Brainard v. State, 98-0578

• Decision Date: 06 January 2000
• Docket Number: No. 98-0578,98-0578
• Citation: 12 S.W.3d 6
• Parties: (Tex. 1999) E. H. Brainard, II, Carolyn Rogers, Nancy Briscoe, Boone Pickens, Bea Pickens, Morrison Cattle Company, J. A. Whittenburg, III, Frances W. Klein, Jack F. Turner, Diane E. Bowes, and J. A. Whittenburg, IV, et al., Petitioners v. The State of Texas and the General Land Office of the State of Texas, Respondents
• Court: Texas Supreme Court

Page 6

12 S.W.3d 6 (Tex. 1999)

E. H. Brainard, II, Carolyn Rogers, Nancy Briscoe Boone Pickens, Bea Pickens, Morrison Cattle Company J. A. Whittenburg, III, Frances W. Klein, Jack F. Turner Diane E. Bowes, and J. A. Whittenburg, IV, et al., Petitioners v. The State of Texas and the General Land Office of the State of Texas Respondents

No. 98-0578

SUPREME COURT OF TEXAS.

Argued Feb. 10, 1999.

Decided Oct. 7, 1999.

Rehearing Overruled Jan. 6, 2000.

On Petition for Review from the Court of Appeals for the Seventh District of Texas

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Justice HANKINSON delivered the opinion of the Court.

Today we resolve a boundary dispute between the State of Texas and thirty owners of lands bounded by the Canadian River as it flows through Roberts and Hutchinson Counties in the Panhandle. The parties disagree about whether conditions on the Canadian River that were brought about or influenced by the closing of the Sanford Dam in 1965 should be considered by surveyors in marking the present-day gradient boundary of the Canadian River. The State contends that the location of the gradient boundary between the State's riverbed and the private riparian land must be determined by the last "natural" bed of the Canadian River, as it existed before the operation of Sanford Dam. The Landowners argue that the location of the gradient boundary must be marked along the "present" bed of the Canadian River, as it exists today.

In the trial court, each side filed a motion for summary judgment on the boundary issue, relying on its own survey. The trial court ruled that the Landowners, as riparian owners, were "entitled to have their land abut and be washed by the present flow of water, as established by . . . a gradient boundary survey done under present conditions on the Canadian River, and not as of a date before Sanford Dam was closed." After further proceedings, the trial court rendered judgment declaring that the Landowners' survey marked the boundary between the State's riverbed and the riparian tracts. In addition, the court awarded the Landowners attorney's and surveyor's fees under the Frivolous or Unreasonable Claims Act and the Declaratory Judgments Act. The court of appeals reversed the trial court's final judgment, remanded the boundary question for trial by jury, and rendered judgment that the legislative resolution granting the Landowners permission to sue barred them from recovering attorney's and surveyor's fees. 968 S.W.2d 403, 410.(Tex.App.-Amarillo, 1998).

We disagree with the court of appeals that the boundary dispute in this case presents a fact question. The differences between the parties' surveys (and, in particular, their chosen river banks) are based on conflicting legal theories that we must resolve. Because the doctrines of riparian ownership, including accretion, reliction, and erosion,¹ may apply to changes in a river's course due to artificial as well as natural causes, we hold that changes brought about or influenced by an artificial structure, such as a dam, must be considered in marking the gradient boundary of a river, so long as the riparian owner does not cause or contribute to the artificial influence. We therefore conclude that a survey of the disputed area must account for present, i.e., post-dam, conditions on the Canadian River. We further conclude that the trial court did not err when it rendered judgment declaring that the Landowners' survey marks the gradient boundary of the Canadian River in the disputed area. We area. We agreewith the court of appeals, however, that the legislative resolution bars the Landowners from recovering their attorney's and surveyor's fees. For these reasons, we affirm in part and reverse in part the court of appeals' judgment, and reinstate in part the trial court's judgment declaring that the Landowners' survey correctly marks the boundary between the State's riverbed and the riparian tracts.

Background

The Canadian River begins in the Sangre de Cristo Mountains in northeastern New Mexico and traverses the Texas Panhandle, including Hutchinson and Roberts Counties, before joining the Arkansas River in eastern Oklahoma. In 1962, the United States Bureau of Reclamation began construction of Sanford Dam under the authority of the Texas Board of Water Engineers and in cooperation with the Canadian River Municipal Water Authority (CRMWA), a political subdivision of the State of Texas. Sanford Dam was built primarily to create a water supply for city members of the CRMWA and also to provide flood controls for the region. The dam is situated on the Canadian River about fourteen miles upstream from the nearest property involved in the boundary dispute.

