Texas Judiciary Online - HTML Opinion

^{^[1]} We correct the opinion to clarify = our=20 description of the trial court=3Ds disposition of Kirby=3Ds motion for summary judgment in = footnote=20 35.

^{^[2]} The trial court=3Ds Finding of Fact No. 3, which is = unchallenged,=20 specifically states that Tract 1 Alies in Harris County, east of the City = of=20 Houston, north of the confluence of the Houston Ship Channel and = the San=20 Jacinto River, south of Interstate 10, and in the area of = confluence of=20 the San Jacinto River (to the east and south of the property) and = Old=20 River (to the north and west of the property).@

^{^[3]} Since 1978, Kirby, or its = predecessor,=20 Western Towing Co., had leased Tract 1 from the Carter Heirs to = conduct=20 its barge mooring and fleeting business adjacent to the = property. =20 From 1978 until 1991, the Carter Heirs charged $500 a month for = the lease,=20 and in 1991 increased it to $1,000 a month.

^{^[4]} The trial court granted a = temporary=20 restraining order prohibiting THI from interfering with = Kirby=3Ds use and possession, and the parties = later agreed=20 to a temporary injunction pending trial.

^{^[5]} Kirby joined both the Port and = the General=20 Land Office of the State of Texas (AGLO@). However, the trial court later = granted=20 the GLO=3Ds plea to the jurisdiction and motion to = dismiss,=20 in which it argued in part that the State had no interest in the = property=20 at issue because the property was conveyed to the Port by=20 statute.

^{^[6]} The term Ariparian@ means Abelonging or relating to the bank of a = river or=20 stream.@ Brainard v. State, 12 = S.W.3d 6, 15=20 n.2 (Tex. 1999). A Ariparian owner@ is one whose land is bounded by a = river. =20 Id. The term Alittoral@ means Abelonging to the shore,@ and a Alittoral owner@ is one whose land borders an ocean, = sea, or lake.=20 Id. at 21 n.7.

^{^[7]} ANavigable waters@ are defined broadly in Texas and they = include=20 waters within the tidewater limits of the Gulf of Mexico and = streams that=20 are navigable in law or fact. See State v. Bradford, = 121 Tex.=20 515, 50 S.W.2d 1065, 1069 (Anavigable waters@ includes Anavigable streams, as defined by = statute, lakes,=20 bays, inlets, and other areas within tidewater limits within its=20 borders@); Lorino, 175 S.W.2d at 413 = (AThe bays inlets, and other waters along = the Gulf=20 Coast which are subject to the ebb and flow of the tide of the = Gulf of=20 Mexico are defined as Anavigable waters.@).

^{^[8]} The trial court concluded that, = as Tract 1=20 became submerged below the line of mean high tide, ownership of = that=20 submerged property passed to the Port pursuant to Texas law and = the=20 provisions of the Act of April 5, 1927. THI contends the = trial=20 court=3Ds interpretation of the 1927 Act was in = error,=20 because its ruling that Tract 1 reverted to the State conflicts = with the=20 following language of section 4 of the Act:

The purposes and provisions of the Act, = and the=20 grants, rights and privileges, thereunder to [Port], shall not = affect,=20 curtail or abridge the rights of riparian owners of lands abutting = upon=20 the islands and lands subject to overflow, and lands lying under = the=20 streams, bays and lakes herein described or referred to, as the = same=20 existed under the Common Law or the Constitution or Statutes of = Texas at=20 the time this Act shall become in force and effect, or to deprive = riparian=20 owners of access to such streams, channels or = waterways.

However, we do not read this section to = abridge=20 any of the general rules of riparian or littoral rights applied=20 here. In fact, the Act did not cause THI to lose title; = these=20 well-established rules caused THI=3Ds loss. The only relevant question = is the=20 location of the line of mean high tide. The Act merely fixed = the=20 ownership of the property in the Port once the property became = submerged=20 below the line of mean high tide.

^{^[9]} The trial court also concluded = that the=20 waters of Old River and the San Jacinto River are navigable in = law,=20 because the waters are tidally influenced and the rivers average = more than=20 30 feet in width from their mouths up, citing Lorino, 175 = S.W.2d at=20 413, Bradford, 50 S.W.2d at 1069, and Texas Natural = Resources Code=20 section 21.001(3).

^{^[10]} Mean high tide is = measured by=20 taking an average of all the daily highest readings over a long=20 period. Luttes, 324 S.W.2d at 174. Mean high = tide is=20 the same as mean high water. See id.

