An issue has arisen where county property has been fenced off by a private citizen. The county owns an alley which was located in an undeveloped area. A private citizen has fenced in the alley to include it with his property. The alley has been fenced in for about 20 years and the county has not taken any action. The area is now being developed and property adjacent has been bought and the owners want an alley. What is the proper action by the county to get the owner to remove the fence?
There are several cases, the easiest for me to find this afternoon is Shackelford v Herrera, 2000 Tex App, Lexis 4209 out of the Beaumont court, which hold that an individual cannot adversely possess against the government.
In the past, I have sent a letter to the land owner explaining that the County would oppose their claim of adverse possession, and based on (cite a couple of cases) would likely prevail. That said, we would be willing to discuss moving their fence back to the property line for them. Should they choose not to discuss this with us, we will remove the fence on X date to open our property. Normally there is a response and, with the appropriate commissioner, we can work it out. When there is not, we tend to have a couple of deputies and digital cameras near by on the set date.
Lisa L. Peterson
Nolan County Attorney
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