Humble Oil & Refining Co. v. Sun Oil Company, No. 13312.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: HOLMES, McCORD and RUSSELL, Circuit
• Citation: 190 F.2d 191
• Parties: HUMBLE OIL & REFINING CO. et al. v. SUN OIL COMPANY et al.
• Docket Number: No. 13312.
• Decision Date: 20 June 1951

190 F.2d 191 (1951)

HUMBLE OIL & REFINING CO. et al.
v.
SUN OIL COMPANY et al.

No. 13312.

United States Court of Appeals, Fifth Circuit.

June 20, 1951.

190 F.2d 192

COPYRIGHT MATERIAL OMITTED

190 F.2d 193

Robert H. Kelley, Nelson Jones, Charles E. Shaver and R. E. Seagler, all of Houston, Tex. Jacob S. Floyd, Alice, Tex. Gordon Boone, Allen V. Davis, Corpus Christi, Tex., for appellant

Carlton R. Winn, Dallas, Tex. Jesse P. Luton, Jr., Asst. Atty. Gen. of Texas, Price Daniel, Atty. Gen. of Texas, J. W. Timmins, and Martin A. Row, Dallas, Tex., for appellee.

Before HOLMES, McCORD and RUSSELL, Circuit Judges.

HOLMES, Circuit Judge.

On February 24, 1949, this action was instituted in the court below by Sun Oil Company, a New Jersey corporation, against Humble Oil & Refining Company, a Texas corporation, and two individual defendants, both citizens of Texas. Federal jurisdiction was based solely on diversity of citizenship. The suit was to establish title to and recover possession of the oil-and-gas leasehold estate in 26 tracts of land in Kenedy County, Texas; to remove clouds from said title; and to enjoin the defendants from interfering with Sun's use of said property. Sun's claim was that the land in suit was submerged by the waters of Laguna Madre, which was an arm of the sea belonging to the State of Texas; and that said land was leased by the state to Sun.

The defendants disclaimed title to three of the tracts, on the ground that these three were below mean high tide; as to the remaining tracts, the defendants claimed title under three ancient grants from sovereigns prior to and predecessors of the Republic of Texas. One of these grants, Big Barreta, was issued by the King of Spain; the others, Los Mirasoles and Little Barreta, were from the Mexican State of Tamaulipas; each of these grants called for its eastern boundary to be Laguna Madre. The defendants conceded that the land in controversy was a part of the bed of Laguna Madre when their grants were issued, but claimed that its elevation had been increased so that, when this suit was filed, it was above mean high tide, and was joined to and part of the upland. In Humble Oil and Refining Co. v. Sun Oil Co., 5 Cir., 175 F.2d 670, this court reversed an order restraining defendants from interfering with a ground survey of certain lands owned by the two individual defendants. This court held that injunctive relief did not lie, because

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Rule 34, Fed. Rules Civ. Proc. 28 U.S.C.A., provided an adequate remedy. For the opinion below on the motion of the state to intervene, see 88 F.Supp. 658

It was admitted by plaintiffs below that the land in controversy, at the time of suit, was above sea level and above mean high tide, and that the waters of Laguna Madre encroached upon this land only when blown there by the wind. If the common law were applicable, the call in each grant for Laguna Madre would make the line of mean high tide the eastern boundary of each grant; but, since the common law was adopted in Texas after the grants were issued, the boundary between the sea and the upland must be determined in accordance with the principles announced in Las Siete Partidas, the basic law of Spain and Mexico, which defines the shore of the sea as all the ground "which is covered with the water of the latter at high tide during the whole year, whether in winter or in summer." The appellants contend that land not covered by the ebb and flow of the tide is not seashore but a part of the upland even though occasionally covered by wind-driven sea water. The appellees contend that land is seashore if it is covered at any time during the year with sea water; and the appellees agree that, regardless of the present situation, at the time of the issuance of these Spanish and Mexican grants to Mirasoles, Little Barreta, and Big Barreta, the Laguna Madre was then a continuous body of water running from Corpus Christi Pass on the north to the Brazos-Santiago Pass on the south, and connected with the Gulf of Mexico at both ends. In their amended answer, the defendants below (appellants here) alleged that the land in controversy was formerly covered by the waters of Laguna Madre, but now lies above the line of not only mean high-tide but the highest tide in winter, and is accreted land, having accreted to and become a part of the aforesaid grants on which the Humble Oil Company holds valid mineral leases, which it acquired from the owners of said grants.

