State v. Bradford

• Decision Date: 05 February 1930
• Docket Number: No. 7439.,7439.
• Citation: 25 S.W.2d 706
• Parties: STATE et al. v. BRADFORD et al.
• Court: Texas Court of Appeals

Page 706

25 S.W.2d 706

STATE et al. v. BRADFORD et al.

No. 7439.

Court of Civil Appeals of Texas. Austin.

February 5, 1930.

Appellants' and Appellees' Motions for Rehearing Overruled February 26, 1930.

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Appeal from District Court, Travis County; Geo. Calhoun, Judge.

Trespass to try title by the State against C. W. Bradford and others, wherein defendants Caswell and another filed cross-actions. From a judgment dismissing suit and cross-action, plaintiff and cross-plaintiffs appeal.

Affirmed in part, and in part reversed and remanded.

R. L. Bobbitt, Atty. Gen., C. W. Trueheart, of San Antonio, W. W. Caves, Asst. Atty. Gen., Geo. E. Shelley and F. C. von Rosenberg, both of Austin, and G. B. Smedley, of Fort Worth, for appellants.

Birge & Nelson, of Amarillo, Bonner, Bonner & Fryer, of Wichita Falls, Y. P. Broome, of Tulsa, Okl., Frank F. Allen, T. F. Morton, and Bryan, Stone, Wade & Agerton, all of Fort Worth, Carrigan, Britian, Morgan & King, of Amarillo, Cofer & Cofer, of Austin, Cook, Smith & McLynn, of Pampa, C. E. Cooper and Davidson & Williams, all of Tulsa, Okl., DeMontel & Sanford, of Wichita Falls, Don Emery, of Amarillo, Fitzgerald & Hatchitt, of Wichita Falls, H. S. Garrett, of Fort Worth, W. P. Z. German and Alvin F. Molony, both of Tulsa, Okl., Karl F. Griffith, R. C. Coffee and Marshall Newcomb, all of Dallas, A. A. Hatch, of Tulsa, Okl., Clayton Heare, of Shamrock, Jno. W. Hornsby, of Austin, R. H. Hudson, of Bartlesville, Okl., T. F. Hunter, of Wichita Falls, James & Conner, of Fort Worth, Geo. L. Kelly and Kilgore, Rogers & Montgomery, all of Wichita Falls, Thompson, Mitchell, Thompson & Young, of St. Louis, Mo., Lackey & Lackey, of Stinnett, Lightfoot, Robertson & Scurlock, of Fort Worth, R. L. Batts, of Austin, Melton & Melton, of Chickasha, Okl., Penix & Penix, of Wichita Falls, Phillips, Trammell, Chizum & Price and Polk & Sansom, all of Fort Worth, Judge B. H. Powell, of Austin, W. H. Francis, A. S. Hardwicke, and Walace Hawkins, all of Dallas, Reynolds & Heare, of Shamrock, A. A. Ledbetter, of McLean, Burney Braly, of Fort Worth, Lewis Rogers, of Houston, Sanders & Scott, of Amarillo, E. G. Senter, of Dallas, Shannon, Oschner & Pheiffer, of Amarillo, Studer, Stennis & Studer, of Pampa, R. H. Templeton, of Wellington, Leslie A. Thompson, Jr., of Denver, Colo., Underwood, Johnson, Dooley & Simpson, of Amarillo, Vinson, Elkins, Sweeton & Weems, of Houston, W. Sherman White, of McLean, White, Wilcox, Taylor & Gardner, of Austin, F. J. Winter, of Houston, L. B. Woodson, of St. Louis, Mo., Works & Bassett, of Amarillo, and Jno. L. Young, of Dallas, for appellees.

BLAIR, J.

The state of Texas sued appellees in trespass to try title to recover an area of land in Gray and Wheeler counties, constituting the bed of the North fork of Red river, alleged to have been appropriated to the public school fund, either by section 2 of article 7 of the state Constitution, or by the Act of February 23, 1900 (Acts 26th Leg. 1st Called Sess. c. 11). As ground for recovery the state alleged that said river was a statutory navigable stream, in that it "retained an average width of more than thirty feet from cut bank to cut bank from its mouth up," at the time of and continuously since the making of the surveys and awards and the issuing of the patents in controversy; that the lines of these surveys crossed or partly crossed said navigable stream, in violation of article 5302 (Rev. St. 1925), and were therefore illegal to the extent of the inclusion of the river bed area; and that the awards and patents were likewise and to the same extent illegal and void as covering an area or portion of the public domain reserved by public policy and law from locations; and that, although the area in controversy was embraced within the lines and acreage of the surveys, title thereto was by necessary implication reserved to the state, in that the instruments evidencing the sales made no mention of and did not by express language sell or dispose of said area.

