Lorino v. Crawford Packing Co.

• Decision Date: 14 January 1943
• Docket Number: No. 11475.,11475.
• Parties: LORINO v. CRAWFORD PACKING CO. et al.
• Court: Texas Court of Appeals

Page 235

169 S.W.2d 235

LORINO v. CRAWFORD PACKING CO. et al.

No. 11475.

Court of Civil Appeals of Texas. Galveston.

January 14, 1943.

Rehearing Granted February 4, 1943.

Appellant's Rehearing Denied February 25, 1943.

Second Motion for Rehearing Denied March 25, 1943.

Appeal from District Court, Matagorda County; M. S. Munson, Judge.

Trespass to try title by A. B. Lorino against Crawford Packing Company and others. From a judgment for defendants, plaintiff appeals.

Reversed and remanded.

Charles Murphy, of Houston, for appellant.

W. C. Gray, of Palacios, and Styles & Erickson, of Bay City, for appellees.

Taliaferro, Graves, Hutcheson & Fahey, of Houston, for appellees on rehearing.

CODY, Justice.

Plaintiff below brought this action in trespass to try title to a parcel of land in Matagorda County, April 17, 1940. To the formal allegations of his petition plaintiff added the allegations necessary to be proved in order to establish a ten years' limitation title. Defendants below answered separately, pleading not guilty. The case was tried without a jury, and when plaintiff rested, defendants moved for a verdict upon plaintiff's evidence. The Court thereupon rendered judgment for defendants upon the finding incorporated in the judgment, in haec verba: "* * * that the land sued for by plaintiff is subject to the ebb and flow of the tide and plaintiff having failed to prove that title to said land ever passed out of the State of Texas; * * *", etc. Plaintiff as appellant seeks a reversal of the judgment upon six points, which, in the interest of brevity, we recast into the following three points:

Point 1. The only evidence introduced in this case proved that plaintiff and those under whom he claims had held the prior possession of the land sued for more than thirty years at the time defendants, who made no claim that they were other than mere trespassers, ousted plaintiff from his prior possession. This being an action in trespass to try title, mere proof by plaintiff of his prior possession raised the presumption that such possession was lawful, inclusive of the presumption that title to the land possessed had passed out of sovereignty, and into plaintiff; and in the absence of any evidence by defendants the Court erred in rendering a take-nothing judgment against plaintiff.

Point 2. It was undisputed that defendant Hafner went into possession of the land sued for in virtue of a written lease from plaintiff. The Court should have held said defendant estopped to deny plaintiff's title.

Point 3. It was undisputed that defendant Crawford Packing Company took possession of the land sued for from plaintiff's tenant Hafner, and the court should have held the former equally estopped with the latter to deny plaintiff's title.

The following is deemed a sufficiently full statement of the facts to determine whether the judgment rendered against plaintiff is erroneous:

In 1904 the War Department issued a permit to one Howard Stapp, under which Stapp appropriated a location in Tres Palacios Bay, and built a wooden oyster house at a point in the Bay which was covered by some three feet of water. Tres Palacios Bay is, of course, a part of the Gulf of Mexico; and its water ebbs and flows with the tide. Said location was distant from Duson Avenue, the street nearest the Bay in the City of Palacios, something like six hundred feet and opposite to where the south end of Eighth Street foots upon and connects with Duson Avenue. The land lying between Duson Avenue and the Bay is unplatted; indeed, in case of an unusually high tide, it has happened that Duson Avenue has been covered by water from the Bay. At the time Stapp built his oyster house, he built a wooden wharf thereto from Duson Avenue, opposite the foot of Eighth Street. His oyster openers cast the oyster shells into the water from the oyster house, and the shells were disposed of so as to build up from the bottom what is designated as land. The house had to be repaired and rebuilt due to the ravages of storms from time to time, and the evidence shows that it is now upon "land". The shells were also cast under the wharf, and before the year 1918 the wharf had become replaced with "land" consisting of shell, which is variously referred to as the "walkway" and the "driveway". In that year plaintiff purchased Howard Stapp's rights. The storm of 1919 very largely destroyed the oysterhouse and the packing plant machinery therein. Plaintiff caused the house to be rebuilt, but acquired a place near the railroad at which he installed his packing plant. He has caused the "walkway" to be raised higher above the water, and until the year 1934 he continued to have it repaired and rebuilt where it was damaged by the water. This "walkway" was used by plaintiff to get to and from his oysterhouse, and over it the wagons in which his seafood was hauled were driven. Plaintiff conducted his business in the name of the Liberty Fish and Oyster Company. On August 1, 1934, he made a written lease to defendant Hafner; and on August 1, 1936, he and Hafner executed a new written lease. The property covered by the first lease is described therein as "lying and being situated in the County of Matagorda * * * being all the property owned by Lessor, situated upon the shores of Tres Palacios Bay, and known as the property formerly used by the Liberty Fish and Oyster business". In the second lease, which provided for an increased consideration, the property covered therein was described as "being the properties owned by lessor situated upon the shores of Matagorda of Tres Palacios Bay, and where the main highway crosses, both places formerly occupied by the Liberty Fish and Oyster Company". Both of the leases contained covenants for peaceful surrender upon the expiration of the leases respectively, and against subletting except upon written consent of lessor. Hafner went into possession of the oysterhouse and "walkway" under these leases.

