Luttes v. State

• Decision Date: 18 June 1958
• Docket Number: No. A-5858,A-5858
• Parties: J. W. LUTTES et al., Petitioners, v. The STATE of Texas,Respondent.
• Court: Texas Supreme Court

Page 167

324 S.W.2d 167

159 Tex. 500

J. W. LUTTES et al., Petitioners, v. The STATE of Texas,Respondent.

No. A-5858.

Supreme Court of Texas.

June 18, 1958.

Rehearing Denied Dec. 10, 1958.

Second Motion for Rehearing Denied May 6, 1959.

Davenport & Ransome, Brownsville, for J. W. Luttes.

R. H. Whilden, W. G. Winters, Jr., C. E. Nadeau, Houston, Dan Moody, Austin, for Shell Oil Co.

Will Wilson, Atty. Gen., J. Arthur Sandlin, Asst. Atty. Gen., for respondent.

GARWOOD, Justice.

The ultimate issue in this dispute between the State of Texas (defendant below, by consent, and respondent here) and the plaintiffs, Luttes et al. (our petitioners) is the title to some 3,400 acres of mud flats or former sea bottom in Cameron County lying along, and alleged to be accretions to, the mainland or westerly edge of the long, narrow lagoon known as Laguna Madre, about fifteen or twenty miles north of Port Isabel and the mouth of the Rio Grande River, and about fifteen miles south of Port Mansfield on the Laguna. The Laguna, of course, lies between the mainland on the west and, on the east, the long, narrow, sandy island called Padre, the eastwardly side of which latter is the shore of the Gulf of Mexico.

The flats about to the west upon a line of the upland or mainland characterized by a steep angle of elevation, although the altitude of the land along this line is hardly enough to justify the name 'bluff line' which the parties call it. This line was the original easterly boundary of the now admittedly valid 1829 grant of lands on the mainland from the Mexican State of Tamaulipas to Manuel de la Garza Sosa, to whose rights the petitioners-plaintiff have succeeded. The grant, known as Potrero de Buena Vista, stipulated as its easterly or seaward boundary the westerly 'shore' of the Laguna.

In a trial to the court and upon elaborate fact findings by the trial judge, judgment went for the State and was affirmed by the Waco Court of Civil Appeals upon transfer. 289 S.W.2d 357.

The property claim of the State in the premises is, of course, that of successor (since 1836) to the Mexican nation or state, which latter, prior to the grant, admittedly owned the bottoms and shores of public waters such as the Laguna, as well as the upland granted. At the date of the grant, and, indeed, for well over half a century thereafter, the area in suit was always covered by the waters of the Laguna and thus admittedly did not pass to the grantee at the time of the grant nor thereafter, unless at some time about the first quarter of the present century. Accordingly, had this suit occurred some half century sooner than it did, the result would admittedly have favored the State.

However, since some obscure date in the past, the area has been progressively rising in relation to the Laguna waters, with the result that it is now from 0.25 feet to 1 foot above mean sea level, in greater part above the line of 'mean high tide' (as hereinafter explained) and covered by the waters, not as a regular daily, weekly or even monthly matter, but only at irregular intervals and in irregular amounts, although, from the rather meager record in this behalf, it cannot be said that the presence of sea water in substantial quantity is rare.

The petitioners-plaintiff say that under the evidence and applicable principles of law, the land has become, since some forty years ago, a part of the upland as distinguished from sea bottom or seashore and, having become such by a genuine process of accretion to the earlier upland, the title to it has accordingly passed from the State to them as upland owners. On the other hand, the respondent-defendant State contends: first, that, although the area in dispute may have long since ceased to be mere sea bottom, it is, nevertheless, not upland or fast land, but seashore, as the latter term is defined by the Mexican (Spanish) law, which was admittedly in force at the date of the grant and thus controls thereafter the effect of the grant; that accordingly the area still belongs to the State, as admittedly it does if it is properly seashore. In the same connection, the State asserts that by the governing Mexican (Spanish) law, the landward or upper line of the 'shore' is not the line of 'mean high tide', (or 'mean high water'; see 'Tide an dCurrent 'mean high water'; see 'Tide and Current Revised (1949) Ed., U. S. Dept. of Com., Coast & Geodetic Survey, p. 23), which applies only in respect of grants made by Texas after she adopted the common law in 1840, but a higher or more landward line. We are not certain as to the State's view of just what this line is in terms of practical determination, but the contention seems to be that it is either the highest-most landward-line reached by the waters on any one occasion that can be proved or perhaps the average of single highest annual lines for such years as to which proof is available. Storm high waters are admittedly not to be taken into consideration.

