Full Opinion

Opinion issued August 31, 2026 In The Court of Appeals For The First District of Texas ———————————— NO. 01-24-00110-CV ——————————— WEEMS & KELSEY MANAGEMENT COMPANY NO. 2, LTD, Appellant V. MARATHON PIPE LINE LLC AND BLANCHARD PIPE LINE LLC, Appellees On Appeal from the 56th District Court Galveston County, Texas Trial Court Case No. 20-CV-0301 MEMORANDUM OPINION The State of Texas filed a petition to condemn a strip of land containing a pipeline then owned and operated by Marathon Pipe Line LLC and Blanchard Pipe Line LLC. While the condemnation proceeding remained pending, Weems & Kelsey Management Company No. 2 Ltd.—which claimed it owned the strip of land in fee—sued Marathon and Blanchard for trespass in connection with the presence of the pipeline on the land. The jury found that Marathon and Blanchard were not trespassing and separately, that they had a prescriptive easement over the property. The trial court entered a take nothing judgment against Weems. On appeal, Weems argues that (1) the trial was compromised by admission of the special commissioners’ award issued in the condemnation proceeding, the submission of a jury question related to the award, and the trial court’s failure to instruct the jury that Weems owned the property in fee, (2) there is insufficient evidence supporting the jury’s finding that Marathon and Blanchard had a prescriptive easement over the property, and (3) the trial court erred in not awarding Weems damages on its trespass claim against Marathon and Blanchard. In two cross-points on appeal, Marathon and Blanchard argue that the trial court erred by (1) denying their motion for directed verdict on Weems’ trespass claim because the claim was barred by limitations, and (2) construing two deeds involving the property as conveying to the grantee a railroad easement rather than a fee simple interest in the property. We affirm the trial court’s judgment. Background In 1901, Weems & Kelsey Management Company No. 2, Ltd.’s (“Weems”) predecessors-in-interest executed two deeds granting Galveston Houston and 2 Northern Railway Co. a one-mile-long and 100-foot-wide tract of land in Galveston County, Texas “for right of way and Railway purposes.”1 Southern Pacific Transportation Company (“Southern Pacific”) later acquired the right-of-way from Galveston Houston and Northen Railway and began operating a line of the Southern Pacific Railroad. In 1972—while Southern Pacific was still operating its rail line—Weems purchased a largely undeveloped 639-acre parcel of land abutting the right-of-way (“W&K Parcel”).2 At the time, the W&K Parcel included a cow pasture, a powerline, and some pipelines. Over the next four decades, Weems negotiated easement agreements for several additional pipelines to be installed on the W&K Parcel. In time, most of the W&K Parcel was sold for residential development, leaving a corner tract and a mile-long pipeline corridor surrounded by development. 1 The right-of-way was granted in two half-mile segments by two deeds dated 1900 and 1901 (the “1901 deeds”). The parties to the appeal disagree over whether the 1901 deeds conveyed to the railroad company a railroad easement or a fee simple interest in the property. Marathon and Blanchard maintain that the deeds conveyed a fee simple interest, while Weems contends they conveyed only a railroad easement. At some point in the litigation, the parties agreed to have the trial court resolve that issue of law under Rule of Civil Procedure 166(g), and the trial court concluded that the 1901 deeds conveyed a railroad easement and that ownership of the property had reverted to Weems. It is unclear whether that interlocutory order remained unmodified at the time of trial. Weems argues that the order remained and merged with the final judgment, and Marathon challenges the order in a cross-point arguing that the trial court erred in concluding that the 1901 deeds conveyed only a railroad easement. Given our disposition, we need not resolve this dispute. For purpose of our analysis, we refer to the conveyances as a right-of-way. 2 The W&K Parcel ran along the southwest line of the right-of-way. 3 In 1977 or 1978, Gulf Oil Corporation approached Weems about obtaining an easement to install a pipeline on the W&K Parcel. Rather than installing the pipeline on the W&K Parcel, however, Gulf Oil obtained a licensing agreement for the pipeline from Southern Pacific. Gulf Oil installed the pipeline on the right-of-way that bordered the W&K Parcel and ran along State Highway 146. Although the right-of-way had been an active freight corridor when Weems purchased