City of Corpus Christi v. Davis

Citation622 S.W.2d 640
Decision Date07 October 1981
Docket NumberNo. 13233,13233
PartiesCITY OF CORPUS CHRISTI, Texas, et al., Appellants, v. Jack DAVIS, et ux., Appellees.
CourtTexas Court of Appeals

Gerald L. Benadum, Wood & Burney, Corpus Christi, for City of Corpus christi.

Mark White, Atty. Gen., Sharon Gillespie, Asst. Atty. Gen., Austin, for School Land Bd. of State of Texas.

Charles W. Cromwell, Wade & Cromwell, Corpus Christi, for appellees.

SHANNON, Justice.

Jack Davis and Kathleen G. Davis, husband and wife, filed suit in the district court of Travis County against The State of Texas 1 concerning title to 3.762 acres of land reclaimed by the City of Corpus Christi from the waters of Corpus Christi Bay. The City of Corpus Christi intervened in the suit. The Davises sought damages from the City for the claimed loss of their littoral rights. After a bench trial, the district court rendered judgment, among other things, that title to the acreage is in the State and that the Davises recover $80,000.00 for the inverse condemnation by the City of their littoral rights. The Davises and the City have taken appeals from that judgment.

In 1956, the Davises purchased a 17.95-acre tract fronting on Corpus Christi Bay. Their chain of title stems from an 1849 patent that describes the southeastern boundary of the land patented as running with the meanders of Corpus Christi Bay. The patent does not purport to include any land covered by the waters of the Bay. The 3.762 acres in controversy is a part of the 17.95-acre tract and is situated on the bay side of the tract.

In 1956, a part of the Davis tract was below the mean high tide line. By June, 1977, 3.762 acres of that tract were below the mean high tide. The Davises contend that all of the 17.95 acre tract was above the mean high tide in 1905 when it was surveyed by the Nueces County Surveyor.

The district court found as a fact that since 1905 or at an earlier date, whatever part of the area in dispute which may have been above the mean high tide at some time, became submerged. The court determined further that the area in dispute was reduced in elevation by a series of severe weather episodes such as in-bound hurricanes and northers to below the line of the mean high tide of Corpus Christi Bay. There was no contention that the acreage in dispute was adversely affected by subsidence.

In 1976, the School Land Board, which had been given title to land owned by the State beneath the sea, leased 3.61 acres of the land in controversy to the City. Thereafter, the City and the Corps of Engineers in a joint project undertook to reclaim the beach, including the area in dispute, by filling in and thereby raising the elevation of the beach. This extended the shoreline some 200 feet to 250 feet bayward from the Davises mean high tide line. As a result, the Davises' land which had been formerly shoreline was separated from the Bay by the reclaimed public beach.

The district court concluded, inter alia, that the State owns all of the bottom of Corpus Christi Bay below the line of mean high tide adjacent to the Davis property. The district court concluded further that whenever the line of mean high tide moves landward, by whatever cause, the State of Texas gains title to the land newly included within the area below that line. Being of the view that the cause of the landward movement of the line of mean high tide was immaterial, the district court filed no conclusions of law determining whether the movement in this case was caused by erosion or avulsion.

TITLE TO THE 3.762 ACRES

The Davises seek reversal of the judgment vesting title in the acreage in the State claiming that the rules of avulsion are applicable to Corpus Christi Bay, that they proved the disputed acreage submerged beneath the water as the result of avulsive action, and, accordingly, that they retained title to the land. Their principal authority is Coastal Industrial Water Authority v. York, 532 S.W.2d 949 (Tex.1976).

In defense of the judgment of the district court, the City and State rely upon the rule that whenever the line of mean high tide moves landward, the upland owner loses title to the State to the land newly included within the area below the mean high tide. State v. Balli, 144 Tex. 195, 190 S.W.2d 71, 100 (1944). This is so, these parties argue, irrespective of the cause of the landward movement of the line of mean high tide.

Alternatively, the City and the State argue that should the rule of avulsion be applicable to tidal lands, the Davises failed to rebut the presumption of ownership in the State by showing that the acreage was covered by water as a result of avulsion. These parties claim, instead, that the loss of land came about by erosion.