On the question of federal jurisdiction by reason of diversity of citizenship, we are governed by federal statutes and decisions; but, on the merits, our determination in varying circumstances may be ruled by the municipal laws of Spain, Mexico, the Republic of Texas, and the State of Texas. Even on the merits, so far as the eastern or seaward boundary of Padre Island is concerned, we are bound to limit the state's domain to low-water mark, under the decision of United States v. Texas, 339 U.S. 707, 70 S.Ct. 918, 94 L.Ed. 1221; but none of the land in controversy here is outside the inland waters. It is all claimed by appellants as accretions to the mainland, and by appellees as originally submerged land that has never been abandoned by the sea. Our interpretation of the several grants under which appellants claim, as well as the rights that passed under them, is governed by the municipal law of the particular state or sovereign that existed at the time of their issuance; but no riparian owner has a vested right in the general law of accretion, except as to the alluvion that was added to the shore while the law was in effect. In this case, we have not been apprised of any changes in the local law of accretion, though there have been may changes in sovereignty; for instance: Mexico gained its independence from Spain on September 27, 1821; the Republic of Texas was proclaimed by a convention on March 2, 1836; Texas won its independence on April 21, 1836; and it was admitted to the Union by a congressional joint resolution approved December 29, 1845, 9 Stat. 108.

Under the civil law, from the Institutes of Justinian until the present time, the seashore has been common property, and the alluvion that was added thereto belonged to the owners whose lands were bounded by the sea. This precept of the Roman law remains today as the guiding principle in both civil and common-law jurisdictions unless changed by code or statute. Thus the seashore is no part of the land but always an adjunct of the sea. The term shore, precisely defined, is not appropriate to land on the side of water that is not affected by the ebb and flow of the tide. The low-tide line is

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the seaward boundary of the shore in both civil and common-law countries. Texas owns the seashore, except where valid grants have been made before or after its admission to the Union; and, under the common-law rule, the shore today is that strip of land between mean low-tide and mean high-tide, which is ascertained at any place from the average height of the water at that place over a considerable period of time. Borax Consolidated v. City of Los Angeles, 296 U.S. 10, 26-27, 56 S.Ct. 23, 80 L.Ed. 9. By the civil law, the shore extends to the line of the highest tide in winter. Mayor etc. of City of Galveston v. Menard, 23 Tex. 349; Galveston City Surf Bathing Co. v. Heidenheimer, 63 Tex. 559; DeMerit v. Robison, 102 Tex. 358, 116 S.W. 796; Heard v. Town of Refugio, 129 Tex. 349, 103 S.W.2d 729. In Borax Consolidated v. City of Los Angeles, 296 U.S. 10, at page 22, 56 S.Ct. 23, 29, 80 L.Ed. 9, the court said: "By the civil law, the shore extends as far as the highest waves reach in winter. citing Inst. lib. 2, tit. 1, § 3; Dig. lib. 50, tit. 16, § 112"; but we are governed on this point by state rather than federal decisions. Moreover, the original of the Institutes is: Est autem littus maris, quatenus hibernus, fluctus maximus excurrit, which may be literally translated: "However, the shore of the sea in the fourth quarter or winter is where the highest wave extends." According to the Digest, the Latin is: Littus publicum est eatenus qua maxime fluctus exaestuat, which literally translated is: "The public shore extends up to where the highest wave boils up or foams." The reference is not to waves or sea water in a storm but in an estuary, or exit to the sea, as when the water boils up where the tide meets the current of a river. The word exaestuat is from exaestuo, are, avi, atum (from which the English word aestuary is derived); it illustrates the danger from different versions in translations. Compare the law of Scotland, whereby the mouth of a river, ostium fluminis, comprehends the whole space between the lowest ebb and the highest flood mark (meaning the lowest ebb and highest flood of the tide). The ordinance of Louis XIV provides: "All...