Lorino v. Crawford Packing Co.

• Decision Date: 10 November 1943
• Docket Number: No. 8118.,8118.
• Citation: 175 S.W.2d 410
• Parties: LORINO v. CRAWFORD PACKING CO. et al.
• Court: Texas Supreme Court

175 S.W.2d 410

LORINO v. CRAWFORD PACKING CO. et al.

No. 8118.

Supreme Court of Texas.

November 10, 1943.

Rehearing Denied December 15, 1943.

COPYRIGHT MATERIAL OMITTED

Error from Court of Civil Appeals of First Supreme Judicial District.

Trespass to try title by A. B. Lorino against Crawford Packing Company and another. Judgment for defendants was reversed by Court of Civil Appeals, 169 S. W.2d 235, and the cause remanded for a new trial, and both petitioner and defendants bring error.

Judgment of the Court of Civil Appeals affirmed.

Charles Murphy, of Houston, for plaintiffs in error.

W. C. Gray, of Palacios, Pat N. Fahey, and Taliaferro, Graves, Hutcheson & Fahey, all of Houston, for defendant in error Crawford Packing Co.

C. A. Erickson, of Bay City, for defendant in error J. A. Hafner, Jr.

SHARP, Justice.

A. B. Lorino brought this action in trespass to try title against the Crawford Packing Company, a corporation, and J. A. Hafner, Jr., for title to and possession of an oysterhouse and a pier constructed along the shore of Tres Palacios Bay in Palacios, Matagorda County, and the strip of land on which those improvements are situated. Defendants separately answered by formal pleas of not guilty. The cause was tried to the court without a jury. The court found that the land sued for "is subject to the ebb and flow of the tide and plaintiff having failed to prove that title to said land had ever passed out of the State," and entered judgment that plaintiff take nothing by his action. Upon appeal the Court of Civil Appeals reversed the judgment of the trial court and remanded the cause to the trial court, on the ground that the prior possession of petitioner raised a presumption that the Legislature had made a grant to him or his predecessor in title of a possessory right. 169 S.W.2d 235, 240. A writ of error was filed by petitioner and also by respondents, both of which were granted.

The land involved is situated in an unplatted section of the town of Palacios, and is a strip of land approximately eighty feet wide and nine hundred feet long, extending from the bayshore side of Duson Boulevard, across the beach and out into Tres Palacios Bay. In 1904, pursuant to a permit granted by the Federal Government, one Howard Stapp erected an oysterhouse on the off-shore end of the strip, which was then about six hundred feet from the shore line, where the waters of the bay were some three feet deep and where fishing boats could dock and unload their catch of fish and oysters. He also erected a wooden pier or wharf connecting the oysterhouse with the shore, over which to haul supplies to the oysterhouse and seafood from the house to the shore. The oysterhouse and pier have been repaired and rebuilt from time to time, due to the ravages of storms. The wooden pier has now been replaced by a shell driveway.

From the time Lorino first completed his oysterhouse in 1904 until this suit was brought in 1940, oysters were opened at the oysterhouse and the shells cast into the water around the house and the entire length of the pier. In time these shells built up a bank around the house and pier, so that before 1918 the top of the bank was raised above the surface of the water. The testimony reveals that the shell bank caused the current of Tres Palacios Bay to deposit sand around the bank, so that most of the strip of land described in plaintiff's petition is now "dry land." Stapp used the property from 1904 until 1918, and then conveyed it to Lorino, who used and occupied it until 1934, when he leased it to respondent Hafner. On March 1, 1937, while in possession under the terms of a written lease, Hafner sold and delivered the property to the Crawford Packing Company, and the corporation has since been holding possession thereof adversely to Lorino.

Neither petitioner nor respondents have shown any title to the land in any one, nor that the State has been divested of its title. Petitioner bases his right to recover on the ground of priority of possession and failure of respondents to show any title in themselves, under the general rule that plaintiff may recover by virtue of prior possession, without proof of title, where no title is shown in defendant. Respondents contend that when it is not shown that the State has been divested of title, the rule of priority of possession does not apply, unless it may be presumed by the court that the State has parted with title; that such presumption can not be applied to lands subject to the ebb and flow of the tidal waters of the Gulf of Mexico, because such lands are not subject to sale or disposal by the Commissioner of the General Land Office or other ministerial officer of the State; that lands not subject to sale by said officers are presumed to belong to the State; and that since the evidence establishes, and the trial court found, that the land in suit is subject to the ebb and flow of the tidewaters of Tres Palacios Bay, an arm of the Gulf of Mexico, it is not subject to sale, and the burden of proof is cast upon the plaintiff to show, by clear and positive proof, that the State has parted with title. Petitioner also contends that respondents went into possession of the property as his tenants, and may not now dispute his title and right of possession.

