Bush v. Lone Oak Club, LLC

• Decision Date: 22 February 2018
• Docket Number: NO. 01-17-00140-CV,01-17-00140-CV
• Citation: 546 S.W.3d 766
• Parties: George P. BUSH, as the Land Commissioner of the Texas General Land Office, Appellant v. LONE OAK CLUB, LLC, Appellee
• Court: Texas Court of Appeals

546 S.W.3d 766

George P. BUSH, as the Land Commissioner of the Texas General Land Office, Appellant

v.LONE OAK CLUB, LLC, Appellee

NO. 01-17-00140-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued February 22, 2018

Ken Slavin, KEMP SMITH LLP, 221 N. Kansas, Suite 1700, El Paso, TX 79901, for Appellant.

E.R. Norwood, 340 Main St., 2^nd Floor, Liberty, TX 77575, Michael C. Sanders, 12 Greenway Plaza, Suite 210, Houston, TX 77046, for Appellee.

Panel consists of Chief Justice Radack and Justices Higley and Bland.

OPINION

Sherry Radack, Chief Justice

In this appeal, we consider whether (1) a landowner can maintain a trespass-to-try-title ultra vires action against the Texas Land Commissioner, in light of the Texas Supreme Court’s opinion in Hall v. McRaven , 508 S.W.3d 232 (Tex. 2017) ; (2) the bed of a bayou that is "tidally influenced" belongs to the State or was conveyed to the landowner via "the Small Bill"¹ ; and (3) a finding that the landowner owns fee simple title to the disputed property is a proper remedy in a trespass-to-try-title ultra vires action.

BACKGROUND

The Patent

In 1872, the State of Texas granted a patent to Sophronia Barrow for a 160-acre tract of land, which is described in the "Barrow Survey" and includes a portion of Lone Oak Bayou. Lone Oak Club. L.L.C. ["the Club"] acquired title to the land described in the Barrow Survey through a regular chain of conveyances as an assignee in privity with Sophronia Barrow.

The Dispute

A dispute arose over whether the Club could prohibit duck hunters from building duck blinds in the bed of Lone Oak Bayou, so it inquired with the Texas General Land Office ["GLO"] regarding the extent of state ownership in Lone Oak Bayou "and the attendant waterways and their beds adjacent to and flowing through" the Club’s property. On March 25, 2009, the director of GLO’s surveying division, along with surveying staff, visited Lone Oak Bayou to "make a visual inspection of the bayou and the lakes, and then give an opinion on the ownership" of the land under Lone Oak Bayou.

After visiting Lone Oak Bayou, the director of the surveying divisions sent an internal memorandum stating that "Lone Oak Bayou and the connected lakes are tidal waters" and pursuant to common law, "the boundary between the state owned submerged land along the tidally influenced Lone Oak Bayou and connected lakes is the line of mean high water (MHW)." The director further stated that "the stretch of Lone Oak Bayou and the lakes directly connect to the bayou, which we inspected March 25, 2009, are state-owned submerged lands; the waters are tidally influenced, public waterways."

After the GLO’s internal memo was prepared, on April 16, 2009, Senior Deputy Land Commissioner LaNell Aston sent a letter to the Club regarding its inquiry about ownership of the bed of the bayou within its property and whether the public was entitled to use those beds. Aston attached the memo prepared by the director of the surveying division and informed the Club of GLO’s conclusion that "any part of Lone Oak Bayou ... which [is] located below the line of mean high water [is] owned by the state and are therefore open to public use." Aston’s letter noted the Club’s contention that the Small Bill applied to Lone Oak Bayou’s beds, but stated that GLO "has always held to the opinion that the Small Bill does not apply to tidally influenced waterways." On September 21st of the same year, Aston sent another letter to the Club, confirming "GLO’s position [that] ... the beds of tidally influenced watercourses are the property of the State."

The Lawsuit

On September 13, 2012, the Club filed a trespass-to-try-title suit against Jerry Patterson, George P. Bush’s predecessor as Land Commissioner of the GLO, Lanell Aston, the Senior Deputy Land Commissioner, and Jeff Davis, the Director of Asset Inspection. In its suit, the Club alleged that the defendants acted ultra vires by acting as state officials and "attempt[ing] to cloud and impair Plaintiff’s title to the Lands by claiming Plaintiff does not have title to the beds and abandoned beds of water courses and navigable streams on the lands located within the patents and awards of Plaintiff’s deeds." The petition further alleged that the defendants "are interfering with Plaintiff’s right to possession and quiet enjoyment of its property and are encouraging third persons and members of the general public to commit trespass and to hunt without consent upon the properties and beds, using the claims of the defendant as justification and excuse." The Club concluded that "the claims and wrongful assertions of the defendants unreasonably interfere with Plaintiff’s right to possession, use, control, and quiet enjoyment of the beds and properties[,]" and requested that the trial court remove the cloud on the property’s title and award title to and possession of the property to the Club. The Club did not seek monetary damages. Once Patterson left office and Davis and Aston left their positions at GLO, the Club substituted his successor-in-office, George P. Bush ["the Land Commissioner"], as the sole defendant in the case.

