Cox v. City & County of Dallas Levee Imp. Dist., 14648

• Decision Date: 27 March 1953
• Docket Number: No. 14648,14648
• Citation: 258 S.W.2d 851
• Parties: COX et al. v. CITY & COUNTY OF DALLAS LEVEE IMPROVEMENT DIST. et al.
• Court: Texas Court of Appeals

Page 851

258 S.W.2d 851

COX et al. v. CITY & COUNTY OF DALLAS LEVEE IMPROVEMENT DIST. et al.

No. 14648.

Court of Civil Appeals of Texas, Dallas.

March 27, 1953.

Rehearing Denied May 15, 1953.

Ivan Irwin and Aubrey J. Roberts, Dallas, for appellants.

Bowyer, Gray, Thomas, Crozier & Harris and Scurry, Scurry & Pace, Dallas, Price Daniel, Atty. Gen., and Jesse P. Luton, Jr., Asst. Atty. Gen., for appellees.

YOUNG, Justice.

The suit as instituted was one for mandatory and prohibitory injunction by City and County of Dallas Levee Improvement District and Dallas County Flood Control District, in which the State of Texas intervened by action in trespass to try title; the property involved being shown in red on plaintiffs' exhibit 31, consisting of a map to which reference will be made hereinafter. Parties defendant were W. T. Cox, individually and as guardian of the person and estate of Jane Ellen Cox, a minor, William Bond Cox, and Cadiz Corporation. Plaintiffs alleged that defendants were the owners of Lots 1 through 9, Block 69, Industrial Improvement Project, Units 1 and 2, an addition to the City of Dallas, and had encroached upon the old channel of the Trinity River contiguous thereto by the deposit of fill, erection of buildings and other improvements; praying that defendants be required to remove said encroachments; intervenor, the State, asserting title to the disputed area subject to the rights of the Levee District under its Plan of Reclamation theretofore undertaken. The answer of defendants was inclusive of general denial, pleas of limitation, laches, and estoppel.

The trial was to a jury; however, at conclusion of testimony and motions for instructed verdict, the case was withdrawn from the jury with rendition of judgment for appellees; adjudging the State of Texas to be owner of the disputed strip, subject to the right of use and possession by Levee authorities under aforesaid Plan of Reclamation, defendants being given until April 1, 1953 to remove all structures encroaching upon the property set off in red* on attached map. Proper appeal has been perfected by defendants from this adverse ruling.

Material to the present controversy is the following background of facts as chronologically stated in reply brief of plaintiffs: City and County of Dallas Levee Improvement District and Dallas County Flood Control District are bodies politic and corporate pursuant to Acts of the Legislature and Sec. 59(a), Art. 16, State Constitution, Vernon's Ann.St.; and were created as such for purpose of constructing and maintaining levees and other improvements necessary for reclamation of lowlands subject to periodic overflow of the Trinity River adjacent to the City. In accordance with provisions of the Constitution and Statutes ¹ a Plan of Reclamation was approved, adopted, and filed for record Nov. 6, 1926 covering some 10,500 acres of land lying within Levee District boundaries and under which Plan the course of the Trinity was changed, straightened, and placed between levees; and the old channel set aside for drainage and conduit purposes and the storage of storm waters. At the same time a survey of the old channel was ordered by the Levee District and its Commissioners of Appraisement; and an 'on the ground' survey descriptive of the old channel so set apart under the Plan was incorporated in the report of the Commissioners of Appraisement and filed for record in office of County Clerk, Nov. 28, 1926.

The survey was undertaken under direction of T. C. Forrest, engineer for the Levee District, whose testimony on this trial was that the 1926 operation accurately surveyed the high or cut banks of the old channel, Trinity River, and meander lines established being monumented by iron pipes and witness trees. ²

The following conveyances inclusive of the area in dispute, will be listed in order of their execution and filing for record: Warranty deed dated March 15, 1928, by Royal C. Miller et al. covering 326.5 acres, a part of the William S. Beaty Survey in Dallas County, to E. P. Cravens and J. T. Bowman, a provision thereof being: 'The lands herein described are located in and constitute a part of the City and County of Dallas Levee Improvement District and the Grantees expressly assume all obligations to said City and County of Dallas Levee Improvement District.' Warranty deed dated July 10, 1928, from E. P. Cravens et al. to Industrial Properties Corporation, 24 acres out of aforesaid 326.5 acres of land; Warranty deed of June 1, 1938, from Industrial Properties Corporation to W. T. Cox, covering 40,851.5 sq. feet out of said 24-acre tract. All of these deeds in description followed the line of the old Trinity River channel as surveyed in 1926 and as set forth in report of the beforementioned District Commissioners of Appraisement.

