Butler v. Sadler, 86

• Decision Date: 27 January 1966
• Docket Number: No. 86,86
• Citation: 399 S.W.2d 411
• Parties: Ruby Hermon BUTLER, Independent Executrix, et al., Appellants, v. Jerry SADLER, Commissioner of the General Land Office, et al., Appellees.
• Court: Texas Court of Appeals

Page 411

399 S.W.2d 411

Ruby Hermon BUTLER, Independent Executrix, et al., Appellants, v. Jerry SADLER, Commissioner of the General Land Office, et al., Appellees.

No. 86.

Court of Civil Appeals of Texas, Corpus Christi.

Jan. 27, 1966.

Rehearing Denied Feb. 24, 1966.

Graves, Dougherty, Gee & Hearon by Robert J. Hearon, Jr., Austin, for appellants.

Waggoner Carr, Atty. Gen., by J. Milton Richardson, Austin, W. G. Winters, Jr., Houston, for appellees.

NYE, Justice.

This is a vacancy suit. Appellants filed suit in the district court of Cameron County, Texas, alleging that there is in existence in that county vacant, unsurveyed public school lands as described in their pleadings. The proceeding in the district court filed by the appellants was an appeal from the order of the Texas Land Commissioner who had determined that 'no vacancy' could possibly exist on the lands in question. In appellants' suit they allege that they are entitled to establish the existence of vacant unsurveyed public school lands and their preferential right to purchase or lease such lands by virtue of Article 5421c, Vernon's Ann.Civ.St.

The appellees, being the principal defendants in the suit in the trial court, filed motions for summary judgment supported by affidavits, exhibits and depositions contending that as a matter of law no vacancy could exist in the area covered by the appellants' application. Appellants filed their motion for summary judgment, along with controverting affidavits and other exhibits. The trial court granted summary judgment in favor of the defendants and denied the motion for summary judgment filed by the plaintiffs. The plaintiffs have perfected their appeal to this Court.

The application and petition of the appellants alleged that there exists as a possibility vacant unsurveyed public school land which they describe as mud flats. They contend that this is new land, formed between the shoreline of Laguna Madre as it existed in 1829, and the shoreline as it exists today along the east side of the Buena Vista Grant. The description of the land in their petition follows:

'* * * Said lands are described as situated in Cameron County, Texas, about 15 miles northeast from Brownsville, the County Seat, and bounded as follows, to-wit:

'One the West by the Potrero de Buena Vista Grant 1-465, originally granted to Manuel de la Garza Sosa by the State of Tamaulipas, Republic of Mexico; on the South and East by the Potrero Santa de Isabel grant and Laguna Madre; on the North by Laguna Madre, and on the East by Laguna Madre, it being intended by said application to include all of the unsurveyed public school land lying between said Potrero de Buena Vista Grant and Laguna Madre."

The Potrero de Buena Vista Grant and the Potrero Santa de Isabel Grant, are a part of the mainland of Texas. The east side of the grants front on the Laguna Madre. These two grants extend generally along the west side of the Laguna Madre from the Arroyo Colorado on the north to a point near, but some distance from the Rio Grande River on the south. The Laguna Madre is a continuous body of water running from Corpus Christi Bay on the north to the Brazos-Santiago Pass on the south and connects with the Gulf of Mexico on both ends. On the east side of the Laguna Madre is a long strip of land called Padre Island which runds almost the entire length of the coast between Corpus Christi and Brownsville. This island separates the Gulf of Mexico on the east and the Laguna Madre on the west.

Quoting directly from the appellants' brief they say:

'Let us go straight to the heart of the matter. Our case depends upon acceptance of the thesis that submerged lands are in a special category, not subject to the vacancy act (Art. 5421c) and entirely separate and distinct from lands which are * * *, we assert that areas which at some earlier time might have been submerged become subject to purchase or lease under the vacancy statute if they later lose their character as submerged lands * * *'

Appellants contend in effect that there is a new category of land which had come into existence in the area bounded by their description. Whereas, formerly all of the land was either titled land or submerged land belonging to the State, there is now an intervening area of unsubmerged land subject to the provisions of the vacancy statute. Appellants argue that this land is not listed in any way in the records of the General Land Office as fast land.

The appellants likened the land which they contend exists as unsubmerged land as those lands described in the case of Luttes v. State, 159 Tex. 500, 324 S.W.2d 167, Sup.Ct. 1958. They contend that some of these mud flats in this area may be accretion to the upland and hence property of the upland owners and some as accretion to the islands which are not subject to purchase, but they contend that there is a possibility that there is land which can neither be shown as accretion to the mainland or accretion to the islands in the lagoon, that is unsubmerged and unsurveyed and therefore subject to purchase by them as discoverers.