The Motions

On August 12, 2016, the Club filed a motion for summary judgment, arguing that it was "entitled to summary judgment, as a matter of law, that it owns title to the Barrow Survey, including the bed of the water course known as Lone Oak Bayou, by virtue of a regular chain of conveyances from the sovereignty of the soil." Specifically, the Club argued that "[t]he Small Bill grants the patentee title to the beds of all watercourses and navigable streams lying within a patent or survey so as to ensure title to the full acreage shown in the patent[,]" and that "[t]he land under the Bayou, if not already owned by the patentee and her successors, was granted in 1929 to Sophronia Barrow with the passage of the Small Bill."

On September 14, 2016, the Club filed a motion to confirm subject-matter jurisdiction. Although the Land Commissioner had not filed a plea to the jurisdiction, the Club felt compelled to address subject-matter jurisdiction, explaining that the "Club’s concern is that, notwithstanding the admission of subject matter jurisdiction by the current Land Commissioner as stated by subordinates of the current Attorney General, the issue of subject-matter jurisdiction could be raised later by an appellate court, a different Land Commissioner, or a different Attorney General."

On October 5, 2016, the Land Commissioner filed a cross motion for summary judgment, contending that the trial court lacked subject-matter jurisdiction because the action was not ripe. Specifically, the Land Commissioner argued that none of the actions taken by him or his agents were "certain or specific enough to address an anticipated injury against any of Plaintiff’s asserted rights in the Barrow Survey. The Land Commissioner further argued that, even if the trial court found that it had subject-matter jurisdiction, the State owned the bed of Lone Oak Bayou as a matter of law as "the Small Bill did not establish private ownership of Lone Oak Bayou because [it] did not explicitly include land submerged by coastal waters."

The Trial Court’s Ruling

The trial court granted the Club’s motion to confirm subject-matter jurisdiction, granted the Club’s motion for summary judgment, and denied the Land Commissioner’s motion for summary judgment.

With regard to subject-matter jurisdiction, the trial court made the following findings:

1. This action is an ultra vires trespass to try lawsuit against the Defendant, George P. Bush, the Land Commissioner of the Texas General Land Office.

2. This action concerns the portion of the bed of Lone Oak Bayou located in the Barrow Survey.

3. The plaintiff, Lone Oak Club, LLC, claims title to the portion of the bed of Lone Oak Bayou located in the Barrow Survey.

4. The Defendant, and his predecessor, action through employees of the GLO, claims title, on behalf of the State of Texas, to the portion of the bed of Lone Oak Bayou located in the Barrow Survey.

5. The Defendant’s answer does not contain a plea controverting this Court’s subject matter jurisdiction.

6. The Defendant, and his predecessor, acting through employees of the GLO, committed ultra vires acts, by claiming title, on behalf of the State of Texas, to the portion of the bed of Lone Oak Bayou located in the Barrow Survey in violation of the Small Bill, Tex. Rev. Civ. Stat. Ann. art 5414a.

7. Pursuant to State v. Lain, 162 Tex. 549, 349 S.W.2d 579 (1961), the Defendant does not have sovereign immunity from this action.

8. Due to conflicting claims of title, this controversy is ripe.

9. The Court has subject matter jurisdiction.

The trial court then granted the Club’s motion for summary judgment and denied the Land Commissioner’s motion for summary judgment. The Final Summary Judgment provided:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED THAT the Plaintiff owns fee simple title to the portion of the bed of Lone Oak Bayou located in the Barrow Survey, subject to the following:

1. The State’s title, right, or interest, in and to the sand and gravel lying within the bed of Lone Oak Bayou; and

2. The rights of the public to navigate and to use the waters of Lone Oak Bayou.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED THAT the Plaintiff shall have a writ of possession for surface rights only and specifically excluding any mineral rights.

The Appeal

The Land Commissioner appeals, contending for the first time that he is immune from the suit based on a case from the Texas Supreme Court— Hall v. McRaven —which was decided just one day after summary judgment was granted in the trial court below. The Land Commissioner also argues that, even if the trial court had subject-matter jurisdiction, it erred in granting summary judgment because the Small Bill does not apply to surface waters that are influenced by tidal waters. Finally, the Land Commissioner contends that the trial court erred in decreeing that the Club owned fee simple title...