Appellants Caswell and Reed were made party defendants upon the allegation that they were asserting some interest in the land. They filed separate, but identical, answers, except as to the specific land claimed, contending that they had done all acts and things necessary to obtain oil and gas permits in virtue of the Mineral Act of 1917, and by their cross-action sought to have their rights to such permits established in the event the state recovered the land, as against the state and all appellees.

By amended pleadings the state pleaded that the Small Bill (Act March 3, 1929 [Gen. & Sp. Laws 41 St. Leg. c. 138]) had no application to the land in controversy, because this suit was pending at the time the act was passed, which made no reference to and did not purport to be retrospective as regards the subject-matter of this suit; and that, if the act should be held to be applicable to the subject-matter of this suit, then it was unconstitutional as being in violation of sections 4 and 5, art. 7, and section 59a of article 16 of the state Constitution. Appellees pleaded the act as perfecting their respective titles to whatever interest in the land in controversy it undertook to confirm, validate, quitclaim, relinquish, or grant.

Appellees' general demurrers to the state's petition and the cross-actions of Caswell and Reed were sustained and their respective suits dismissed upon their refusal to amend; hence this appeal.

As against the general demurrers sustained, the state's petition alleged sufficient facts to constitute the North fork of Red river a statutory navigable stream at the time of and continuously since the making of the surveys and awards and the issuing of the patents in question. It alleged that the stream retained an average width of more than 30 feet from its mouth up, which is the only fact necessary to constitute a statutory navigable stream. It also alleged that the stream retained an average width of more than 30 feet from cut bank to cut bank from its mouth up, which brings it within the test and meaning of a statutory navigable stream as defined in the case of Motl v. Boyd, 116 Tex. 82, 286 S. W. 458, 467. See, also, Hoefs v. Short, 114 Tex. 501, 273 S. W. 785, 40 A. L. R. 833.

In this connection we also conclude that the specific allegations with respect to the upper reaches or portions of the stream, to the effect that "there is no permanent flowing water on the surface of the sand-bed, there being no springs or source of water other than rainfall," but that "about four or five times a year" the stream runs "full channel * * * without overflow * * * from rainfall," do not militate against the general allegation that the stream retained an average width of more than 30 feet from its mouth up; and the facts so alleged bring that portion of said stream clearly within the test and meaning given a statutory navigable stream in the case of Motl v. Boyd, supra. In that case it was held that Spring creek was a statutory stream, because it "retained an average width from its mouth up of more than 30 feet * * * between the banks * * * although the water flow therein in ordinary seasons is less than 30 feet of this width"; that "a water course, river, or stream consists of a bed, banks, and a stream of water"; and that:

"The bed of a stream is that portion of its soil which is alternately covered and left bare as there may be an increase or diminution in the supply of water, and which is adequate to contain it at its average and mean stage during an entire year, without reference to the extra freshets of the winter or spring of the extreme drouths of the summer or autumn. * * * The banks of a stream or river are the water-washed and relatively permanent elevations or acclivities at the outer lines of the river bed which separate the bed from the adjacent upland, whether valley or hill, and served to confine the waters within the bed and preserve the course of the river when they rise to the highest point at which they are still confined to a definite channel."

There can be no question but that the facts alleged in this case are much stronger in support of a statutory navigable stream than the facts proved and found to constitute a statutory navigable stream in either the Motl v. Boyd Case or the Hoefs v. Short case. In addition to the above facts the petition alleges that the river bed area involved begins on the east line of Wheeler county and runs west entirely across same and across a considerable portion of Gray county. It is the same stream which in the case of United States v. Texas, 162 U. S. 1, 16 S. Ct. 725, 40 L. Ed. 867, was claimed to be the main Red river and the northern boundary of the state, evidence being introduced to the effect that it was longer, wider, and drained more territory than did the South fork, which was declared to be the boundary line in that suit.

The facts alleged in the petition show the survey lines in question to have crossed or partly crossed a statutory navigable stream within the meaning and effect of article 5302, and in violation thereof, and therefore the surveys and awards made and patents issued, in so far as the river bed area was included or affected, are void as covering land reserved from location under the public policy and laws of this state. As bearing upon the meaning and effect of article 5302, see, also, City of Austin v. Hall, 93 Tex. 591, 57 S. W. 563; New York & Tex. Land & Cattle Co. v. Thomson, 83 Tex. 169, 17 S. W. 920; Swisher v. Grumbles, 18 Tex. 164; Landry v. Robison, 110 Tex. 295, 219 S. W. 819; State v. Grubstake Investment Ass'n, 117 Tex. 63, 297 S. W. 202; State v. Black Bros., 116 Tex. 615, 297 S. W. 213, 53 A. L. R. 1181; Petty v. City of San Antonio (Tex. Civ. App.) 181 S. W. 224; Bunnell v. Sugg (Tex. Civ. App.) 135 S. W. 701. As supporting the proposition that the surveys, locations, and awards made and the patents...