A preliminary, and important inquiry is whether the doctrine of avulsion is applicable to land fronting the bays, inlets, and arms of the Gulf of Mexico within tidewater limits. It is settled law that title to land covered by the bays, inlets, and arms of the Gulf of Mexico within tidewater limits is in the State, and such lands constitute public property that is held in trust for the use and benefit of all the people. Lorino v. Crawford Packing Co., 142 Tex. 51, 175 S.W.2d 410 (1943). The dividing line between State ownership of the Bay and private ownership of the upland is the line of mean high tide for patents issued after 1840. Rudder v. Ponder, 156 Tex. 185, 293 S.W.2d 736 (1956). With respect to the landward advance of the line of mean high tide, the Supreme Court has written that if the sea encroaches and the upland owner loses his land, he has no redress. State v. Balli, supra. The City and State regard the sum of these authorities, Lorino, Rudder, and Balli, to be tantamount to the conclusion reached by the district court that whenever the line of mean high tide moves landward, by whatever cause, the State acquires title to the land newly included within the area below the line.

This Court has not discovered any Texas authority holding that the doctrine of avulsion is applicable to tidal lands. The Davises rely primarily upon general principles stated in Coastal Industrial Water Authority v. York, supra. That case involved a dispute between the riparian owner and the water authority as to ownership of 3.353 acres of land that had subsided below the water level of the Houston Ship Channel. The loss in surface elevation came about from the reduction in subsurface pressure by the removal of large amounts of underground water for industrial and municipal uses. There was no displacement of the submerged land in relation to the bed of the ship channel. The water was not deep enough above the disputed acreage to permit navigation.

The Court in York noticed the rules pertaining to erosion and accretion and to avulsion. Although the Court reaffirmed the rules with respect to property loss and gain due to erosion and accretion, those rules were not employed by the Court in its determination that the riparian owner held title to the submerged land since there was no erosion involved, only subsidence. In a narrow holding, the Court concluded that in case of subsidence of land below navigable waters where there is no conflict between private and public interests concerning navigation over the subsided land, title to that land remains in the riparian owner. The opinion was specifically limited to non-tidal waters. In a footnote in York, supra at 951-52, Justice Reavley emphasized the narrowness of the holding and cautioned against misinterpretation of its effect upon lands within reach of the tide.

"York's tract lies at the confluence of the San Jacinto River and the Houston Ship Channel (known also as Buffalo Bayou). There is a statement volunteered by one of the witnesses indicating that the site is reached by the Gulf tide. Indeed, it may be that subsidence may pose no boundary problem for navigable streams above sea level. The Court of Civil Appeals opinion states that the question in this case concerns title to land bounded by water 'within tide water limits.' 520 S.W.2d 499. The parties have not, at any point in this litigation, made any reference to the fact or legal effect of the tide. For this reason the Court's opinion is restricted to the issues presented by the peculiar facts of this record and the contentions of these parties. The writer of this opinion, speaking personally, chooses to emphasize the narrowness of the holding and to warn against any misinterpretation of its effect upon the boundary of private ownership to lands within reach of the tide. There may be cases where the private development and use of land will require a holding that the ownership is not changed by submergence under tidewater due to subsidence. There may be cases where public rights are not prejudiced by permitting title to remain unchanged until the private owner has a reasonable opportunity to reclaim his land from the sea. However, the rule of Luttes v State,159 Tex. 500, 324 S.W.2d 167 (1958) stands. I doubt that a court would accept a rule that located the boundary of private ownership at the Luttes lines as of the time when nonavulsive subsidence commenced. That rule would allow private owners generally to hold title to land under the sea, would restrict the enjoyment of public beaches, and would make the location of seaward boundaries an exercise of pure guesswork."

This Court, of course, recognizes Coastal Industrial Water Authority v. York, supra, but is of the view that it has no controlling effect on the disposition of this appeal. The case at bar, unlike Coastal Industrial Water Authority v. York, concerns tidal land and, further, is not a subsidence case.

The language in Balli relied upon by the City and the State is not the holding in that case, but it is at least an expression by the Supreme Court in support of the district court's implied conclusion that the rule of avulsion is not applicable to tidal lands. In addition to the...

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