Bustamante v. Gutierrez Flores

In Bustamante v. Gutierrez Flores, 770 S.W.2d 934 (Tex. App.--San Antonio 1989, no writ), Matiana Bustamante entered into an oral contract for the purchase of a lot from the previous title owner, Emilia Gutierrez, for $ 275.00. Id. at 936. Bustamante paid $ 157.50 of the purchase price on January 7, 1962, and took possession of the property. Id. On August 9, 1964, Bustamante made one additional payment of $ 25.00, but made no other payments thereafter. Id. In 1985, the appellees, who were Gutierrez's heirs-at-law, fenced the lot, and Bustamante's son removed the fence. Id. The appellees then sued Bustamante seeking injunctive relief and to clear title. Id. at 936. Bustamante counter-claimed that she owned title to the property by adverse possession under the 10 year statute. Id. The Court noted that it was undisputed that Bustamante's entry onto the lot in 1962 was with the permission of Gutierrez, having purchased the lot via an oral installment contract. Id. at 937. When an adverse claimant enters upon land without asserting a claim at the outset, the claimant's possession of the land is not commenced under a claim of right inconsistent with and hostile to the claim of the owner within the meaning of the ten year adverse possession statute. Id. Therefore, in order for the adverse claimant to prevail against the record owner, the adverse claimant must prove: (1) a repudiation of the owner's title and commencement of the assertion of an open and notorious claim to the land; (2) with notice thereof clearly brought home to the owner, either actually or constructively; (3) with the further proof that there had been adverse possession of the land for the necessary limitation period subsequent to the time of notice. Id. "No matter how exclusive and hostile to the true owner possession may be in appearance, it is not adverse unless accompanied by intent on the part of the occupant to make it so." Id. at 938. "And mere use, no matter how long continued, will not satisfy the requisites of adverse possession; rather, use must be adverse for the statutory period." Id.