the W&K Parcel in 1972, about ten years later, Southern Pacific began discontinuing rail operations on the right-of-way by removing tracks and dismantling infrastructure. Sometime later, in September 1996, Union Pacific Railroad (“Union Pacific”) acquired Southern Pacific’s interest in the right-of-way. At that time, Union Pacific also filed an application with the Surface Transportation Board (“STB”)—the federal administrative agency charged with regulating rail transportation—for permission to abandon its common carrier obligations associated with the rail line on the right-of-way. The STB granted Union Pacific conditional approval of its application in 1996.3 3 The STB is the federal administrative agency with exclusive jurisdiction over the regulation of rail transportation under the Interstate Commerce Commission Termination Act. See In re Union Pac. R.R. Co., 582 S.W.3d 548, 552 (Tex. App.— Houston [14th Dist.] 2018, no pet.); see also 49 U.S.C. § 10501(b). A railroad company cannot terminate rail service without consent from the STB. To obtain consent to terminate rail service, a railroad company may apply for permission to discontinue service, seek permission to terminate through abandonment proceedings, or file a request for an exemption from abandonment proceedings. See 49 U.S.C. § 10903. If the STB grants the railroad company’s application without imposing conditions, the rail line is removed from the national transportation 4 In 2009—while Union Pacific’s application with the STB remained pending—Weems’ general partner, Mavis Kelsey, filed an affidavit in the Galveston County real property records asserting unencumbered ownership of the right-of-way, reasoning that because Union Pacific had abandoned the one-mile-long, 100-foot- wide right-of-way, the western half of the right-of-way—a 50-feet-wide tract abutting the W&K Parcel (“Property”)—had reverted to Weems under common law.4 Consistent with the 2009 affidavit, Weems began exercising purported rights over the Property, but it did not at that time contact the pipeline owner to assert its system, and the railroad’s common carrier obligations for the line and the STB’s jurisdiction terminate. Baros v. Tex. Mexican Ry. Co., 400 F.3d 228, 234–35 (5th Cir. 2005); Chi. Coating Co. v. United States, 892 F.3d 1164, 1165 (Fed. Cir. 2018). “In contrast, where an abandonment is conditional, the STB retains jurisdiction over a railroad right-of-way until it has been abandoned pursuant to the conditions imposed by the agency” and the STB “retains exclusive, plenary jurisdiction to determine whether there has been an abandonment sufficient to terminate its jurisdiction.” Baros, 400 F.3d at 234–35. 4 Sometime after execution of the 1901 deeds, the tracts on either side of the right-of- way were sold off creating a “strip.” As noted, Weems argued that Union Pacific held only a railroad easement over the right-of-way and therefore when Union Pacific abandoned the right-of-way, the Property—the western half of the right-of- way—reverted to Weems. Marathon argued that the 1901 deeds conveyed a fee simple interest to Union Pacific’s predecessor-in-interest, and thus, Weems did not acquire title to the Property. Marathon concedes, however, that if the 1901 deeds conveyed a railroad easement—as Weems argues—then Weems at some point acquired a fee simple interest in the Property. For purposes of our analysis, we assume, without deciding, that the 1901 deeds conveyed a railroad easement and that at some point prior to the filing of the underlying suit, Weems acquired a fee simple interest in the Property. 5 ownership claim or otherwise demand that the pipeline owner pay rent or remove its pipeline from the Property.5 In 2013, Weems leased the purportedly abandoned right-of-way for grazing and instructed its tenant to exclude any trespassers. That same year, Marathon and Blanchard (collectively, “Marathon”)6 acquired the Gulf Oil pipeline from BP— Gulf Oil’s successor. The pipeline was located on the western half of the right-of- way—the same Property over which Weems was now asserting unencumbered ownership. Although Weems started claiming ownership over the Property in 2009, in August 2016, Weems contacted Union Pacific to express interest in purchasing the 5 It is unclear from the record whether Weems asserted a fee simple title over the one- mile-long, 100-foot wide right-of-way, or only over the western half of the right-of- way consisting of a one-mile-long, 50-feet-wide tract abutting the W&K Parcel where the pipeline was installed. In its appellate brief, Weems asserts that it “owns the . . . half of the strip containing Marathon’s pipeline” pursuant to the strip-and- gore doctrine and the “centerline rule”—a “corollary of the strip-and-gore doctrine.” See Escondido Servs., LLC v. VKM Holdings, LP, 321 S.W.3d 102, 106 (Tex. App.