(Texas) Neighbors' new fence is on my land, right before construction is supposed to start on my new garage. Can I remove the fence?

     Adverse Possession

     In their third issue, the Alvarezes contend that they acquired title to the property west of the fence by adverse possession. Hernandez counters that the Alvarezes never pled an adverse possession claim.

     "In order to claim title by limitation upon adverse possession, a party must plead it specifically." Smith v. Brooks, 825 S.W.2d 208, 210 (Tex. App.—Texarkana 1992, no pet.); Tex.R.Civ.P. 94. Assuming, without deciding, that the trial court properly granted the Alvarezes' request to amend their pleadings to add a claim requesting the trial court to determine the boundary between the two properties, the amended pleading does not allege ownership by adverse possession.[4] The specific paragraph added by the amended petition reads as follows:
  1. Establish Boundary 8.1 Plaintiffs would further show that the 100 feet [sic] hurricane fence was an established partial boundary between the parties from the 1970s up until it was removed on July 4, 2011. By and through acquiescence of the certain line when it has been disputed constitutes a strong presumption that it is the true line, except against the state or its subdivisions, and when one of the parties, by their own acquiescence, misleads the other to his or her injury, the line acquiesced in becomes established by estoppels [sic]. The Plaintiffs would further have the court maintain the partial boundary and from said 100 [sic] partial boundary run north to the established marker that is towards the fence that borders Jesus Maria Alvarez's property. Rather than allege a claim for adverse possession, the Alvarezes added a claim that the boundary had been established by acquiescence. See Kirby Lumber Corp. v. Lindsey, 455 S.W.2d 733, 739 (Tex. 1970) (setting forth elements of claim); Moore v. Stone, 255 S.W.3d 284, 291 (Tex. App.— Waco 2008, pet. denied) (same).[5] Accordingly, because the Alvarezes never pled adverse possession, the trial court did not err in refusing to award title to them based on that ownership theory. The Alvarezes' third issue is overruled.

     The trial court's judgment is affirmed.


[1] 6.64 acres divided by nine equals .7377 acres, while 6.64 acres divided by eight equals .83 acres.

[2] One owner owned three shares, while the other owner owned one share.

[3] Lalo is Elias's brother.

[4] The original petition alleged a trespass claim based on the Alvarezes' allegation that they owned 1.66 acres of land by deed. Thus, they alleged outright ownership through conveyance, not ownership by adverse possession.

[5] The Alvarezes do not raise any issues regarding the boundary by acquiescence theory; however, we note "When the true location of the line is conclusively proven, mere acquiescence is another line in the mistaken belief that it is the true line will not support a finding that such other line is the true line." Kirby Lumber Corp., 455 S.W.2d at 739.

/r/legaladvice Thread