State v. Arnim

• Decision Date: 14 July 1943
• Docket Number: No. 11294.,11294.
• Citation: 173 S.W.2d 503
• Parties: STATE et al. v. ARNIM et al.
• Court: Texas Court of Appeals

173 S.W.2d 503

STATE et al. v. ARNIM et al.

No. 11294.

Court of Civil Appeals of Texas. San Antonio.

July 14, 1943.

Rehearing Denied August 4, 1943.

Appeal from District Court, San Patricio County; W. G. Gayle, Judge.

Trespass to try title by F. V. Arnim and others against A. D. Aiken and others, wherein the State of Texas intervened, which action was consolidated with three other cases. From the judgment, State of Texas and others appeal.

Affirmed in part and reversed and remanded with directions in part.

Gerald C. Mann, Atty. Gen., and Cecil C. Rotsch, Fagan Dickson, and Peter Maniscalco, Asst. Attys. Gen., for the State.

Rockey Harkey, of Sinton, for appellant A. D. Aikin.

Boone, Henderson, Boone & Davis and W. B. McCampbell, all of Corpus Christi, and W. B. Moss, of Sinton, for appellees.

NORVELL, Justice.

Two questions are involved in this appeal: (1) Is the Henry Sheston Survey No. 2, San Patricio County, riparian to Nueces Bay? (2) Did the deeds executed by J. H. Drummond conveying Lots Nos. 6, 7 and 8 out of the Drummond Subdivision of a 4049-acre tract of land vest in the grantees (and appellees holding under them) riparian rights in and to Nueces Bay?

This is a consolidated cause. Four separate suits, similar in nature to trespass to try title actions, were brought in accordance with the provisions of Article 5421c, § 6, Subdivision j, Vernon's Ann.Civ.Stats., General Laws 1939, 46th Legislature, pp. 472, 473. A. D. Aiken, who allegedly asserted a claim to the lands involved under a mineral lease executed by the Commissioner of the General Land Office, was named defendant. The State of Texas by its Attorney General intervened and filed a not guilty plea.

Trial was to the court without a jury. Express findings of fact and conclusions of law were filed.

Judgment was rendered against the plaintiffs below, who (in Cause No. 5373) asserted title to Lots 9 and 10 of the Drummond Subdivision, and no appeal was taken from this part of the judgment. The asserted owners of Lots Nos. 6, 7 and 8 of the Drummond Subdivision were, however, awarded judgment against the State and Aiken. The effect of this judgment was to recognize and establish said lots as riparian to Nueces Bay.

It appears that appellees Arthur Starr, Corrie B. Fitzsimmons and Gordon Boone are the owners of Lot No. 6 (involved in Cause No. 5376); Connie May Starr and Arthur Starr are the owners of Lot No. 7 (involved in Cause No. 5375); and F. V. Arnim and Kathleen Lord Arnim are the owners of Lot No. 8 (involved in Cause No. 5374). The Phillips Petroleum Company claims a mineral leasehold estate in each of the three lots mentioned.

There appears to be no controversy as to actual location of various lots in the Drummond Subdivision upon the ground. However, upon the trial a considerable controversy developed as to the actual location of the lines of the original surveys included within the Drummond Subdivision. The location of these lines with reference to the Drummond Subdivision was, however, settled by the trial court's finding that "Lot No. 6 of said Drummond Subdivision lies wholly within said W. W. Bell Survey No. 3. The larger portion of Lot 7 of said Drummond Subdivision lies in said W. W. Bell Survey, and the remaining portion of said lot lies within and is a part of said Sheston No. 2 Survey; Lot 8 of said Drummond Subdivision is also a part of said Sheston No. 2 Survey."

Appellees do not attack the trial court's finding above set out, by either cross-point or cross-assignment, and consequently the finding is binding upon us.

As above indicated, the Drummond Subdivision is a resubdivision of a number of surveys or parts of surveys in the vicinity of Nueces Bay. We are here primarily interested in Henry Sheston Survey No. 2, and W. W. Bell Survey No. 3, and incidentally in Henry Sheston Survey No. 1 Unless Lots Nos. 6, 7 and 8 of the Drummond Subdivision, and also Sheston No. 2, or Bell No. 3, include the lands in controversy, appellees are without title. Appellees assert that Bell No. 3 is a riparian grant, and also that the part of Sheston No. 2 which includes Lot No. 8 and a part of Lot No. 7 of the Drummond Subdivision borders on Nueces Bay, and is consequently riparian thereto. The State admits that Bell No. 3 is riparian, but vigorously contends that Sheston No. 2 is not. The lands involved are primarily accretions along the bay shore.

In 1838, John R. Talley, deputy surveyor of Refugio County, located a series or system of twelve contiguous surveys for Henry Smith, the assignee of the holders of various land warrants under which the surveys were authorized. Patents for these surveys were afterwards issued to Smith by the State of Texas.