—Eastland 2010, no pet.) (“The strip and gore doctrine is essentially a presumption that, when a grantor conveys land he owns adjacent to a narrow strip that thereby ceases to be of benefit or importance to him, he also conveys the narrow strip unless he plainly and specifically reserves the strip for himself in the deed by plain and specific language.”); Strait v. Savannah Ct. P’ship, 576 S.W.3d 802, 813 (Tex. App.—Fort Worth 2019, pet. denied) (explaining that the centerline presumption “provides that a conveyance of land abutting a road or public highway presumptively conveys ownership to the center of the abutting road or highway”). 6 Marathon Pipe Line LLC and Blanchard Pipe Line LLC are subsidiaries of Marathon Petroleum Corporation. Blanchard Pipe Line LLC owned the pipeline and Marathon Pipe Line LLC operated the pipeline during the relevant time period. 6 railroad’s interest in the right-of-way. Union Pacific informed Weems that the Texas Department of Transportation wanted to purchase the right-of-way for an expansion of State Highway 146. And indeed, on or about February 17, 2017, the State—on behalf of the Texas Department of Transportation—and Union Pacific entered into a purchase and sale agreement for the sale of Union Pacific’s interest in the right-of- way to the State. As part of the transaction, Union Pacific sent a certified letter to Marathon—dated August 23, 2017—terminating the pipeline license agreement (originally granted to Gulf Oil in 1978) effective 30 days from receipt of the letter. It is undisputed that Marathon did not secure a further license agreement for the pipeline after this termination date. On August 29, 2017, Union Pacific transferred its interest in the right-of-way to the State through a deed without warranty. At that time, Union Pacific notified the STB that all conditions set by the STB’s conditional approval of Union Pacific’s application to abandon its common carrier obligations had been satisfied. The STB approved Union Pacific’s application on September 22, 2017, thus terminating Union Pacific’s common carrier obligations associated with the right-of-way. According to Kelsey, Weems has owned and possessed the Property since then. Meanwhile, after learning of Weems’ ownership claim to the Property, the State—while still negotiating its purchase and sales agreement with Union Pacific— filed a petition to condemn Weems’ fee interest in the Property. The State filed its 7 petition in district court in February 2017. In November 2017—after conducting a hearing—the special commissioners awarded Weems $1,000 for the condemned property. Weems filed objections to the special commissioners’ award and the State’s condemnation suit proceeded in the district court. On January 22, 2018, the State deposited the commissioners’ award into the registry of the court as permitted under Section 21.021 of the Property Code. See TEX. PROP. CODE § 21.021. The State also filed a “Notice of Deposit,” confirming its statutory compliance with Section 21.021 and stating that “the State of Texas is now entitled to enter upon and take possession of said property.” The record reflects that on October 10, 2017—months after the State filed its condemnation proceeding and while it remained pending—Marathon emailed Kelsey a map of the right-of-way and a copy of the pipeline license agreements Marathon acquired as part of its acquisition of BP in 2013.7 Marathon’s right-of-way specialist emailed the documents to Kelsey at his request. In his email, the Marathon right-of-way specialist told Kelsey, “Looking at the map attached, it appears that you were correct in that one pipeline is within the RR right of way.” Two years later, in January 2019, Weems added Marathon as a defendant to a pending lawsuit Weems filed in 2018 against current and former operators of two pipelines installed on the Property. Weems asserted claims against Marathon for 7 In the email, Marathon refers to the pipeline license agreements as “easements.” 