On July 09, 2018 a
FINDINGS OF FACT/CONCLUSIONS OF LAW
was filed
involving a dispute between
Merwin, Betty,
Merwin, Lee,
Rushing, Janice,
Rushing, Lige, Jr,
and
Merwin, Betty,
Merwin, Lee,
Rushing, Janice,
Rushing, Lige, Jr.,
for PROPERTY
in the District Court of Dallas County.
Preview
CAUSE NO. DC-1 8-08876
LEE MERWIN and BETTY MERWIN § IN THE DISTRICT COURT
Plaintiffs, §
-
‘
v. §
§ 192ND JUDICIAL DISTRICT
JANICERUSHINGand LIGE §
RUSHING, JR. §
Defendants. § DALLAS COUNTY. TEXAS
FINDINGS OF FACTS AND
CONCLUSIONS OF LAW
COME NOW. Janice Rushing and Lige Rushing. Jr.. Defendants and file these
Law.
Proposed Findings of Fact and Conclusions of
Adverse Possession
Findings of Facts
1. Janice and Lige Rushing obtained title to the real property and improvements
Deed on February 8, 1999.
thereon at 7515 Colgate Avenue, Dallas. Texas by Warranty
2. The Rushings have remained the owners of record title to all of the property.
in the property to Janice Rushing by
In June, 2010, Lige Rushing transferred his interest
Warrant Deed.
ofthe
3. Since June, 2010, Janice Rushings has owned fee simple title to all
Land Point Surveyors, |nc., in January.
property described in the survey performed by
1999 and resurveyed in June, 201 8.
maintained
4. The Rushings have paid all of the taxes on the property and
the property since February, 1999.
Page 1 of 5
5. Janice Rushing has cultivated the disputed green property by planting
shrubbery and flowers on the disputed green area.
6. The Merwins do not have any record title to the property in dispute.
7. The Merwins have not paid any of the taxes on the property that Iis in
dispute.
8. The Merwins have not exercised actual and visible possession of the
1999.
disputed property at any time since February,
9. The Merwins have not held the property adversely or hostile to a claim of
ownership bythe Rushings.
10. The Merwins have not had possession ofthe property that was open and
notorious.
11. The Menivins have not held possession of the property exclusively; rather
and Merwins at
the property was consistently cultivated and used by both the Rushings
all times since February. 1999.
n i n L w
12. The Menivins are not entitled to prevail on a claim of adverse possession
Avenue.
ofany ofthe property within the survey lines of 7515 Colgate
Encroachment
Findings 9f Facts
line
13. The Merwins removed the old fence that was on the property
7505 Colgate Avenue.
separating the homes at 7515 and
14. The Menivins rebuilt their fence in April, 2018. The fence constructed bythe
on the Land PointSurveyors'
Merwins encroaches on the Rushings' property as shown
1999 ("Exhibit 3"). The Menivins also
Survey of 7515 Colgate Avenue on January 18,
constructed a gate on their driveway. The metal gate post is installed 6
Page20f5
side of
inches onto the Rushings' property. The fence extends a length of 55 feet on the
9 inches.
the Rushings property. The fencing encroachments range from 6 inches to
The metal posts for the fence extend one foot or more onto the Rushings property.
15. The setback of the Rushing's house to the property line is 6 feet. With the
encroachments, the Rushings have the use of the property a_
maximum of 5-1/2 feet to
minimum of 5 feet rather than the 6 foot setback to which they are entitled.
16. The encroachments with exception of the gate post have prevented the
use their property for its intended
Rushings from being able to adequately maintain and
purposes.
17. The Rushings have made demand upon the MenNins to remove the fence,
the posts and the concrete that encroaches on their property which
demands have been
refused.
18. The Rushings have obtained bids for the cost of removing fifty-five (55) feet
of fence and ten (10) metal posts, and the costs of cutting and removing eighteen
off the materials which total $1,800.
(18) feet of brick and concrete, and hauling
slab
19. The removal of the fence, the fence posts and the brick and concrete
a hardship to the Merwins.
that encroaches onto the Rushing's property will not create
anglusigns of Law
brick
20. The Court concludes thatthe fence, the gate and fence posts and the
them from using the
and concrete slab encroach onto the Rushing's property preventing
onto the Rushing's
property for its intended purposes. The Merwins have trespassed
property.
Page 30f 5
21. The trespass by the Merwins is not permanent as the fence. posts, brick
and concrete can be removed at a reasonable cost, and the Rushing's property can be
restored.
22. The Rushings are not seeking monetary damages for loss of use of the
land or the loss of market value of their property.
23. The trespass onto the Rushing's property is not "de minimus" except as to
the gate post which is "de minimus”. The doctrine of "de minimus non curat lex" does
not
apply to the trespass by the MenNins except as to the gate post.
24. The expense and difficulty involved in removing the trespassing fence. posts,
brick and concrete does not provide a valid legal basis for denying the Rushing's relief
in
the
the form of an order of this Court that the MenNins remove the encroachments onto
Rushings property. Authority: Green v. Parrack, 974 SW2d 200, (San Antonio CA) 2018.
25. The Court Orders the MenNins to remove the fence, and fence posts and
from this
the brick and concrete slab from the Rushings property within thirty (30) days
Court's Judgment.
