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Click here for the full text of this decision FACTS:This appeal arose from a suit regarding a tract of land formerly used as a railroad right-of-way, but not used for that purpose in decades. Shortly after removal of tracks and crossties in the mid-1970s, William R. Justiss and his wife Darlene E. Justiss, and Thomas H. Alspaugh and his wife Judy Alspaugh, fenced portions of the railroad tract. The Justisses and Alspaughs maintained the fences and used the railroad tract for a variety of purposes, including growing crops, running cattle, and for flood control. After a record search, Kinder Morgan North Texas Pipeline LP obtained a deed without warranty to the railroad tract. Kinder Morgan sought and obtained a temporary injunction against the Justisses and Alspaughs. The Justisses and Alspaughs filed a counterclaim, alleging they had adversely possessed the disputed property. While the suit was pending, Kinder Morgan constructed a pipeline through the properties, removing approximately 1,000 trees and flattening a levee in the process. The jury found that the Justisses and the Alspaughs had adversely possessed sections of the railroad tract. The jury awarded both couples compensatory and exemplary damages. On appeal, Kinder Morgan argued that the evidence of adverse possession, actual damages, and exemplary damages were legally and factually insufficient. HOLDING:Affirmed as modified, on condition of remittitur. The court held that a recital acknowledging the tract was “railroad property,” contained in a deed of trust relating to the Justisses’ adjoining property, was not an acknowledgment, as a matter of law, of title in another. Such admissions, the court held, constitute evidence contrary to an adverse possession claim, but are not conclusive and must be weighed along with all other evidence of adverse possession. The court found that the evidence was legally and factually sufficient for the damages relating to the condemnation and the damages to adjoining property. The court, however, held that the evidence concerning the jury’s award for loss of use damages was factually insufficient, and the evidence supporting exemplary damages was legally insufficient. The court modified the trial court’s judgment to reflect $2,000 for the Justisses and $1,000 for the Alspaughs in loss of use damages, conditioned on both parties filing remittiturs of $8,000 and $9,000, respectively. The court modified the judgment to delete exemplary damages. OPINION:Ross, J.; Morriss, C.J., Ross and Carter, J.J.

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