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Click here for the full text of this decision FACTS:Robert and Jane McGehee bought a 566-acre ranch partially located in Hood County in 1995. Mike and Tawn Perkins bought the property directly to the south of the McGehee tract, all in Hood County, in 1996. The Perkinses sued the McGehees in October 2001, saying the McGehees erected a fence on the land between the two tracts, which encroached on the Perkinses’ property and destroyed trees on their land. The McGehees asserted adverse possession as their affirmative defense; the claim that their predecessor-in-interest, Steven Pedro, grazed cattle, maintained the disputed fence and removed trees from the area, exclusive to the rights of all others, since 1982. The trial court granted a take-nothing judgment against the Perkinses, entering findings of facts and conclusions of law: 1. the fence at issue had been in the same location since at least 1982; 2. the fence is not a casual fence; 3. the McGehees and their predecessors-in-interest used the disputed property for grazing cattle; 4. the ranch manager for the predecessor-in-interest had made repairs, cleared brush, and planted grass in the disputed area; 5. the McGehees’ and their predecessors-in-interest’s use had been adverse, hostile, and exclusive to anyone else for a period of at least ten years; and 6. the fence line established by the evidence is the legal boundary between the parties’ real property. The Perkinses appeal. HOLDING:Affirmed. The court looks at the evidence regarding the existence of the fence, including the metes and bounds description of the two tracts on file at the courthouse, maps and aerial photographs. The photograph, from 1984, clearly shows the fence, and there was additional evidence that it was in its present location since at least 1982. Also, considering the trial court findings, the court holds that there was sufficient evidence to identify the disputed property with reasonable certainty. The court next examines the evidence of actual appropriation of the property, and notes that when the person claiming adverse possession buys property with an existing fence on it but who does not demonstrate the purpose for which the fence was erected, the fence is called a “casual fence.” A claimant must modify the casual fence so as to change its character into an enclosure fence. An exception to this requirement is when the claimant can prove significant non-grazing use of the land such that the true owner would have notice of the hostile claim. In this case, there was evidence that Pedro used the property to graze cattle, had repaired and improved the existing fence, and had removed trees and brush from the property. Additionally, Pedro’s ranch manager testified to the several repairs he made to the fence from 1982 to 1995. He also testified to the grass he planted on the cleared portion, which he fertilized, mowed and treated for briars and weeds. The court concludes that the fence in question was not a casual fence, and that the use of the fence and the land near it has been actual and visible. The court finds Pedro’s use of the fence from 1982 to 1995 satisfies the 10-year use rule for adverse possession. OPINION:Livingston, J.; Cayce, C.J.; Livingston and Holman, JJ.

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