On July 22, 1938 Industrial Properties Corporation platted the 24-acre tract into lots and blocks, describing it as Industrial Improvement Project Addition, Units 1 and 2. This plat was filed in office of County Clerk July 25, 1938 and recorded in Vol. 5, pp. 415-23, Map and Plat Records of Dallas County, Texas; and in identifying the lands as platted, and old river channel, said dedicators made use of the following: The survey of 1926, the descriptions theretofore recited in report of Commissioners of Appraisement, in deed from Miller et al. to Bowman and Cravens and from the latter parties to Industrial Properties Corporation; describing the property earlier conveyed to W. T. Cox (June 1, 1938) as Lot 1, Block 69.

By warranty deed of August 4, 1938 Industrial Properties Corporation conveyed to William T. Cox, Lots 2 through 9, Block 69, of Industrial Improvement Project Addition; such grantee on April 29, 1940 by similar deed conveying to Cadiz Corporation Lots 1 through 9 in said Block 69, same Addition, the instrument carrying the recital: 'according to the map or plat thereof recorded in Vol. 5, p. 415, Map Records of Dallas County, Texas.' And by warranty deed of June 13, 1942 Cadiz Corporation conveyed to William Bond Cox and Jane Ellen Cox, a minor, a tract of land not only embracing the lots just above described, but likewise inclusive of land to the middle of the old channel, Trinity River.

Appellants admit that the Trinity River is a navigable stream, nor do they contend that the old river bed (after shift of channel one-half mile further west) did not remain the property of the State of Texas. The former channel through its entire length contained 183.47 acres according to the 1926 field notes of Engineer Forrest: and reference may be here made to Ray v. State, Tex.Civ.App., 153 S.W.2d 660, for further facts covering the whole project of diversion of at least historical interest. In this connection the District Court transcript on trial of Ray v. State, 1941, was placed in evidence over defendants' objection; appellees claiming that all questions of boundary had been finally adjudicated in such prior suit.

Appellants advance in substance three points of appeal: The court's error, (1) in grant of injunction to Levee District plaintiffs because under undisputed evidence 'plaintiff had assessed, levied and collected taxes on the very land involved, as the property of the defendants, and had failed to do equity to the defendants, and thus is not entitled to relief in its equitable action'; (2)(a) in admitting in evidence as state decisis 'the case of State v. Ray, Tex.Civ.App., 153 S.W.2d 660, because it appears therefrom that such proceedings were in trespass to try title and could only bind the parties to the suit and their privies'; (b) it similarly appearing that the Court of Civil Appeals decision in Ray v. State 'did not involve the 151 acres of land of which appellants' lands are a part, the only determination as to such 151 acres being by a District Court'; (3) in withdrawing the case from the jury and rendering judgment for appellees 'because the evidence raised an ultimate, material fact issue as to the location of the banks of the Trinity River which issue would determine the boundary line between lands of the parties.'

In 1949 the Levee District sued appellants for taxes assessed and due for years 1938 to 1947 on the land involved, describing same as: 40,852 sq. feet in W.S. Beaty Survey (also called Industrial Improvement Project Lot 1, Block 69, and Lots 2 through 9 in Block 69 of Industrial Improvement Project Addition); with like description in citation; judgment being rendered in February 1950 for $2,800.44 and foreclosure. Such judgment in decretal part described the land in same language as pleading and citation, as did the order of sale; the arrears of taxes being duly paid. In preliminary recitals said tax judgment went further in a metes and bounds description and included land 'to the center line of the old channel of the Trinity River'; and the substance of point 1 is that plaintiffs could not thus recognize and acknowledge defendants' right and title to the area claimed by them and thereafter seek recovery of part thereof without doing equity. Obviously the land to center of old river channel was never the property of plaintiffs; the tax judgment in final analysis restricting the lien to the selfsame property in description as reflected in the petition. It is well settled that in case of conflict between preliminary or preamble recitals in a judgment and the decretal portion thereof, the latter (the express adjudication) controls. Magnolia Petroleum Co. v. Caswell, Tex.Com.App., 1 S.W.2d 597, Id., Tex.Com.App., 7 S.W.2d 867; Harrison v. Manvel Oil Co., 142 Tex. 669, 180 S.W.2d 909.

We now reach the main point of controversy from standpoint of appellants. While conceding that the old river channel is State-owned property, they say that their lands extend to the high or cut bank thereof and that a fact question exists as to its true location; in short, concerning the actual west meander line. Following is a resume of testimony relied...