^{^[11]} A different rule is usually = applied in the=20 case of the sudden removal or deposit of land; this rapid or = perceptible=20 change is termed Aavulsion.@ York, 532 S.W.2d at = 952. =20 Generally, title does not pass by avulsion. Id. = Nor may=20 a landowner acquire title to accreted land by artificially = building up=20 submerged land into dry land along his shoreline. = Brainard,=20 12 S.W.3d at 19; York, 532 S.W.2d at 952.

^{^[12]} THI also cited an attorney = general opinion,=20 but it was not highly relevant to the resolution of the issues = before=20 us. See Op. Tex. Att=3Dy Gen. No. GA-0181 = (2004).

^{^[13]} Under this section of its brief, = THI also=20 argues another exception to the presumption that the State owns = submerged=20 tidal lands by suggesting that when the water is only tidally=20 influencedCnot tidalCthe typical cases involving land subject = to tide=20 waters do not apply. Relying on the opinion of one of its = experts,=20 THI argues that the environment of Tract 1 is Afluvial,@ meaning it is dominated by the = processes of river=20 water moving downstream, rather than littoral, meaning dominated = by wave=20 or tide-induced processes, and the area is not a bay, inlet, or = arm of the=20 Gulf of Mexico. Although the Port=3Ds expert acknowledged that the area is = affected by=20 fluvial processes, he described the site as a Acoastal environment,@ in which the waters of Old River and = the San=20 Jacinto River are brackish, tidally influenced estuaries of the=20 Gulf. Moreover, we find no exception made in the case law = for=20 tidally influenced water and THI. The Texas Supreme Court in = Kenedy Memorial Foundation makes it clear that only a very = little=20 movement of water suffices for tide-water cases to apply. = See=20 90 S.W.3d at 280 (applying the line of the tide where = Aseawater inundation is regular, shallow, = and=20 somewhat infrequent@); see also Crary v. Port Arthur = Channel &=20 Dock Co., 92 Tex. 275, 47 S.W. 967, 970 (1898) (holding the = phrase=20 Awaters of the gulf of Mexico@ was Acomprehensive@ and Asufficiently broad to embrace at least = all bays,=20 inlets, and streams upon the Gulf Coast to the extent to which = they are=20 subject to the ebb and flow of the tide@). Consequently, this argument = also does not=20 overcome the general presumption.

^{^[14]} THI dismisses this = footnote.=20 It asserts it is not a holding of the Texas Supreme Court, = but only=20 the author=3Ds personal = opinion. =20 Although that part of the footnote expressing the = author=3Ds personal opinion = is not a=20 holding of the court, it is some indication of the facts the court = considered important.

^{^[15]} The court of appeals had applied = a rule in=20 favor of York which assumed the boundaries of the 28.083 acres = were=20 identified, and the Water Authority did not contest this = issue. 532=20 S.W.S.W.2d at 952. Nor did the Water Authority claim any erosion = of the=20 subsided shelf. Id. The supreme court therefore = assumed=20 that the property=3Ds boundaries were identifiable and there = had been=20 no erosion of the 3.353 acres. Id. Thus, = York=20 did not address a situation involving land affected by subsidence = and=20 other processes like erosion.

^{^[16]} THI claims tide waters must have = covered=20 the York property because it was in the same general area = as Tract=20 1 but south of Tract 1, meaning that it was closer to Galveston = Bay and=20 the Gulf. Yet, as we have noted, the York court = stated quite=20 explicitly that it assumedCand expert testimony = showedCthat tide waters did not affect the=20 property. Id. at 951.

^{^[17]} This finding is significant = because it=20 relates directly to whether the property eroded or subsided. = According to at least one of the experts, if Tract 1 had merely = subsided,=20 it simply would have dropped and its boundaries would have = remained=20 relatively intact.

^{^[18]} According to THI, by stipulation = it owned=20 record title to Tract 1; so, because the Port sought to divest=20 THI=3Ds record title, the burden should have = been on the=20 Port and Kirby to prove the Port held a superior right to = THI=3Ds title. THI pursued a trespass to = try title=20 claim as a counterclaim. The Texas Supreme Court recently = held that=20 a trespass to try title suit is the proper cause for all land = title=20 disputes, including boundary disputes. Martin v. = Amerman, 133=20 S.W.3d 262, 264B67 (Tex. 2004). THI is correct = that one of=20 the ways to prevail in such a suit is Ato prove a regular chain of conveyances = from the=20 sovereign,@ see id. at 265, but a trespass = to try=20 title plaintiff must also prove the location and identity of the=20 land. See Hancock v. Moore, 137 S.W.2d 45, 50 (Tex. = Civ.=20 App.CEl Paso 1939), aff=3Dd, 146=20 S.W.2d 369 (Tex. 1940). As discussed in greater detail = below, THI=20 did not prevail on those requirements.