Upon the completion of Sanford Dam in 1965, the flood gates were closed. In 1968, the CRMWA took over the operation and maintenance of Sanford Dam from the United States Bureau of Reclamation. Since 1965, no controlled release of the impounded waters has occurred.

Closing the Sanford Dam reduced the flow of the river water and encouraged the growth of more vegetation in the river channel. As the court of appeals noted, the narrowing of the general width of the flowing water in the river downstream from Sanford Dam caused confusion and uncertainty about the location of the boundary between the State's riverbed and the Landowners' riparian tracts. 968 S.W.2d at 405. Before this case, there had never been a gradient boundary survey in the disputed area.

In 1985, the General Land Office (GLO) advertised for proposals from licensed state land surveyors to conduct "a survey of the Canadian River." The GLO announced in the Texas Register that it intended to determine the "historical gradient line prior to any changes in the river caused by dams or other man-made alterations." 10 Tex. Reg. 4244 (Oct. 29, 1985). On the same page, the GLO also requested surveyors to submit proposals to conduct "a gradient boundary line survey" along the Red River, but the GLO described that surveying project differently. Along the Red River, the GLO's survey would be conducted "in accordance with any direction provided by the United States Supreme Court." Id.

In 1987, the GLO Commissioner, Garry Mauro, wrote to the Landowners, notifying them that Darrell Shine and other GLO representatives would commence surveying the boundaries of the Canadian River. The Commissioner attached to the letter a position paper explaining the State's standpoint on the boundary issue. According to the position paper:

From the time the land abutting the Canadian River was patented, the state has owned the riverbed . . . . As the river changed naturally, the boundary between state and private land moved along with any resulting changes in the gradient boundary. When the floodgates of the Sanford Dam were closed in 1965 the river began to change noticeably. But the boundary between state and private land did not change with it because the changes were caused by the dam and other human activity. The legal boundary remains as it was prior to construction of the dam.

In light of this view, the position paper also stated that the project would "survey the riverbed . . . to determine where the gradient boundary of the Canadian River was prior to construction of the dam."

The GLO's position paper provides the seminal statement of the State's "artificial change" theory, which gives rise to this boundary dispute. The artificial change theory posits that conditions on a river that are influenced by human activity, such as the closing of Sanford Dam, need not be considered by surveyors marking the gradient boundary of the river. The Landowners, who disagreed with the State's position, met with GLO officials to protest the announced survey. They requested that the State file an action so that both sides could obtain judicial review of the State's "artificial change" theory before the State undertook the survey. The Commissioner refused, and Shine commenced his survey work.

Pursuant to Senate Concurrent Resolution 165, 71st Leg., R.S., 1989 Tex. Gen. Laws 5909 (SCR 165), the Landowners sued the State and the GLO in Roberts County to establish the boundary of the Canadian River. Shortly after the Landowners brought this action, they moved for partial summary judgment asking the trial court to rule the State's artificial change theory incorrect as a matter of law. The State responded by filing a cross-motion for summary judgment, requesting the trial court to decree the gradient boundary marked by Shine as the correct boundary of the Canadian River. Alternatively, the State requested that the trial court apply the artificial change theory to avoid divesting the State of title to the bed of the Canadian River as it existed before the operation of Sanford Dam. The trial court did not rule on either side's original motions for summary judgment. Instead it granted the Landowners time to secure a gradient boundary survey, thus allowing them to plead a specific boundary line. The Landowners retained surveyor W.C. Wilson, Jr., to conduct their survey.

Again, the parties filed cross-motions for summary judgment. The Landowners asked the trial court to rule that, as a matter of law, the boundary must be marked by a gradient boundary survey done under present conditions on the Canadian River, not conditions before Sanford Dam was closed. Their survey stated that the width of the riverbed is approximately 20 to 50 feet. On the other hand, the State urged the trial court to rule that, as a matter of law, the change in the flow of the Canadian River resulting from the operation of Sanford Dam did not affect title to the riverbed and that the State's survey, based on the last natural bed of the Canadian River, marked the correct boundary of the Canadian River. The State's survey concluded that the width of the riverbed was approximately 3400 feet. After a hearing, the trial court rejected the...