8 trespass, fraud, and declaratory relief. Weems alleged that the Marathon pipeline had been installed on the W&K Parcel, that Marathon was trespassing on the W&K Parcel because Marathon was operating the pipeline without an easement or permission from Weems, and that Marathon and its predecessors had fraudulently misrepresented to Weems that the pipeline was installed on the right-of-way. Marathon’s right-of-way supervisor testified that even though Marathon and Weems discussed the pipeline in 2017, Weems made “no claim of ownership to Marathon or raised any complaint to Marathon about the continued presence of the pipeline” until Weems filed suit in 2019. Weems apparently agreed. Kesley testified that it asked Marathon to remove the pipeline in 2019. On May 16, 2019, Weems notified Marathon in writing that Marathon had to remove the pipeline from the W&K Parcel within 60 days unless Marathon obtained an easement from Weems. In response, Marathon conducted a survey and hydro-excavated the pipeline, confirming that the pipeline was not located on the W&K Parcel, but rather on the Property—the right-of-way. After Marathon confirmed that the pipeline was not located on the W&K Parcel, Weems amended its petition in October 2021, asserting that Marathon’s pipeline was on the Property, that Weems owned the Property (because when Union Pacific abandoned the right-of-way the Property reverted to Weems), and that Weems had demanded that Marathon remove the pipeline from the Property and Marathon refused. 9 The parties proceeded to trial.8 Weems presented Kelsey and a real estate appraiser as its witnesses, and Marathon presented its right-of-way and public engagement manager and the surveyor it had hired to confirm the location of the pipeline. The parties also submitted excerpts from the depositions of two Union Pacific representatives. Marathon moved for a directed verdict based on limitations. The trial court denied the motion and ultimately submitted three liability-related questions to the jury, which the jury answered in favor of Marathon. The jury returned a verdict finding that Weems did not have a present right to possess the Property, that Marathon had not committed trespass, and that Marathon had acquired a prescriptive easement over the Property. The trial court rendered a final judgment in Marathon’s favor and ordered that Weems take nothing on its claims against Marathon. This appeal followed. Discussion In its first issue, Weems argues that the trial was compromised by the admission of the special commissioners’ award issued in the condemnation proceeding, the submission of a question related to the award, and the trial court’s 8 At some point, Union Pacific and the State of Texas were also parties to the litigation. Weems sued Union Pacific [20-CV-0301] asserting a claim for trespass to try title and a suit to quiet title and that suit was consolidated with Weems’ suit against Marathon and Blanchard. At some point, the State of Texas also intervened in the suit. [18-CV-0514]. During the pretrial conference, Weems announced it had settled its claims with Union Pacific. The State did not participate in the trial and, on December 15, 2023, it non-suited its petition in intervention. 10 failure to instruct the jury that Weems owned the Property.9, 10 We address each argument in turn. Admission of Commissioners’ Award A. Standard of Review and Applicable Law When a party with eminent domain authority desires to condemn land for public use but cannot agree on settlement terms with the property owner, the condemning party must file a petition for condemnation in a proper court in the county in which the land is located. See City of Tyler v. Beck, 196 S.W.3d 784, 786 (Tex. 2006). The trial court will then appoint three special commissioners to conduct a hearing and determine just compensation. Id. Once the commissioners make an award, either party may challenge the award by filing objections in the trial court. TEX. PROP. CODE § 21.018(a). Upon the filing 9 “Multifarious issues bring forth combined complaints based on more than one legal theory within a single issue.” Walker v. Walker, 642 S.W.3d 196, 212 (Tex. App.— El Paso 2021, no pet.) (internal citation omitted). While “we may consider multifarious issues when we can determine, with reasonable certainty, the alleged error about which the complaint is made,” we “may disregard points of error that are multifarious.” Id.; Rich v. Olah, 274 S.W.3d 878, 885 (Tex. App.—Dallas 2008, no pet.) (same). Although Weems’ first issue is multifarious, we address its arguments as we understand them. 10 Marathon argues that the only evidentiary objection Weems preserved is relevance. In its reply brief, Weems responds that it preserved at least five evidentiary challenges to the admission of the award, including lack of authentication, hearsay, and relevance. We need not decide this issue, because assuming, without deciding, that Weems preserved its evidentiary objections, we conclude below that the admission of the award was not an abuse of discretion, and even if it was, any error in admitting the award was harmless. 