Alternatively, but no less importantly, the State contends: that, even conceding the area in question to be now upland or fast land, as distinguished from 'shore', the petitioners-plaintiff had the heavy burden (as they clearly did) which they have failed to discharge to the proper satisfaction of the trial court, of establishing factually, (a) that the status of the area as fast land is due to genuine accretion, that is, the gradual forces of nature herself as distinguished from human factors, and (d), that any such genuine accretion was accretion to their abutting upland rather than to certain islands or other admittedly state-owned areas to seaward of the original seaward boundary of the grant ¹.

Relevant to the foregoing contentions are the following facts, which, except as otherwise stated, may be taken as true: the 3,400-acre disputed area is the bulk of a somewhat larger area of about 4,000 acres, which is roughly in the form of a triangle, with its base (some three or more miles long north and south) being the original easterly boundary of the grant and, for well over a half century thereafter, the westerly line of the Laguna waters, while the other two sides (some two and a half or three miles each) run out respectively southeast and northeast from the base line to converge or terminate respectively at the northerly and southerly ends of a fairly narrow island, or former island, over a half mile long, called 'North Three Islands'. Along the northerly line of the triangle and something over two miles northwest of North Three Islands lies a similar 'island' called Yucca, although the latter runs more in an east-to-west direction than the former, and all of it lies within the triangle.

About a half mile northwardly of Yucca lies another 'island' called Heron, which is partly within the triangle, while northwardly of Heron and outside the triangle lie several others. More or less paralleling these latter islands to the northwest and outside of the triangle is a peninsula-type area called Horse Island over two miles long, rather narrow and jutting out northeasterly from a point near the north end of the mentioned base line.

All of the so-called islands above mentioned are elevated well above the flats and were admittedly true islands until at least sometime between 1920 and 1930, title to Heron, Yucca and North Three Islands being thus admittedly in the State. The petitioners-plaintiff concede also that of the total 4,000-acre area of the triangle, some 600 acres adjacent to the respective named islands represent accretions accruing to the islands, as distinguished from accruals to the mainland, and thus also belong to the State.

Immediately outside the converging sides of the triangle, that is, to the northeast, east and southeast thereof, and beyond the mentioned islands, lie what are admittedly the open waters of the Laguna, through which the Intracoastal Canal, a well-used ship channel about twelve feet deep and with a sometimes quite strong current, runs in a northwesterly-southeasterly line flanking the triangle to the eastward and passing it within less than a half mile at the closest point just eastwardly of the apex, which is North Three Islands. The Canal was constructed by dredging sometime between 1940 and 1949. As a result of the dredging, a quite large number of spoil banks were left projecting well above the waters on the westerly side of the canal, between it and the entire area in suit, which tend to obstruct the free passage of water from the Laguna toward that area.

At the north of the area in suit, the southwesterly end of the Horse Island peninsula aforementioned was, as late as about 1915, separated from the mainland by a narrow channel running southwardly through or into the area in controversy and thus cutting off much of its northern portion from the then easterly boundary of the grant. North of Horse Island lies a quite large low area known as the National Wild Life Refuge, which is sometimes covered with the Laguna waters, and still further north lies the Harlingen Ship Channel (another more or less artificial canal) running in a straight line eastwardly from the mainland and from a stream called the Arroyo Colorado to join up with the Intercoastal Canal, more or less at right angles, and at a point several miles northwardly or the area in controversy. Formerly water from the region north of the latter area used to pass between the mainland and the southwesterly end of Horse Island; but at some time between 1924 and 1934 a bridge over the gap was replaced by an earthern fill or dam, and thereafter no water has passed through. The Harlingen Ship Channel was constructed at sometime between 1940 and 1949, and the dredging of it, like that of the Intercoastal Canal, has left substantial spoil banks alongside it which have since to some degree interfered with the free movement of waters north and south.

The surface of the area in question, including the disputed 3,400 acres, has the...