^{^[19]} Merten testified that there were=20 approximately seventy LSLSes in Texas, and that they are qualified = to file=20 surveys and field notes delineating boundaries between State and = private=20 land with the General Land Office. A Registered Professional = Land=20 Surveyor (ARPLS@), in contrast, is not qualified to file = such=20 surveys. According to Merten, there are about 2,500 RPLSes = in=20 Texas.

^{^[20]} THI also contends the trial court = should=20 have considered the deposition testimony of Sid Bouse, a surveyor=20 initially designated by the Port and then de-designated in favor = of Nedra=20 Foster, who testified that he would use a similar method to find = submerged=20 boundaries. If the trial court did not consider this = testimony with=20 the other evidence THI presented and determined Merten=3Ds survey to be unreliable, THI contends = this=20 constitutes an abuse of discretion. However, the trial court = does=20 not abuse its discretion merely because it determines the = correctness of=20 conflicting expert opinions in a way one party does not = like. =20 Additionally, the court limited both parties to one expert on this = issue,=20 which, in its discretion, it could do.

^{^[21]} THI also points to a survey = prepared by=20 F.G. Huffman, an RPLS, who also surveyed the northern and western=20 boundaries for THI in 2002. Merten testified that Huffman = used a=20 probing technique from a boat to lcate the purported submerged=20 boundaries. The parties dispute whether Huffman=3Ds survey was consistent with = Merten=3Ds. THI ultimately chose Merten = over Huffman=20 as their designated surveyor, and did not call Huffman at=20 trial.

^{^[22]} AThe Big Empty@ was the name of the area where Kirby = operated its=20 barge fleeting business, located to the north and east of and = adjacent to=20 Tract 1.

^{^[23]} Dr. Sherman testified in = part:

I don=3Dt know where the sediment would come = from. =20 We=3Dve seen the reports that 80-plus percent = of the=20 sediment supplied by this river is blocked out by the Lake Houston = Dam. We have to add on to that but Lake Houston Dam takes = out=20 probably a hundred percent of the sand supply. I mean, we = would of=20 had to have an incredible scavenging of the flood plain to get all = this=20 material. Even if we accepted that, there=3Ds no reason for it to make a pile here = and nowhere=20 else on this part of the basin.

^{^[24]} THI also claims that the trial = court=20 imposed an Airrebuttable presumption@ of state ownership of submerged lands = that could=20 not be overcome. We disagree that the trial court imposed an = Airrebuttable presumption@ against it. The trial court = simply held=20 against THI on crucial fact findings.

^{^[25]} In effect, THI would have us hold = that any=20 amount of subsidence precludes the application of the general law = applied=20 to land under tide waters. This we refuse to do. =

^{^[26]} York cites the three older = cases in=20 support of its statement that submergence does not necessarily = destroy the=20 title of the owner. See York, 532 S.W.2d at = 953B54.

^{^[27]} To give a better visual of the = location of=20 the boundaries, assuming the property is very loosely in the shape = of a=20 triangle, we know the location of the vertical line (the = Jones-Hare line),=20 which is on the right side of the triangle, we know only in a very = general=20 sense the location of the diagonal (meandering) line (the meanders = of the=20 Old River to the north and west, which have been eroded away), and = now we=20 are attempting to set the location of the horizontal line at the = bottom of=20 the triangle (the south line of the J.T. Harrell = survey).

^{^[28]} To the extent we have already = addressed=20 these two issues in Part 1 of this opinion, we will not revisit = them; we=20 will address only THI=3Ds issues concerning the placement of the = south=20 line of the J.T. Harrell survey.

^{^[29]} Apparently, Trott=3Ds survey reflected an erroneous belief = that the=20 Harris/Carpenter grant extended north to a common boundary with = the=20 Harrell grant. A vacancy was later found to exist between = the=20 Harrell grant and the actual north boundary of the = Harris/Carpenter. =20 Therefore, the call for adjoinder to the Harris/Carpenter survey = cannot be=20 relied upon to find the southwest corner of the J.T. Harrell = Survey.=20

^{^[30]} If one were to imagine three = rectangles=20 stacked neatly one on top of the other, the top rectangle = represents the=20 W.T Carter survey, the middle rectangle represents the Buehler = survey, and=20 the bottom rectangle represents the Garrett survey. The top=20 horizontal side of the top rectangle is the south line of the J.T. = Harrell=20 survey and the left vertical sides of the three rectangles form a = single=20 vertical (north-south) line.