11 of objections, the award is vacated, and the administrative proceeding converts into a judicial proceeding in the district court, with the condemnor—here the State—as the plaintiff and the condemnee—here Weems—as the defendant. See Beck, 196 S.W.3d at 786; see also PR Invs. & Specialty Retailers, Inc. v. State, 251 S.W.3d 472, 476 (Tex. 2008) (stating when condemnee files objections to commissioners’ award, award is vacated and “generally not admissible in the trial court proceeding”). Whether to admit or exclude evidence is a matter committed to the trial court’s sound discretion. Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex. 2001). The erroneous admission of evidence requires reversal “only if the error probably (though not necessarily) resulted in an improper judgment.” Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004); see TEX. R. APP. P. 44.1(a) (stating error harmful if it “probably caused the rendition of an improper judgment” or “probably prevented the appellant from properly presenting the case to the court of appeal”). A “court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” TEX. R. EVID. 403; Weidner v. Sanchez, 14 S.W.3d 353, 365 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (stating unfair prejudice is “an undue 12 tendency to suggest [a] decision on an improper basis, commonly, though not necessarily, an emotional one”). B. Analysis Weems argues that the trial court abused its discretion by admitting the special commissioners’ award into evidence because once Weems objected to the award in the condemnation proceeding, the award became a nullity and was inadmissible for any purpose. Weems argues that courts consistently have held that admission of a prior special commissioners’ award or even the fact of the award is reversible error, and further that the error here was prejudicial on its face. Weems also argues that the award violates the “project-influence rule.” We conclude that the trial court did not abuse its discretion in admitting the award. And even if it had, we cannot conclude that “the error probably resulted in an improper judgment.” Although a special commissioners’ award is generally inadmissible in judicial condemnation proceedings following a party’s objections to the award, the inadmissibility of the award is grounded in the de novo character of the judicial trial that follows when objections are filed. See generally PR Invs. & Specialty Retailers, Inc., 251 S.W.3d at 476 (stating when condemnee files objections to award, award is vacated and generally not admissible because the “statutory scheme calls for. . . a trial de novo in the trial court where the commissioners’ award is not even admissible as evidence of damages”). In other 13 words, the exclusion of the award is rooted in the premise that a de novo trial is not confined to the record of the condemnation’s administrative phase. Id. (explaining that proceedings before the special commissioners “are not considered” and “the case is tried to the court de novo”). Weems has not directed us to, and we have found no cases holding that a commissioners’ award is inadmissible in matters outside condemnation proceedings. Indeed, the only authorities Weems cites are cases involving eminent domain proceedings. See State v. Hilton, 412 S.W.2d 41, 43 (Tex. 1967) (involving appeal from eminent domain proceeding); Hill v. State, 289 S.W.2d 801, 801 (Tex. Civ. App.—Texarkana 1956, no writ) (same). The same is true with respect to the project-influence rule. That rule provides that “any change in property value that results from the government manifesting a definite purpose to take property as part of a governmental project must be excluded from an award of adequate compensation.” Caffe Ribs, Inc. v. State, 487 S.W.3d 137, 142 (Tex. 2016). Here again, the authorities Weems cites all involve condemnation proceedings. See id. (involving appeal from condemnation proceedings). Weems has not cited, and we have not found, any cases involving the project-influence rule outside of condemnation proceedings. We thus reject Weems’ argument that the trial court erred in admitting the award based on the project-influence rule or the practice that precludes the admissibility of a commissioners’ award in condemnation proceedings. 