “big picture” —that the court had g rante d a direc ted verdic t that the Wil sons wer e the rec ord title holders
to the disputed are a and the primary fac tual disputes tried to the jury wer e Whetst o n e’ s cl ai m s of acquie scenc e and her statutory adver se possession claims. Even if we assume then that the “sole issue” betwe en the pa

rties was “the determination of the prope r boundar y line” within the scope of section 37.004(c) of the Act, we cannot conclude that the dis t ri ct co u rt abused its discretion by 1 5

Given the languag e of section 37.004 and the district court’s decla ration that the Wil sons 1 5 had rec ord title to the disputed are a based upon the district court’s construction of the rele vant deeds, we question whether the “sole issue” was a boundary dispute within the para meter s o f section 37.004(c)

. See Tex. Civ. Prac. & Rem. Code Ann. § 37.004; City of San Antonio v. City of Boerne, 111 S.W .3d 22, 25 (Tex. 2003) (whe n construing a statute, courts beg in with the plain lang uag e and apply its common meaning ); Lile v. Smith , 291 S.W .3d 75, 78 (Tex. App.—Texarkana 2009, no pet.) (sec tion 37.004(c) inapplicab l e t o dispute over owner ship betwee n two adjoining landowner s of “we ll-defined parc el of land”)

. The Texarkana court o f ap p eals, fac ed with the applicability of section 37.004(c) , stated the test for deter mining whether the case is a “boundar y dispute”: “I f there would have been no c ase but for the question of boundar

y , then the ca se is nece ssarily a boundar

y case even though it may involve questions of title.” See Lile , 291 S.W .3d at 78 (quoting Plumb 30denying Whetstone’s reque st for attorney ’s fee s. See id. §§ 37.004(c) , .009; Bocque t , 972 S.W .2d at

20-21. We overr

ule Whetstone’s second issue.

CONCLUSION Having considering the parties’ various issues on appea l, we aff irm the district court’s judgme nt decla

ring that Whetstone rec over titl e and possession from the Wil sons of the disputed are a, decla ring the boundar

y line betwee n the parties’ adjoining tracts of land, and deny ing both pa

rties’ reque sts for attorney ’s fee s. Be cause we conclude that the W i l sons’ survey costs wer e not

rec overa ble, we modify

the judg ment to delete the a war d of surve y

costs to the Wil sons.

__________________________________________ J an P. Patterson, J ustice Be fore J ustices Patterson, Pury ear and He nson Modified and, a s Modified, Aff irmed Filed: Apr il 20, 2010

v. Stuessy , 617 S.W .2d 667, 669 (Tex. 1981)). 31