Kenedy Memorial Foundation v. Dewhurst

• Decision Date: 29 August 2002
• Docket Number: No. 99-0667.,99-0667.
• Parties: The JOHN G. AND MARIE STELLA KENEDY MEMORIAL FOUNDATION and Corpus Christi Diocese of the Roman Catholic Church, Petitioners, v. David DEWHURST, Commissioner of the General Land Office, and The State of Texas, Respondents.
• Court: Texas Supreme Court

Page 268

90 S.W.3d 268

The JOHN G. AND MARIE STELLA KENEDY MEMORIAL FOUNDATION and Corpus Christi Diocese of the Roman Catholic Church, Petitioners, v. David DEWHURST, Commissioner of the General Land Office, and The State of Texas, Respondents.

No. 99-0667.

Supreme Court of Texas.

Argued April 11, 2001.

Decided August 29, 2002.

Rehearing Denied December 31, 2002.

Paul W. Nye, Gary E. Ramirez, Roberta S. Dohse, Chavez Gonzales & Hoblit, Corpus Christi; Shannon H. Ratliff, Akin Gump Strauss Hauer & Feld, Austin; Marc O. Knisley, Thomas J. Forestier, McGinnis Lochridge & Kilgore, Houston; Richard L. Leshin, The Kleburg Law Firm, San Antonio; and Mike A. Hatchell, Hatchell, P.C., Tyler, for Petitioner.

John J. McKetta, III, Ben F. Vaughan, III, Kathryn E. Allen, Boyce C. Cabaniss, John B. McFarland, Graves Dougherty Hearon & Moody, Austin; and John Cornyn, Attorney General of the State of Texas, Austin, for Respondent.

Justice HECHT delivered the opinion of the Court, in which Chief Justice PHILLIPS, Justice OWEN, Justice O'NEILL, Justice JEFFERSON, and Justice RODRIGUEZ joined.

After issuing an opinion in this case on December 21, 2000,¹ we granted petitioners' motion for rehearing² and entertained oral argument a second time.³ We now withdraw our earlier opinion and judgment and issue the following as the opinion of the Court.

The State and a private landowner dispute the location of the shoreline boundary of two early nineteenth century land grants, one by Spain and the other by Mexico. In Luttes v. State,⁴ we determined that the law of those two sovereigns governing such grants was that a shoreline is to be found where the mean daily higher high water level — that is, the average of daily highest water levels — reaches the mainland. Now we are asked to decide whether and how the civil law determined in Luttes applies to the present shoreline boundary dispute. The lower courts agreed with the State that the shoreline should be located without reference to mean daily high water levels because of the problems in measuring those levels in the Laguna Madre near the land at issue and instead placed roughly as far inland as water ever reaches in ordinary storms, based on the historical record.⁵ We disagree and hold instead that the civil law as determined in Luttes applies here and requires that the shoreline boundary in this case, like all others governed by civil law, be set at measured mean daily higher high water levels. We therefore reverse the judgment of the court of appeals and remand the case to the trial court for rendition of judgment in accordance with this opinion.

I.

The John G. and Marie Stella. Kenedy Memorial Foundation and the Corpus Christi Diocese of the Roman Catholic Church (collectively, "the Foundation") jointly own property which, as shown by the appended maps, comprises two tracts lying just west of Padre Island roughly halfway between Corpus Christi and Port Isabel. One tract, called La Barreta or the "Big Barreta", was originally conveyed by King Charles IV of Spain in 1804 and 1809 to Lieutenant Jose Francisco Balli (who, as an historical aside, was a nephew of Padre Nicolas Balli, the grantee of Padre Island). The other tract, called Las Motas de la Barreta or the "Little Barreta", is adjacent the Big Barreta to the north and was originally conveyed by the Mexican State of Tamaulipas in 1834 to Leonardo Salinas. The 1804 grant was lost, but a later patent from the State of Texas confirming the conveyance described the Big Barreta's eastern boundary in the same words used to describe the Little Barreta's eastern boundary in the 1834 grant — "the waters of the Laguna Madre".⁶ The State, of course, owns the submerged land and the shore between the Foundation's property and Padre Island. The Foundation and the State dispute the location of the shoreline boundary along nine miles of the eastern edge of the Foundation's property. Locating that boundary is made difficult by the nature of the seawater inundation of this part of the Laguna Madre. The parties' respective positions conflict starkly. The Foundation claims that the boundary is the west bank of the Intracoastal Waterway, where water has always been present since it was dredged in 1949. The State claims that the boundary is about six miles to the west at a bluff line marked by a slight rise in elevation and changes in terrain and vegetation, where water is present at most once or twice a year for a few days. What has brought the present controversy to a head is not any local change in conditions in the Laguna Madre, which has remained the same in this vicinity for two hundred years, but rather the increased importance of oil and gas production in the area. The disputed area totals about 35,000 acres.