The bays, inlets, and other waters along the Gulf Coast which are subject to the ebb and flow of the tide of the Gulf of Mexico are defined as "navigable waters." City of Galveston v. Mann, 135 Tex. 319, 143 S.W.2d 1028, 1033; Crary v. Port Arthur Channel & Dock Co., 92 Tex. 275, 47 S.W. 967, 970. The court will take judicial knowledge that Tres Palacios Bay is an arm of the Gulf of Mexico, and that its waters are subject to the ebb and flow of the tide. State v. Bradford, 121 Tex. 515, 50 S.W.2d 1065, 1069; Crary v. Port Arthur Channel & Dock Co., supra; 17 Tex.Jur., p. 189.

In this State many decisions hold that, in an action of trespass to try title, plaintiff may recover by virtue of prior possession, without proof of title, where no title is shown in the defendant. Such proof, however, is but a rule of evidence and not of property, and may be rebutted Duren v. Strong, 53 Tex. 379; Watkins v. Smith, 91 Tex. 589, 45 S.W. 560, 561; Lund v. Doyno, 127 Tex. 19, 91 S.W.2d 315; Payton v. Loustalott, Tex.Com.App., 53 S. W.2d 1012; Wilbanks v. Mardette Oil Co., Tex.Civ.App., 119 S.W.2d 583, writ dismissed; Humble Oil & Refining Co. v. Wilcoxson, Tex.Civ.App., 70 S.W.2d 218, writ refused; 41 Tex.Jur., p. 536, § 61; 63 C. J., p. 1161, § 17. The theory upon which such plaintiff is permitted to recover as against a mere trespasser is that such possession raises a presumption of ownership. House v. Reavis, 89 Tex. 626, 35 S. W. 1063, 1065, and authorities cited supra. Ordinarily, the fact of possession gives rise to a presumption that the land has been severed from the public domain, and that the State has been divested of title, which places the burden of proof on defendant to show that the State has not parted with its title. House v. Reavis, supra; Harmon v. Landers, Tex.Civ.App., 41 S.W. 378, writ refused; Sadler v. Kirsch, Tex.Civ.App., 59 S.W.2d 193; Watson v. Ross, Tex.Civ.App., 127 S.W.2d 338; 34 Tex.Jur. p. 46, § 24. But where the evidence shows or raises an inference that the title to the land sued for is in the State, prior possession will not support a judgment for its recovery. Collyns v. Cain, 9 Tex.Civ.App. 193, 28 S.W. 544, 548, writ refused 87 Tex. 612, 30 S.W. 858; Austin v. Espuela Land & Cattle Co., 33 Tex.Civ. App. 39, 77 S.W. 830. There is no presumption that the State has parted with title to lands covered by navigable waters, because such lands are not subject to sale by the Commissioner of the General Land Office or other ministerial officer, but are presumed to belong to the State. De Meritt v. Robison, 102 Tex. 358, 116 S.W. 796; Landry v. Robison, 110 Tex. 295, 219 S.W. 819, 820.

The testimony shows that the land in suit is subject to the ebb and flow of the tidal waters of the Gulf of Mexico, and it is undisputed that when first appropriated by Stapp in 1904 it was partly covered by navigable waters. The soil covered by the bays, inlets, and arms of the Gulf of Mexico within tidewater limits belongs to the State, and constitutes public property that is held in trust for the use and benefit of all the people. Landry v. Robison, supra; City of Galveston v. Mann, supra; 34 Tex.Jur., p. 22, § 5. The rule is firmly established in this State that land under navigable waters is withdrawn from the general provisions of the statutes conferring upon the Land Commissioner the right to contract for the sale or lease thereof, and passes by grant or sale only when so expressly provided for by the sovereign authority; and there is no presumption that the State has authorized such grant or sale. City of Galveston v. Mann, supra; State v. Bradford, 121 Tex. 515, 50 S.W.2d 1065 1069; Landry v. Robison, supra; De Meritt v. Robison, supra; Hynes v. Packard, 92 Tex. 44, 45 S.W. 562; City of Galveston v. Menard, 23 Tex. 349, 397; Diversion Lake Club v. Heath, 126 Tex. 129, 86 S.W.2d 441; Rosborough v. Picton, 12 Tex.Civ.App. 113, 34 S.W. 791; Heard v. Town of Refugio, 129 Tex. 349, 103 S. W.2d 728, 732; 34 Tex.Jur. p. 86, § 50; 44 Tex.Jur. p. 125, § 98.

Although such property may not be sold by the Commissioner of the General Land Office or other executive officer, its sale or grant may be authorized by the Legislature. City of Galveston v. Menard, supra; 34 Tex.Jur., p. 46, § 25; 44 Tex. Jur. p. 125, § 98.

The reason for this distinction between ordinary public lands and those covered by navigable waters is obvious. It has always been the policy of the State to dispose of ordinary public lands to settlers, and under usual circumstances it may be presumed that the State has parted with title; but navigable waters and streams are reserved to the State for the use of the public generally, and no one should...