Ray v. State, 8992.

• Citation: 153 S.W.2d 660
• Decision Date: 09 July 1941
• Docket Number: No. 8992.,8992.
• Parties: RAY v. STATE.
• Court: Court of Appeals of Texas

153 S.W.2d 660

RAY v. STATE.

No. 8992.

Court of Civil Appeals of Texas. Austin.

July 9, 1941.

Rehearing Denied July 26, 1941.

Appeal from District Court. Travis County; Ralph W. Yarbrough, Judge.

Action by the State of Texas against Worth S. Ray, to cancel an award and sale to the defendant of certain realty as unsurveyed school lands and to remove cloud from the title to the land by reason of such award and sale. From a judgment in favor of the state, the defendant appeals.

Judgment affirmed.

J. F. Hair, Amos Felts, Wheeler & Wheeler, and Cofer & Cofer, all of Austin, for appellant.

Gerald C. Mann, Atty. Gen., and Robert E. Kepke, James Noel, and George W. Barcus, Asst. Attys. Gen., for appellee.

BLAIR, Justice.

Appellee, State of Texas, sued appellant, Worth S. Ray, to cancel an award and sale to him by the Land Commissioner of 183.47 acres of land in Dallas County as unsurveyed school land, and to remove cloud from the title to the land by reason of such award and sale. The trial to the court without a jury resulted in judgment for the State as prayed; hence this appeal.

Prior to 1931 the land involved was a part of the bed of the Trinity River, a navigable stream in fact and in law. Chicago, R. I. & G. Ry. v. Tarrant County Water Control Dist., 123 Tex. 432, 73 S.W.2d 55. On August 2, 1930, a part of the water of the river was diverted to a new channel on authority given by the State to the City and County of Dallas Levee Improvement District, and sometime in 1931 about 32 acres of the land were filled in by artificial means to the approximate level of the surrounding terrain. Appellant asserted that the award and sale were valid as to the 32 acres, upon the theory that when the natural bed of the Trinity River was diverted by the new artificial channel, the old river bed was no longer a part of the navigable river bed, and the abandoned channel became a part of the unappropriated public domain, and under the Settlement Act as originally passed and re-enacted belonged to the Permanent School Fund, and was unsurveyed school land within the meaning of Art. 5323, R.C.S.1925, and Art. 5421c (Acts 1931, Chap. 271, p. 452) Vernon's Ann. Statutes, and was subject to sale under each Act, or in any event the 32 acres were a part of the public domain and as such were subject to sale under the latter Act. No claim is here made as to the remaining 151 acres, but it is urged that if the judgment is reversed as to the 32 acres, then the judgment as to the 151 acres should be reversed so as to fully develop its status.

In denying the claims of the appellant, the trial court found and concluded as follows:

"12. I find that all of the land in question comprising 183.47 acres lies within the original, natural bed and channel of the Trinity River, a navigable stream.

"13. I find that the area in question continued to form the natural bed and channel of the Trinity River until August 2, 1930, upon which date a portion of the waters of the Trinity River which otherwise would have been carried by the natural channel thereof, was diverted into a new, artificial, man-made channel, approximately 1/2 mile distant from the natural channel. In this connection, I find that 151 acres of the area in question has continued as a natural river bed with well defined banks, a permanent source of water supply, and is used as a reservoir for drainage purposes containing an intermittently flowing stream of water until the time of the trial of this case, and that into said 151 acres there have always drained some of the natural tributaries of the Trinity River, together with a portion of the flood waters surrounding the City of Dallas, Texas.

"14. I find that approximately 32 acres of the area in question continued as a portion of the natural, original bed and channel of the Trinity River until some time in the year 1931, the exact date not being fixed by the evidence; that in the year 1931, the 32 acres which then comprised a portion of the bed and channel of the Trinity River was filled artificially with dirt through the action of the City and County of Dallas Levee and Improvement District, but following the artificial, man-made filling, said 32 acres thereby was brought to the proximate level of the surrounding terrain, and that such 32 acres thereafter did not contain any current of water, as the same was firm land.

"I find that approximately 32 acres of the area in question, namely, that part of said area which is bounded on the north by Turtle Boulevard and on the south by the south side of Young Street, was during the year 1931, filled hard and firm with a hydraulic fill and that no part of said 32 acres, since the year 1931, has ever been used for drainage, but is firm enough for building purposes and is on a level with the surrounding lands. I further find that the places where the streets south of the 32 acres cross the area sued for have been filled in and is firm land, and that the places where the streets and roads cross the area sued for north of the said 32 acres have been filled in and are firm areas of land. The map attached hereto shows the location of the said 32 acres of land and also shows by name and designation the streets that have been filled in north of and south of said 32 acres.

"15. I find that the State of Texas did not participate in the actual filling with dirt of the above referred to 32 acres. Such filling was done by the City and County of Dallas Levee & Improvement District or other individuals or concerns.

"16. I find that the exact boundaries of the 32 acres above referred to are not fixed by the evidence, and that such boundaries are not described in any application, map or field notes filed in the General Land Office, nor by any pleadings herein, but that the extent of such 32 acres was approximated by the witness T. C. Forrest, who marked a map introduced in evidence in this cause with lines to indicate the approximate area of said 32 acres.

"17. I find that the diversion of the main, original and natural channel of that portion of the Trinity River bed involved in this suit was not caused nor contributed to by...