The Laguna Madre, translated "Mother Lagoon", whose waters were prescribed by Spain and Mexico to mark the disputed boundary, is a narrow estuary on the west side of Padre Island extending some 130 miles from Corpus Christi to Port Isabel. The Laguna Madre is open to the Gulf of Mexico at both ends but sheltered from the Gulf along its length by Padre Island. In many areas, including adjacent the Foundation's property, it is slightly above sea level. The presence and depth of water in most of the Laguna Madre is governed not by astronomic tidal forces from which it is insulated, like those exerted by the moon and sun, but by meteorological forces to which it remains open, like the wind and barometric air pressure. In much of the Laguna Madre, including the area in dispute, variations in water levels due to daily tidal forces are minuscule, masked almost entirely by variations caused by atmospheric forces. The water does not advance and subside daily, as one thinks of a shore facing the open sea. The wind can actually blow water uphill so that it is sometimes deeper at higher elevations than at lower ones. At places, the Laguna Madre is constantly inundated with seawater several feet deep, deep enough for waves and boats. One such place, "the Hole", is near the northeast corner of the Foundation's property; another, "the Hook", is at the southeast corner of the property. At other places, however, including the area east of the Foundation's property, inundation is — and it is important to understand these precise characteristics — regular, that is, periodic in the sense of continually recurrent, as opposed to sporadic; shallow, usually no deeper than a few inches; and infrequent, occurring only several days, weeks, or months a year, depending on the area. The rest of the time the area is a dry, boggy, barren mud-flat, devoid of vegetation except for a leathery algae. The perimeter of the mudflats, which is as far as water ever gets in ordinary storms, is a "bluff" marked more or less by a small but distinct rise of a foot or more in elevation and a distinct change in vegetation and ground conditions.

The State offered, and the lower courts relied on, historical evidence regarding the treatment of the Big Barreta and Little Barreta grants. An 1809 survey of the Big Barreta by Antonio Margil Cano showed an eastern boundary approximately at the same bluff line that the State now argues should mark the eastern boundary of the Foundation's property. Grantee Balli immediately petitioned for conveyance of an elevated area east of the bluff line that was seldom inundated and was suitable for grazing. This area, now called the Mesquite Rincon, was rather like an island in the Laguna Madre and is nearly surrounded by the area now in dispute. Because it could often be reached only by a narrow isthmus from the Big Barreta through the mud flats, it was useless to anyone else and was therefore granted to Balli. (Again, for visualization, we refer the reader to the appended maps.) The 1809 survey and Balli's petition, which was granted, may indicate — we will discuss this in due course — either that Balli did not think or was at least unsure that the 1804 grant conveyed anything east of the bluff line, or that he cared most about measuring what land was suitable for grazing. As for the Little Barreta, an 1834 survey by Domingo de la Fuente omitted a triangle of land on the southeast corner of the rectangular tract which extended into the Laguna Madre and was unsuitable for grazing, and added to the northeast corner a triangle of land of approximately the same size that was not inundated, so that the grantee Salinas would have the full amount of grazing land that he had requested. Another survey of the Big Barreta in 1882 and the Little Barreta in 1879 by J.J. Cocke, and a survey of the Big Barreta around 1907 by F.M. Maddox — all done when grazing was all that mattered — never included any area east of the bluff line in the landowners' property, and the owners at those times do not appear to have objected. The exact boundary never appears to have been at issue.

The State also offered evidence that the Foundation's predecessors in interest affirmatively treated the bluff line as the boundary of their property until the mid-twentieth century, and that the Foundation did not render the mud flats for ad valorem taxation until 1987. The trial court excluded this evidence on the theory that later owners' actions were irrelevant in determining the original intent of the sovereigns expressed in the grants. The Foundation contends that the evidence shows only that its predecessors in interest cared mostly about land usable for grazing while maintaining their claim to the waters of the Laguna Madre.

In 1949, Sun Oil Co., to whom the State had leased the minerals in part of the now disputed area, sued the Foundations' predecessors in interest and Humble Oil & Refining Co., to whom they had leased the minerals in the same area, to determine whose lease was valid. Humble's position was not that the mud flats had originally been conveyed to the landowners, but that they had since accreted to the mainland. The federal district court rejected Humble's...