14 Weems also argues that the trial court abused its discretion in admitting the special commissioners’ award because the adequacy of compensation in a condemnation proceeding is not relevant for purposes of assessing trespass damages, and because the special commissioners’ calculation of Weems’ damages in the condemnation proceeding is unreliable and constitutes hearsay. Assuming Weems preserved these objections for our review and that the trial court abused its discretion in admitting the award based on these grounds, the jury never reached the issue of damages and thus the portion of the special commissioners’ award compensating Weems $1,000 in the condemnation proceeding could not have caused the rendition of an improper judgment. See TEX. R. APP. P. 44.1(a) (stating error harmful if it “probably caused the rendition of an improper judgment” or “probably prevented the appellant from properly presenting the case to the court of appeal”). Weems last argues that the admission of the special commissioners’ award was prejudicial on its face because the award “showed that a prior jury or special commission had heard the case and found [that] Weems [] had no claim to the [P]roperty” and that “fee simple title” was vested in the State. It also argues that the award was prejudicial because it suggested that Weems “did not have a right to remain [on the Property] before the State took possession.” The special commissioners’ award, however, does not state that the commissioners “found Weems [] had no claim to the property” or that fee title was “vested” in the State. It 15 instead states that the State “filed a written [p]etition for [c]ondemnation” of the Property and is seeking “a decree of condemnation vesting in the [the State] the fee simple title in and to the hereinafter-described land,” and that the commissioners heard evidence of damages “that will be” sustained by virtue of the condemnation, concluding that Weems would be entitled to $1,000 in compensation for such a taking. The special commissioners’ award thus does not indicate that Weems has been divested of its interest in the Property, that the State had acquired title to the Property, or that Weems “did not have a right to remain [on the Property]” before the State took possession. We thus conclude that the trial court did not abuse its discretion in admitting the special commissioners’ award on this ground, and even if it had, we cannot conclude that the error probably resulted in the rendition of an improper judgment.11 TEX. R. APP. P. 44.1(a); see also Interstate Northborough 11 We note that substantially similar information was later admitted into evidence. Marathon introduced the State’s Notice of Deposit into evidence without objection. Weems argues that the Notice of Deposit did not give the jury “nearly the same picture” because the notice gives no “indication that the deposit is the total fair market value” and does “not suggest that by merely depositing the award the State has taken possession.” (Emphasis in original). The Notice of Deposit, however, provides that the State “desires to enter upon and take possession of the property sought to be condemned in this proceeding pending litigation, and in order to do so, deposits this amount” of $1,000 “awarded against the State of Texas by the Commissioners.” It further provides that “by reason of this deposit on January 22, 2018, the State of Texas is now entitled to enter upon and take possession of said property, as provided by Texas Property Code Section 21.021.” We conclude that the objected to commissioners’ award and this unobjected to Notice of Deposit—while not identical—convey substantially similar information, and thus, for this additional reason, we conclude there is no reversible error in the admission of the commissioners’ 16 P’ship, 66 S.W.3d at 220 (“Whether to admit or exclude evidence is a matter committed to the trial court’s sound discretion.”). We overrule the portion of Weems’ first issue challenging the admission of the special commissioners’ award. Jury Question and Instructions In its first issue, Weems also argues that the trial court compounded its error in admitting the commissioners’ award by submitting Question No. 1 concerning Weems’ possessory rights in the Property. And it argues that once it admitted the commissioners’ award into evidence and decided to submit Question No. 1, the trial court erred by refusing to provide a “curative instruction” instructing the jury that Weems owned the Property. A. Standard of Review A trial court must submit questions, instructions, and definitions raised by the pleadings and evidence. See TEX. R. CIV. P. 278. “A trial court may refuse to submit a jury question only if no evidence exists to warrant its submission.” Sewing v. Bowman, 371 S.W.3d 321, 339 (Tex. App.