Kenedy Memorial Foundation v. Dewhurst, 052799

• Decision Date: 27 May 1999
• Citation: 994 S.W.2d 285
• Parties: (Tex.App.-Austin 1999) The John G. and Stella Kenedy Memorial Foundation and Corpus Christi Diocese of the Roman Catholic Church, Appellants v. David Dewhurst, Commissioner of the General Land Office and State of Texas, Appellees NO. 03-96-00517-CV
• Court: Texas Court of Appeals

Page 285

994 S.W.2d 285 (Tex.App.-Austin 1999)

The John G. and Stella Kenedy Memorial Foundation and Corpus Christi Diocese of the Roman Catholic Church, Appellants v. David Dewhurst, Commissioner of the General Land Office and State of Texas, Appellees

NO. 03-96-00517-CV

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

May 27, 1999

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT, NO. 93-05265, HONORABLE F. SCOTT McCOWN, JUDGE PRESIDING

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Chief Justice Aboussie, Justice B. A. Smith, and former Chief Justice Carroll (Carroll not participating)

Marilyn Aboussie, Chief Justice

Affirmed

This case illustrates the difficulty of drawing lines in the sand. The hundreds of exhibits at trial and hundreds of pages of briefing on appeal attest to the dramatically increased significance of placing such lines on sands that cover hydrocarbon deposits. The dispute between appellants, the John G. and Stella Kenedy Memorial Foundation and the Corpus Christi Diocese of the Roman Catholic Church (collectively the "Foundation"), and appellees, David Dewhurst,¹ Commissioner of the General Land Office and the State of Texas (collectively the "State"), concerns title to about 35,000 acres of coastal mud flats that are intermittently inundated by the waters of the Laguna Madre. Following a jury trial, the district court rendered judgment for the State. The Foundation raises eleven points of error; the State raises eight cross-points of error. We will affirm the trial court's judgment. [Tabular or Graphical Material Omitted]

South Texas Gulf Coast Region

Figure One: Foundation trial exhibit three. The area enclosed in a rectangle is approximately the area featured in Figure Two. [Tabular or Graphical Material Omitted]

Figure Two: Foundation trial exhibit ten.

BACKGROUND

A. The land at issue

The mud flats in dispute lie along the Texas coast south of Corpus Christi. As seen in Figure One, Padre Island shields more than one hundred miles of the Texas mainland from the open waters of the Gulf of Mexico. To the west, between Padre Island and the mainland, is the shallow body of brackish water known as the Laguna Madre. Running the length of the Laguna is the intracoastal waterway, a channel dug during the 1940s that provides a navigable watercourse protected from the Gulf waters by Padre Island. The disputed mud flats are to the west of the intracoastal waterway, on the margin between the Laguna Madre and the mainland. The flats are sometimes dry and sometimes covered by water.

The grants to the Foundation's predecessor-in-title set the Laguna Madre as the eastern boundary of the grants. The original grantees received title to the land abutting the Laguna Madre by two grants-La Barreta ("Big Barreta"), from the King of Spain in 1804 (plus the Mesquite Rincon addition of 1809), and Las Motas de la Barreta ("Little Barreta"), from the Republic of Mexico in 1834. The patent issued by the State of Texas in 1907 ("the Spohn patent") to confirm the Big Barreta grant states that the tract is "bounded on the east by the waters of the 'Laguna Madre'"; the metes and bounds description states that the grant's boundary proceeds from "a post on the Laguna Madre for the northeast corner of this survey; thence with the meanders of said Laguna Madre" generally toward the south as specified. Similarly the expediente, or certificate, to the Little Barreta grant states that the tract is bounded "on the east by the Laguna Madre"; the record of proceedings in the Denouncement of Lands refers to the surveyor measuring to "the edge of the Laguna Madre."

At the time of the grants and for many years afterwards, neither the grantees nor their successors disputed the State's claim to the mud flats. The State, considering the mud flats its property as submerged lands, leased the area for oil and gas exploration. The proceeds benefitted the Permanent School Fund, created to finance the free public schools for the children of Texas.

When the Foundation challenged ownership of the mud flats, the mineral lessees filed this suit as an interpleader action, asking that the court determine to whom they should pay the royalties.

B. The applicable law

Consideration of this case both at trial and on appeal is controlled by long-standing principles for determining ownership of land. The overarching principle is that we must defer to the grantor's intent. If the grantor intends that the sea form a boundary of a grant, the supreme court has provided guidelines for determining where the land ends and the sea begins.

