Kolstad v Merrell, 13th Court of Appeals, Corpus Christi, January 7, 2016, 2016 Tex. App. LEXIS 52

Where the surface has been severed from the minerals in a tract, separate acts are required to adversely possess each - also, where a court adjudicates the issue in an order that is final, it constitutes res judicata barring a subsequent court from relitigating the issue.

In 1989, Merrell filed a trespass to try title suit over 368 acres in Live Oak County claiming title by adverse possession. Kolstad (the father of the plaintiff) answered but did not appear at trial. The trial court found for Merrell that he held title to both the surface and minerals. Years later, Kolstad, filed suit claiming that Merrell could not have held the minerals by adverse possession since the minerals were severed from the surface prior to Merrell’s possession having begun. The court stated that, if minerals were separated from the surface before possession began, there must be acts constituting adverse possession of both surface and mineral interests and that adverse possession of minerals requires some effort to exploit the mineral estate. However, where that was an issue in the earlier case that resulted in a final judgment, the court held that res judicata prevented the trial court from revisiting the issue.