—Houston [1st Dist.] 2012, pet. dism’d) (“Conflicting evidence presents a fact question for the jury to decide.”). We review award. See Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004) (stating trial court’s erroneous admission of evidence “is deemed harmless and is waived if the objecting party subsequently permits the same or similar evidence to be introduced without objection”). 17 a trial court’s decision to submit or refuse a particular question or instruction for abuse of discretion. Certain Underwriters at Lloyd’s, London v. Prime Nat. Res., Inc., 634 S.W.3d 54, 66 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (citing Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006)). Trial courts have “great latitude and considerable discretion” in determining jury instructions. Koukhtiev v. Hiner, No. 01-13-00356-CV, 2014 WL 4952430, at *3 (Tex. App.—Houston [1st Dist.] Oct. 2, 2014, no pet.) (mem. op.) (quoting La.- Pac. Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998)). A jury charge instruction is proper if it assists the jury, is supported by the pleadings or evidence, and accurately states the law. Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002). A jury instruction is improper if it comments on the weight of the evidence or “nudge[s]” or “tilt[s]” the jury. Wal–Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 724 (Tex. 2003). “To be a direct comment on the weight of the evidence, the issue submitted must suggest to the jury the trial court’s opinion on the matter.” Indian Beach Prop. Owners’ Ass’n v. Linden, 222 S.W.3d 682, 703 (Tex. App.— Houston [1st Dist.] 2007, no pet.) (quoting H.E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22, 24 (Tex. 1998)). When a trial court refuses to submit a requested instruction on an issue raised by the pleadings and evidence, “the question on appeal is whether the request was reasonably necessary to enable the jury to render a proper verdict.” Sewing, 371 18 S.W.3d at 339. The omission of an instruction constitutes reversible error only if the omission probably caused the rendition of an improper judgment. Id. “Error in the omission of an issue is harmless ‘when the findings of the jury in answer to other issues are sufficient to support the judgment.’” Id. B. Submission of Jury Question Question No. 1 asked the jury: “Does Weems [] have a present right to possess the Property?” and the jury answered, “No.” Weems argues that the trial court compounded its error—referencing the admission of the commissioners’ award—by submitting this jury question that “inquired into the legal import of the special commissioners’ award” and constituted “an improper comment on the weight of the evidence by indicating to the jury that Weems [] may have been dispossessed by the State and lacked a possessory interest in the property” and because it constituted surplusage in that the charge asked “multiple questions regarding [Weems’] ownership.”12 It also argues that the question misstated the law of trespass by “adding terms to the definition of trespass” Addressing this last argument first, we note that Question No. 1 does not include any definitions, and Weems does not fully elaborate on the argument that 12 We have already concluded that the trial court did not abuse its discretion in admitting the commissioners’ award. Thus, to the extent that Weems’ challenge to the submission of Question No. 1 is premised on the trial court’s alleged error in admitting the special commissioners’ award, we overrule the issue. 19 the question “added” terms to the definition of trespass. Weems also fails to include a meaningful analysis on its argument that the question constituted an improper comment on the weight of the evidence. Weems states that an impermissible comment occurs when “in light of the entire charge, the judge has ‘assumed the truth of a material controverted fact or exaggerated . . . pertinent evidence.” But Weems does not fully explain how the trial court judge did either. It merely argues, without more, that submitting the question constituted an improper comment on the weight of the evidence “by indicating to the jury that Weems [] may have been dispossessed by the State and lack[ed] a possessory interest in the [P]roperty.”13 We conclude that Question No. 1 was not an improper comment on the weight of the evidence. Nothing in the jury charge refers to the special commissioners’ award, the condemnation proceeding, or the State’s interest in the Property. Question 13 Weems’ entire argument on this point is articulated in two paragraphs of its opening brief. It does not cite any legal authority for this proposition or non-conclusory analysis. See TEX. R. APP. P. 38.1(i); Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 500 (Tex. 2015) (“Failure to provide citations or argument and analysis as to an appellate issue may waive it.”) (citing ERI Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 880 (Tex. 2010)). In its reply brief, Weems cites authority on this issue, but it does not provide a meaningful analysis. Bank of Am., N.A. v. Barth, No. 13-08-00612-CV, 2013 WL 5676024, at *3 (Tex. App.