Thereafter, on March 1, 1937, defendant Hafner sold by a written instrument all the assets of the business operated by him in Palacios to defendant Crawford Packing Company, with certain exceptions not here material; and under this instrument the Crawford Packing Company took possession of the property sued for by plaintiff. The property sued for is described in plaintiff's petition as being a part of fractional section 3, of the City of Palacios, according to the P. Whitty map of that city, and as being shown thereon as a part of the unplatted portion of Palacios City Townsite Company property out of the T. J. Dasher Survey, more particularly described in haec verba: "Beginning at the south side of Duson Avenue, which point is a prolongation of the west line of Eighth Street, and running south of the water's edge of Tres Palacios Bay; thence East with the meanders of said Bay to a point, which point is the prolongated line (sic) East line of Eighth Street; Thence North along said line to a point on the South line of Duson Avenue; Thence West a distance of eighty feet to the point of beginning, being a strip of land eighty feet in width."

It is well settled as the law of this State that soil lying below the line of ordinary high tide is, in legal contemplation, water, and not land. De Merit v. Robison, Commissioner, 102 Tex. 358, 116 S.W. 796, 797. We will not be extreme to inquire whether the built-up land which plaintiff sues to recover is above or below such line of ordinary high tide, because, at the time plaintiff and those under whom he claims went into possession, the bottom of the Bay upon which such built-up land rests was undoubtedly below the line of ordinary high tide, and if plaintiff and his predecessor went into possession thereof as trespassers, they could not, by simply building up land from the bottom of the Gulf until it rose above such line, acquire title to such bottom. And it is obvious if the State owns the bottom of the Bay upon which the "built-up" land rests, it likewise owns the improvement thereon in the form of "built-up" land. That is true unless there is some law which provides that, under such circumstances, the person making such land shall own it. No such law has been pointed out.

It has been held by our Supreme Court that from the very nature of the property which the government possesses in its navigable waters, bays and bayshores, it can ordinarily be best appropriated by devoting it to public use, and not by granting away any exclusive right to any one. "It often happens, however that the public use and enjoyment, of this species of property, may be promoted and increased, by allowing portions of it to become private property; as for wharves, docks, and the like, in harbors and ports." City of Galveston v. Menard, 23 Tex. 349, 393. The court then goes on to state: "The legislatures of the several states may grant it, if not previously appropriated by grant, prescription, or otherwise; provided, the exercise of an exclusive right, thus granted, does not infringe upon the rights of the government of the United States, in its power `to regulate commerce with foreign nations, and among the several states.'" (Citing authorities.) See also city of Galveston v. Mann, Atty. Gen., 135 Tex. 319, 143 S.W.2d 1028, 1033, wherein it is pointed out that the State, upon its annexation with the United States, retained "`all the vacant and unappropriated lands lying within its limits,' subject only to the superior rights of navigation of the Federal government in the navigable waters of the State".

We understand appellees' position on this appeal is fairly presented in this paragraph quoted from their brief: "Therefore, the testimony showing conclusively that the land sued for was subject to the ebb and flow of the tide, and not the subject of grant [by the Executive Branch of the Government], the title to such land was conclusively proven to be in the State, against whom limitation may not be pleaded; and such testimony...