24. The Court Orders the parties to pay their own attorney's fees and costs
incurred.
SIGNED THIS l day of E )g = .2020.
cal
JUDGE PRESIDING‘
Document Filed Date
December 07, 2020
Case Filing Date
July 09, 2018
For full print and download access, please subscribe at https://www.trellis.law/.
Preview
CAUSE NO. DC-1 8-08876 LEE MERWIN and BETTY MERWIN § IN THE DISTRICT COURT Plaintiffs, § - ‘ v. § § 192ND JUDICIAL DISTRICT JANICERUSHINGand LIGE § RUSHING, JR. § Defendants. § DALLAS COUNTY. TEXAS FINDINGS OF FACTS AND CONCLUSIONS OF LAW COME NOW. Janice Rushing and Lige Rushing. Jr.. Defendants and file these Law. Proposed Findings of Fact and Conclusions of Adverse Possession Findings of Facts 1. Janice and Lige Rushing obtained title to the real property and improvements Deed on February 8, 1999. thereon at 7515 Colgate Avenue, Dallas. Texas by Warranty 2. The Rushings have remained the owners of record title to all of the property. in the property to Janice Rushing by In June, 2010, Lige Rushing transferred his interest Warrant Deed. ofthe 3. Since June, 2010, Janice Rushings has owned fee simple title to all Land Point Surveyors, |nc., in January. property described in the survey performed by 1999 and resurveyed in June, 201 8. maintained 4. The Rushings have paid all of the taxes on the property and the property since February, 1999. Page 1 of 5 5. Janice Rushing has cultivated the disputed green property by planting shrubbery and flowers on the disputed green area. 6. The Merwins do not have any record title to the property in dispute. 7. The Merwins have not paid any of the taxes on the property that Iis in dispute. 8. The Merwins have not exercised actual and visible possession of the 1999. disputed property at any time since February, 9. The Merwins have not held the property adversely or hostile to a claim of ownership bythe Rushings. 10. The Merwins have not had possession ofthe property that was open and notorious. 11. The Menivins have not held possession of the property exclusively; rather and Merwins at the property was consistently cultivated and used by both the Rushings all times since February. 1999. n i n L w 12. The Menivins are not entitled to prevail on a claim of adverse possession Avenue. ofany ofthe property within the survey lines of 7515 Colgate Encroachment Findings 9f Facts line 13. The Merwins removed the old fence that was on the property 7505 Colgate Avenue. separating the homes at 7515 and 14. The Menivins rebuilt their fence in April, 2018. The fence constructed bythe on the Land PointSurveyors' Merwins encroaches on the Rushings' property as shown 1999 ("Exhibit 3"). The Menivins also Survey of 7515 Colgate Avenue on January 18, constructed a gate on their driveway. The metal gate post is installed 6 Page20f5 side of inches onto the Rushings' property. The fence extends a length of 55 feet on the 9 inches. the Rushings property. The fencing encroachments range from 6 inches to The metal posts for the fence extend one foot or more onto the Rushings property. 15. The setback of the Rushing's house to the property line is 6 feet. With the encroachments, the Rushings have the use of the property a_ maximum of 5-1/2 feet to minimum of 5 feet rather than the 6 foot setback to which they are entitled. 16. The encroachments with exception of the gate post have prevented the use their property for its intended Rushings from being able to adequately maintain and purposes. 17. The Rushings have made demand upon the MenNins to remove the fence, the posts and the concrete that encroaches on their property which demands have been refused. 18. The Rushings have obtained bids for the cost of removing fifty-five (55) feet of fence and ten (10) metal posts, and the costs of cutting and removing eighteen off the materials which total $1,800. (18) feet of brick and concrete, and hauling slab 19. The removal of the fence, the fence posts and the brick and concrete a hardship to the Merwins. that encroaches onto the Rushing's property will not create anglusigns of Law brick 20. The Court concludes thatthe fence, the gate and fence posts and the them from using the and concrete slab encroach onto the Rushing's property preventing onto the Rushing's property for its intended purposes. The Merwins have trespassed property. Page 30f 5 21. The trespass by the Merwins is not permanent as the fence. posts, brick and concrete can be removed at a reasonable cost, and the Rushing's property can be restored. 22. The Rushings are not seeking monetary damages for loss of use of the land or the loss of market value of their property. 23. The trespass onto the Rushing's property is not "de minimus" except as to the gate post which is "de minimus”. The doctrine of "de minimus non curat lex" does not apply to the trespass by the MenNins except as to the gate post. 24. The expense and difficulty involved in removing the trespassing fence. posts, brick and concrete does not provide a valid legal basis for denying the Rushing's relief in the the form of an order of this Court that the MenNins remove the encroachments onto Rushings property. Authority: Green v. Parrack, 974 SW2d 200, (San Antonio CA) 2018. 25. The Court Orders the MenNins to remove the fence, and fence posts and from this the brick and concrete slab from the Rushings property within thirty (30) days Court's Judgment. 24. The Court Orders the parties to pay their own attorney's fees and costs incurred. SIGNED THIS l day of E )g = .2020. cal JUDGE PRESIDING‘