—Corpus Christi–Edinburg Oct. 17, 2013, no pet.) (mem. op.) (holding that party who “cit[ed] to the record and authority for the first time in its reply brief” had nevertheless waived issues due to inadequate briefing). In any event, even if properly before us, for the reasons noted, we overrule the issue. See Bertucci v. Watkins, 709 S.W.3d 534, 541–42 (Tex. 2025) (holding that our appellate procedures “require adequate briefing” and failure to “comply with these rules can result in waiver,” but where possible courts should endeavor to reach the merits). 20 No. 1 asked the jury to determine whether Weems had a present right to possession of the Property. The question did not focus the jury’s attention on any facts associated with the issue of possession or ownership or otherwise indicate the trial court’s opinion on the evidence. See Indian Beach Prop. Owners’ Ass’n, 222 S.W.3d at 703 (holding jury questions did not improperly comment on weight of evidence when questions were “worded in a simple manner and ask[ed] the jury to decide a unique factual dispute” and did not suggest trial court’s opinions on these matters). Cf. Harris Cnty. v. Int’l Paper Co., No. 01-15-00354-CV, 2016 WL 5851895, at *20 (Tex. App.—Houston [1st Dist.] Oct. 6, 2016, no pet.) (mem. op.) (“By singling out a particular fact with the expression ‘mere fact,’ the court’s instruction constituted a comment on the weight of the evidence.”). And, as we conclude below, the question was relevant to the issues at trial. See TEX. R. CIV. P. 277 (“The court shall not in its charge comment directly on the weight of the evidence or advise the jury of the effect of their answers, but the court’s charge shall not be objectionable on the ground that it incidentally constitutes a comment on the weight of the evidence or advises the jury of the effect of their answers when it is properly a part of an instruction or definition.”). To the extent Weems argues that the trial court abused its discretion by submitting Question No. 1 because it was surplusage, or because Weems owned the Property in fee simple and asking whether Weems had a present right to possess the 21 Property suggested to the jury that an owner must have possession of the property to recover on its claim, or because it added terms to the definition of trespass, we reject Weems’ claim. Under common law, there are two types of trespass claims—trespass quare clausum fregit and trespass on the case. See Coastal Oil & Gas Corp. v. Garza Energy Tr., 268 S.W.3d 1, 9 (Tex. 2008). Trespass quare clausum fregit “was limited to physical invasions of plaintiffs’ possessory interest in land,” while trespass on the case “provided an action for injury to a non-possessory interest, such as reversion.” Id. at 9 n. 21 (citing treatise and case stating that it is “axiomatic that at common law the gist of the action of trespass quare clausum fregit is injury to the possession, and that, generally speaking, the plaintiff must show actual or constructive possession at the time of the trespass”). Although property ownership allows an owner to maintain a trespass claim, whether the owner has a right to possession determines the type of damages the owner may recover for the trespass.14 Weems did not seek damages for permanent injury to the Property. It instead sought damages for lost rentals—a temporary injury to possession. See Coinmach 14 Although non-possessory interest holders have standing to bring trespass actions, they must demonstrate concrete harm in the form of permanent harm to the property. See Coastal Oil & Gas Corp. v. Garza Energy Tr., 268 S.W.3d 1, 10 (Tex. 2008) (“Thus a landlord cannot sue for a mere trespass to land in the occupation of his tenant. He is not without legal remedy, in the form of an action on the case for the injury to the reversion; but in order to maintain it, he must show more than the trespass—namely, actual permanent harm to the property of such sort as to affect the value of his interest.”) (quoting W. Page Keeton, Dan B. Dobbs, Robert E. Keeton & David G. Owen, Prosser