These twelve surveys were located by Talley near the mouth of the Nueces River in the vicinity of Nueces Bay, some of them being upon the shore of the bay. The bay shore line in the area with which we are here concerned runs approximately east and west. The first survey located by Talley for Smith was Henry Sheston No. 1, the westernmost survey of the Smith system. Talley's field notes for this survey read as follows: "No. 1 commences at a stake in a lagoon or marsh from which a small hackberry 3 inches in diameter bears S 67-¼ E distant 13.76 chs (327 vrs) and another 6 inches in diameter bears N. 49 E thence meandering the bluff bank of high land (separated from the river by marsh and lagoons for the distance of about 2 miles) S 67-½ E 17.72 chs (421 vrs.) S 78¾° E 64.82 chs. (1540 varas) North 4.72 chs (112 vrs) to the Southeast corner a stake from which the White Bluff bears S 44-¾ E and a hackberry 12 inches in diameter bears N 40-½ W distance 7.55 chs (179 vrs.) thence North 83.64 chs. (1987 vrs.) to the N.E. corner a stake and mound, thence West 80 chs. 1905.6 varas) to the N.W. corner a stake and mound — thence South 68.92 chs. (1637 vrs.) to the beginning."

Sheston No. 1 is not a riparian survey, and appellees do not contend that it is.

Immediately to the east of Sheston No. 1, Talley located Sheston No. 2, with the following field notes: "No. 2 commences at the S.E. corner of the foregoing survey thence meandering the bluff bank East 23.72 chs (563 vrs.) South 13.00 chs. (309 vrs.) N. 62-½° E 10.00 chs. (238 vrs.) S. 57-¾ E 10.00 chs (238 vrs.) S 85-½ E 14.00 chs. (333 vrs.) S 24-¼ E 7.00 chs. (166 vrs.) S 84-½ E. 10.00 chs. (238 vrs.) N. 51-½ E. 15.55 chs. (369 vrs.) South 11.48 chs. (273 vrs.) to S.E. corner stake on the bluff, from which the mouth of the Nueces bears S. 3-¾° E. and a hackberry in a grove bears N. 20-½ W distant 3.15 chs. (75 vrs.) diameter 6 inches, thence north 93.14 chs. (2212 vrs.) to the N.E. corner a stake and mound, thence West 80.00 chs. (1905 vrs.) to the N.W. corner a stake and mound, thence South 69.18 chs (1647 vrs.) to the beginning."

We here remark that if the field notes of Sheston No. 2 be considered alone, it can hardly be said that Sheston No. 2 is a riparian survey. Nueces Bay is not called for in the field notes and the south boundary line consists of a meander line along the bluff and not along the shore of the bay. The evidence clearly shows that at the time of trial there existed a bluff or steep bank varying in height from thirty to fifty feet above the low flat land separating it from the bay shore. The indications are that a similar condition existed at the time of Talley's survey, although, of course, the area of flat low land separating the bluff from the shore line was probably not nearly so great as it is at the present time. It may have been a comparatively narrow strip in 1838.

Immediately to the east of Sheston No. 2, Talley located Bell No. 3, an admittedly riparian survey. Talley's field notes of this survey are as follows: "Commencing at the S.E. corner of Survey No. 2 thence meandering the bay shore East 64.00 chs. (1524.4 vrs.) S 9-½ E 45.00 chs. (1072 vrs.) S 26 E 19.55 chs. (465.7 vrs.) to the S.E. corner a stake from which White Bluff bears S 3-¼° E, the mouth of the Nueces bears S 23-¾° W and a hackberry (in a grove) 7 inches in diameter bears N 88-¾ W distant 3.21 chs. (76.4 vrs.), thence North 134.19 chs. (3196.4 vrs.) to a stake and mound the N.E. corner, thence West 80. chs. (1905.6 vrs.) to a stake and mound the N.W. corner, thence South 72.24 chs. (1720.7 vrs.) to the beginning — 3.613280 Sq. varas."

Since the three surveys mentioned are a part of one system of surveys, we may properly consider the southern boundary lines of all three surveys as if they were in fact the southern boundary line of one survey. By combining Talley's notes of his southern boundaries of the three surveys, we obtain the following line extending from the Southwest corner of Sheston No. 1 to the Southeast corner of Bell No. 3, viz.: "Commencing at a stake in a lagoon or marsh (S.W. corner of Sheston No. 1) thence meandering the bluff bank of high land S 67½° E. 421 varas; S. 78-¾° E. 1540 varas; North 112 varas to a stake, being the S.E. corner of Sheston No. 2; thence meandering the bluff bank East 563 varas; south 309 varas; N. 62-¼° East 238 varas; South 57-¾° East 238 varas; South 85½° East 333 varas; South 24-¼° East 166 varas; South 84½° East 238 varas; North 51½° East 269 varas; south 273 varas to S.E. corner stake on the bluff; (S.E. corner of Sheston No. 2 S.W. corner of Bell No. 3), thence meandering the bay shore East 1524.4 varas; South 9½° E. 1072 varas; South 26° East 465.7 varas to a stake at the southeast corner of Bell No. 3."

It seems to be appellees' contention that as Talley begins to meander the bay shore at the Southwest corner of the Bell, and Talley makes the southwest corner of the Bell identical with the Southeast corner of Sheston No. 2, the common point or corner must be accepted as being upon the bay shore although Talley in the Sheston No. 2 field notes refers to "S.E. Corner stake on the bluff." From this it is inferentially argued that the south line of Sheston No. 2 must have run to...