Chouke v. Filipas

• Decision Date: 25 October 1928
• Docket Number: (No. 9255.)
• Citation: Chouke v. Filipas, 10 S.W.2d 807 (Tex. App. 1928)
• Parties: CHOUKE v. FILIPAS et al.
• Court: Texas Court of Appeals

10 S.W.2d 807

CHOUKE v. FILIPAS et al.

(No. 9255.)

Court of Civil Appeals of Texas. Galveston.

October 25, 1928.

Rehearing Denied November 22, 1928.

Appeal from District Court, Galveston County; C. G. Dibrell, Judge.

Action by Joe Filipas and others against Chris Chouke, who filed a cross-bill for injunction. Judgment for plaintiffs and defendant appeals. Reversed and rendered.

Maco Stewart and W. N. Zinn, both of Galveston, for appellant.

Roy Johnson, of Galveston, for appellees.

PLEASANTS, C. J.

This appeal is from a judgment of the court below refusing to perpetuate a temporary injunction theretofore granted appellant restraining appellees from operating a barge in Sydnor's bayou in such manner as to destroy the oysters planted and growing on the land of appellant which forms the bed of the bayou.

The suit was instituted by appellees to restrain appellant from maintaining a fence across the bayou which prevented its navigable use by appellees.

In his answer to appellees' suit, appellant admitted the construction of the fence, which he averred was necessary to protect his oyster beds from irreparable injury and destruction by the operation by appellees thereover of a motor-propelled scow or barge, the propeller of which dug up, damaged, and destroyed his oysters. He further averred that he had no desire to interfere with appellees or any one in the navigation of the bayou in a manner not inconsistent with his right to protect his oysters from destruction or damage. By cross-bill he pleaded his title and ownership of the land on which the oysters were planted and growing, and reaverred the damage and injury caused him by the operation of appellees' barge over his oyster beds and appellees' threat and intention to continue to so use the barge in navigating the bayou, and prayed that appellees be perpetually enjoined from so doing.

The case was heard and taken under advisement by the court on June 21, 1928, and, pending a final decision, a temporary injunction was granted appellant restraining appellees from operating the barge in Sydnor's bayou.

In the final judgment, rendered on July 9, 1928, the temporary injunction granted appellant was vacated, and he was perpetually enjoined from maintaining a fence or other obstruction in the bayou which would interfere with its navigation by appellees.

The trial court filed conclusions of fact from which we copy the following:

"1. I find that Sydnor's Bayou, the subject matter of this suit, is an arm of Offatt's Bayou, which, in turn, is a part of Galveston Bay; that Sydnor's Bayou extends from Offatt's Bayou southward into Galveston Island a distance of approximately one mile; that Sydnor's Bayou is affected throughout its entire course by the ebb and flow of the tide in Galveston Bay.

"2. That Sydnor's Bayou throughout its entire course retains an average width of over thirty feet, and has had and retained such width as far back as any witness can remember.

"3. That said Bayou is in fact and in law a navigable stream and has been such as far back as any of the witnesses can remember. Also that it was admitted by the defendants on the trial of this cause that said Bayou is a navigable stream.

"4. That the depth of water in said Bayou is largely controlled by the tide in Galveston Bay; that during extra high tide the water attains a depth of three feet or over; while at extremely low tide there is little or no water therein; that the average mean high tide therein is approximately two feet and the average mean low tide is approximately one foot; that there are two tides daily in Galveston Bay.

"5. That Sydnor's Bayou is crossed by a County wagon bridge about a half or three quarters of a mile from its mouth; that defendant Chris Chouke owns the land on both sides of said Bayou from this bridge to the mouth of said Bayou; that plaintiffs own land on said Bayou on the opposite side of said bridge.

"6. That defendant Chris Chouke also claims to own the bed of said Bayou where it runs through his said land; that this claim is based on the fact that he holds same under deed from Jones and Hall, to whom was patented on November 20, 1840, all of Galveston Island west of what is known as the Menard Grant. The original survey of said grant calling for the line to cross the mouth of Offatt's Bayou (then known as Oyster Bayou), thereby including all of Offatt's Bayou within said grant. Chouke's contention in this regard seems to have been sustained in Baylor v. Tillebach, 20 Tex. Civ. App. 490, 49 S. W. 720.

"7. Defendant Chris Chouke now has, and for many years has had, valuable oyster beds growing on the bottom of Syndor's Bayou where same runs through his land; these oyster beds extend all the way from said bridge to the mouth of said Bayou; for a distance of about three hundred feet northeast of said bridge, or toward the mouth of said stream, these beds extend the entire width of said...