05 Aug Does the Presumed-Grant Doctrine Require a “Gap” in the Chain of Title? Texas Courts Are Still Working It Out… by Reagan N. LaFleur
Texas’s presumed-grant doctrine allows a party with long, open, and unchallenged possession of land or minerals to establish ownership without a complete paper trail. Although the doctrine may appear straightforward, courts have spent over a century litigating its application. There is currently disagreement over when the doctrine applies and whether a gap in the chain of title is required to invoke it.
Required Elements of a Presumed-Grant Doctrine
The presumed-grant doctrine, also known as title by circumstantial evidence, has three required elements: 1) a long-asserted and open claim adverse to that of the apparent owner; 2) nonclaim by the apparent owner; and 3) acquiescence by the apparent owner in the adverse claim. Magee v. Paul, 221 S.W. at 257. Given the doctrine’s historical use and purpose of quieting title when records were lost or destroyed, a gap in title appeared to be the prerequisite to application. Today, however, recurring questions concern the doctrine’s scope, including whether it requires proof of an actual missing instrument or whether long-standing, inconsistent conduct alone is sufficient. Texas courts have reached differing conclusions on this issue.
“Gap” in the Chain of Title
Several decisions have treated a gap in the chain of title as essentially indispensable. In Howland v. Hough, 570 S.W.2d 876 (Tex. 1978), the Supreme Court presumed a grant where the plaintiff’s chain of title was continuous except for a gap between an 1845 patent and an 1878 deed. By contrast, in Seddon v. Harrison, 367 S.W.2d 888 (Tex. Civ. App.—Houston 1963, writ ref’d), the court declined to presume a grant precisely because there was no missing link in the appellants’ chain of title identifying the source from whom they could have derived title.
As with many areas of case law, however, the answer depends on the facts. In Conley v. Comstock Oil & Gas, LP, 356 S.W.3d 755 (Tex. App.—Beaumont 2011, no pet.), a well operator established superior title to producing minerals under the presumed-grant doctrine even though neither side claimed under the same chain of title and there was no gap in either chain. The court of appeals affirmed summary judgment based on the long acquiescence of the opposing parties and their predecessors in the operator’s possession and production. The tension over the doctrine’s application surfaced directly in Van Dyke v. Navigator Group, 668 S.W.3d 353 (Tex. 2023). The court of appeals had held that the presumed-grant doctrine did not apply, reasoning in part that the claimants were required to show a gap or missing link in the chain of title but had failed to do so. The Supreme Court rejected that argument, holding that the parties’ decades-long course of conduct — treating each side as owning one-half of the mineral estate through leases, ratifications, division orders, and probate filings — conclusively satisfied the doctrine’s three traditional elements. This expanded the doctrine beyond its traditional role as a tool for curing missing links in the chain of title, making clear that a gap in the chain of title is not required for the doctrine to apply.
Most recently, in Clifton v. Johnson, 2026 WL 705763 (Tex. Mar. 13, 2026), the Supreme Court noted that the court of appeals had declined to consider a party’s presumed-grant argument following Van Dyke. The Court emphasized that the doctrine’s application does not turn on the interpretation of the underlying instrument. This reinforces that the presumed-grant doctrine operates independently of, rather than a backdoor to, ordinary deed construction. The Court’s analysis suggests that the central inquiry is not whether a gap in the chain of title exists, but whether the parties’ conduct sufficiently establishes the doctrine’s traditional elements.
What emerges from more than a century of decisions – from Magee, Baldwin, Howland, Conley to Van Dyke and their progeny – is not a settled checklist, but a doctrine that continues to be defined on a case-by-case basis. Texas courts agree on the doctrine’s three elements in theory, yet they continue to disagree over what those elements require in practice. For a doctrine designed to resolve uncertainty in old titles, the presumed-grant doctrine has, somewhat fittingly, remains one of the more unsettled areas of Texas real property law.
Written by Reagan N. LaFleur, Attorney at KMD Law.