The intent of the original grantor, as manifested by the original survey, dominates the determination of property grant boundaries. Wheeler v. Stanolind Oil & Gas Co., 252 S.W.2d 149, 152 (Tex. 1952); Woods v. Robinson, 58 Tex. 655, 660-61 (1883). The survey made at the time of the grant controls if it can be found. Fulton v. Frandolig, 63 Tex. 330, 333 (1885). Also, if we can determine the grantor's intent, all else must yield. Phillips Petroleum Co. v. State, 63 S.W.2d 737, 745 (Tex. Civ. App.-Austin 1933, writ ref'd); see also Strong v. Sunray DX Oil Co., 448 S.W.2d 728, 733 (Tex. Civ. App.-Corpus Christi 1969, writ ref'd n.r.e.).

The supreme court directed how to determine boundaries defined by seashores in Luttes v. State, 324 S.W.2d 167 (Tex. 1958). The parties in Luttes were aligned similarly to the parties in the instant case. Luttes and the other plaintiffs owned mainland property that had as its eastern boundary the "western shore" of the Laguna Madre.² They, too, sought title to mud flats adjoining their property on the mainland, contending that the mainland shore of the Laguna had moved eastward from the time of the grants. Id. at 168. The case turned in part on the determination of how to find the shore. Because the grants came from Spain and Mexico, the supreme court reviewed Spanish and Mexican law applicable at the time of the grants to learn how to determine the boundaries. Id. at 176. That review included looking at language from Byzantine Rome's Justinian Code. Id. at 181-82. The court created a general rule for determining shorelines using tide gauges, but acknowledged that some circumstances might require using other methods. The court also discussed how to determine ownership of lands emerging from the former seabed.

Finding the shoreline is critical in cases involving coastal properties because submerged lands belong to the State. See City of Corpus Christi v. Davis, 622 S.W.2d 640, 644 (Tex. App.-Corpus Christi 1981, writ ref'd n.r.e.); see also Lorino v. Crawford Packing Co., 175 S.W.2d 410, 414 (Tex. 1943). The Luttes court defined the "shore" as "the area in which land is regularly covered and uncovered by the sea over a long period." 324 S.W.2d at 192. The landward or uppermost reach of the shore is the "shoreline" that divides submerged State lands from the upland or fast land that belongs to the sovereign's grantees or their successors. See id. at 191.

The Luttes opinion establishes a general rule that the shoreline for land-grants made by Spain or Mexico is the mean higher high tide line ("MHHT") as defined by tide gauges. Id. at 192. The MHHT is found essentially by computing the mean of all the daily tides recorded in an 18.6-year tidal cycle; if there are two high tides in a day, the lower is disregarded. Id. at 187.

The court allowed for the possibility that exceptional conditions might require determination of the shoreline by methods other than exclusive resort to tide gauges to compute MHHT:

If it be shown in a given case that the upper level of the shore, as actually covered and uncovered by the sea, is higher (or lower) than the level of mean higher high tide as determined by tide gauges, and if it also appears that an upper median line of the shore, as actually so regularly covered and uncovered, can be determined with reasonable accuracy otherwise than by exclusive resort to tide gauges, we do not by our opinion intend to foreclose such a case.

Luttes, 324 S.W.2d at 192.³

Proving the shoreline does not necessarily end the inquiry into ownership, however. Id. at 187. If the shoreline moves landward and submerges formerly fast land, the newly submerged lands belong to the State. When the shoreline moves seaward, the newly emerged land is presumed to belong to the State absent rebuttal. See id. The owners of the land adjoining the new land must prove that the new land emerged naturally and adjacent to the boundaries of their upland estates. Id. at 187. The mere fact that fast land rises by accretion and adjoins the preexisting upland does not necessarily make it the property of the upland owner. Id. at 189. Establishing that the new land accreted to the owners' upland estate, and not to State property (i.e. existing State lands or islands newly arising from the sea), can be quite difficult. Id.

On remand from the supreme court in Luttes, the court of appeals held that sufficient evidence supported the trial court's determination that the landowners failed to prove that any new land accreted to their upland estates. Luttes v. State, 328 S.W.2d 920, 923 (Tex. Civ. App.-Waco 1959, no writ). Thus, the lands the subject of the Luttes dispute remained the property of the State.

C. The parties' positions.

The parties differ on how Luttes applies to this case. The Foundation requests computation of the shoreline based on the general rule of Luttes. It argues for a shoreline based on a set elevation on the mud flats. The State contends that conditions along the shore of the Barreta grants make tide gauges incapable of accurately describing that shoreline. The State argues that, because the inundation pattern on the mud flats has not changed since the time of the grants, the shoreline remains where the original grantors placed it.

The Foundation urges that, except for a small incursion of...