It is important here to review briefly the legal history of the State's ownership of waters and submerged lands within the tidewater limits of the Gulf of Mexico. These submerged lands have always been treated in a special category since the earliest days of the Republic. State v. Delesdenier, 7 Tex. 76 (1851). On December 19, 1836, it was enacted by the Senate and the House of Representatives of the Republic of Texas that from and after the passage of that Act the civil and political jurisdiction of the Republic was declared to extend to the following boundaries, to-wit: 'Beginning at the mouth of the Sabine River, and running west along the Gulf of Mexico three leagues from land, to the mouth of the Rio Grande, * * *' Gammel's Laws of Texas, Vol. 1. p. 1193. In the resolution of the Congress of the United States pertaining to the Annexation of the Republic of Texas as a State into the Federal Union, of date March 1, 1845, 5 U.S. Statutes at Large 797, it was provided that the Republic retain for the State 'all the vacant and unappropriated lands lying within its limits.' The Congress of the Republic of Texas thereafter passed a joint resolution accepting the terms of annexation proposed by the United State. (2 Gammel's Laws 1200) Such action of the Congress of the Republic of Texas was ratified by popular vote of the people of Texas, and Texas was admitted to the Union by virtue of a resolution of Congress passed December 29, 1845, under which the State of Texas retained all of its public lands. 9 U.S. Statutes at Large 108.

The First Legislature of the State of Texas declared: 'That the exclusive right to the jurisdiction over the soil included in the limits of the late Republic of Texas was acquired by the valor of the people thereof, and was by them vested in the government of the said Republic, that such exclusive right is now vested in and belongs to the State, * * *' (Acts First Legislature 1846, p. 155) Under the Treaty of Guadalupe Hidalgo the boundary line between the Republic of Mexico and the United States was defined as commencing in the Gulf of Mexico three leagues from land, opposite the mouth of the Rio Grande. '(I)t is clear that the Republic of Texas and the State of Texas have from the earliest days asserted title to the ownership of that portion of the Gulf of Mexico, and the soil at the bottom thereof, out to the limit of three (3) marine leagues from shore.' Preamble to the Act of 1941, 47th Legislature, p. 454, Ch. 286.

There have been numerous pronouncements made by the Legislature of this State concerning the public lands in the arms of the Gulf, the bays and tidelands. Art. 4026, V.A.T.S. (Acts 1925, 39 Legislature, p. 438, Ch. 178, § 1, Art. 7) which was a re-enactment of a prior statute which provides that '* * * All of the public rivers, bayous, lagoons, creeks, lakes, bays and inlets in this State, and all that part of the Gulf of Mexico within the jurisdiction of this State, together with their beds and bottoms, and all the products thereof, shall continue and remain the property of the State of Texas * * *.' Art. 7467 V.A.T.S. provides in part: 'The waters of the ordinary flow and underflow and tides of every flowing river or natural stream, of all lakes, bays or arms of the Gulf of Mexico, and the storm, flood or rain waters of every river or natural stream, canyon, ravine, depression or watershed, within the State of Texas, are hereby declared to be the property of the State * * *.' Acts 1921, p. 233, sec. 2.

The State has consistently claimed title to the waters and submerged lands of the Gulf of Mexico, its arms, bays and tidewaters within the boundaries of this State. The courts of this State have zealously guarded and enforced the rights of this State to the public lands and have consistently held that the waters of the bays, inlets and arms of the Gulf of Mexico and the lands and bottoms underlining lakes, and bays, and the islands, reefs, shoals, marshes, and other areas along the Gulf of Mexico within the tidewater limits are the property of the State and are held by it in trust for the benefit of all of its inhabitants. Landry v. Robison, 110 Tex. 295, 219 S.W. 819; Diversion Lake Club v. Heath, 126 Tex. 129, 86 S.W.2d 441; City of Galveston v. Mann, 135 Tex. 319, 143 S.W.2d 1028; Lorino v. Crawford Packing Co., 142 Tex. 51, 175 S.W.2d 410; Luttes v. State, 159 Tex. 500, 324 S.W.2d 167; Rosborough v. Picton, 12 Tex.Civ.App. 113, 34 S.W. 791. See 60 Tex.Jur.2d p. 588 and 599 and 279.

In a case decided by the Supreme Court of Texas in 1932, the Court said that, 'The rule long has been established in this state that the state is the owner of the soil underlying the navigable waters, such as navigable streams, as defined by statute, lakes, bays, inlets and other areas within tidewater limits within its borders.' State v. Bradford, 121 Tex. 515, 50 S.W.2d...