^{^[31]} Niedermier sold a one-half = interest in her=20 730.6-acre tract to the Port in 1952. In 1979, the Port = condemned=20 the remaining half interest in the uplands of the 730.6-acre tract = then=20 owned by the Carter Heirs. THI does not dispute that the = Port owns=20 all of the property immediately south of the south line of the = Harrell=20 survey.

^{^[32]} Merten used Boyles=3Ds 1936 survey to find the general area = from which=20 he located the southwest corner, but otherwise he rejected=20 Boyles=3Ds work as Ahighly unreliable@ to use in locating the south=20 line.

^{^[33]} Merten actually did two surveys, = one in May=20 of 2003, and one in September of 2003. He testified that in = the=20 September 2003 survey, he placed the south line 10 feet further = north than=20 he did in the May 2003 survey. He also moved the Jones-Hare = line 23=20 feet further east, to be in agreement with the other = surveyors=3D placement of the line. According = to Foster,=20 Merten also placed the southwest corner in May 2003 some 137 feet = away=20 from where he placed it in September 2003, and his final placement = of the=20 point was 83 feet east of Boyles=3D and Foster=3Ds location of the point. THI = relies on the=20 second survey.

^{^[34]} In support of these arguments, = THI cites=20 Gill v. Peterson, 126 Tex. 216, 86 S.W.2d 629 (1935); = Wood v.=20 Stone, 359 S.W.2d 68 (Tex. Civ. App.CHouston 1962, writ ref=3Dd n.r.e.); Teal v. Powell Lumber = Co., 262=20 S.W.2d 223 (Tex. Civ. App.CBeaumont 1953, no writ); and Boyt v.=20 Weiser, 180 S.W.2d 953 (Tex. Civ. App.CAmarillo 1944, writ ref=3Dd). However, these cases merely = illustrate=20 that the general rules have to be applied based on the = court=3Ds evaluation of the facts and evidence = in each=20 case. For example, in Gill, the court noted the = general rule=20 that Athe location of lines or corners of a = survey may=20 not be established or controlled by artificial objects or marks = not called=20 for in the field notes,@ but found no error in allowing the = surveyor to=20 testify about where he placed marks not referred to in field notes = when=20 that evidence aided in locating the surveyor=3Ds line. Gill, 86 S.W.2d at = 631,=20 632. In Wood, the court found no competent evidence = that two=20 tracts were adjacent when the junior surveyor was shown to have no = knowledge of the line of the senior survey or any common = corners. =20 Wood, 359 S.W.2d at 74B75. In Teal, the court held = that a=20 survey calling for the property to adjoin that of a senior survey = was not=20 entitled to the presumption that the surveyor actually surveyed = and found=20 the line of the senior survey when there was no evidence the = surveyor had=20 any knowledge of the senior survey=3Ds line or corners, and all competent = evidence was=20 to the contrary. Teal, 262 S.W.2d at 237B40. Finally, in Boyt, the = court held=20 that a piece of flat iron, first seen as a corner marker = fifty-eight years=20 after the original surveys of the area were made, and which was = not=20 connected in any way to the surveys, was no evidence of the=20 corner=3Ds location, and, because of the = ambiguities in the=20 original surveys=3D field notes and uncertainty about the = piece of=20 flat iron, the trial court properly admitted parol evidence to = establish=20 the south line of the property at issue. Boyt, 180 = S.W.2d at=20 55B56.

^{^[35]} Kirby has not contested the trial = court=3Ds denial of its motion for summary = judgment that=20 it owns Tract 2. Therefore, we are presented only with the = question=20 of whether the trial court properly granted the Port=3Ds motion to determine THI did not own = Tract 2, or=20 if the trial court should have granted THI=3Ds motion.

^{^[36]} THI mentions the Carter = heirs=3D quitclaim deeds and adverse possession = in its=20 Statement of Facts Pertaining to Tract 2. However, it = provides no=20 argument, and no appropriate citations to the record and = authorities=20 regarding these theories of ownership. Therefore, they are = not=20 properly presented on appeal.

^{^[37]} By AJ.T. Harrell line@ we refer to the trial court=3Ds placement of that line, which we = affirmed in=20 Part II of this=20 opinion.