State v. Bradford

• Decision Date: 01 June 1932
• Docket Number: No. 5765.,5765.
• Citation: 50 S.W.2d 1065
• Parties: STATE et al. v. BRADFORD et al.
• Court: Texas Supreme Court

Page 1065

50 S.W.2d 1065

STATE et al. v. BRADFORD et al.

No. 5765.

Supreme Court of Texas.

June 1, 1932.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Action by the State of Texas against C. W. Bradford and others, wherein defendants Caswell and another filed cross-action. Judgment dismissing the suit and cross-action was affirmed in part and in part reversed and remanded by the Court of Civil Appeals [25 S.W.(2d) 706], and plaintiff and cross-plaintiffs bring error.

Judgment of the Court of Civil Appeals affirmed in part and reversed in part, and cause remanded.

Robert Lee Bobbitt, former Atty. Gen., C. W. Trueheart and W. W. Caves, former Asst. Attys. Gen., James V. Allred, Atty. Gen., and F. O. McKinsey, Asst. Atty. Gen., for the State.

G. B. Smedley, of Fort Worth, and F. C. Von Rosenberg and George E. Shelley, both of Austin, for plaintiffs in error Reed and Caswell.

C. A. Wilcox and White, Wilcox, Taylor & Gardner, all of Austin, Birge & Nelson, of Amarillo, Bonner, Bonner & Fryer, of Wichita Falls, Y. P. Broome, of Tulsa, Okl., T. F. Morton, F. F. Allen, and Bryan, Stone, Wade & Agerton, all of Fort Worth, Carrigan, Britain, Morgan & King, of Amarillo, Cofer & Cofer, of Austin, Cook, Smith & McLynn, of Pampa, C. E. Cooper and Davidson & Williams, all of Tulsa, Okl., De Montel & 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., Charles Hill Johns, of Oklahoma City, Okl., Karl F. Griffith, Roy C. Coffee, and Marshall Newcomb, all of Dallas, A. A. Hatch, of Tulsa, Okl., Clayton Heare, of Shamrock, John W. Hornsby, of Austin, R. H. Hudson, of Bartlesville, Okl., T. F. Hunter, of Wichita Falls, James & Conner, of Fort Worth, George L. Kelly and Kilgore, Rogers & Montgomery, all of Wichita Falls, Thompson, Mitchell, Thompson & Young and Koerner, Fahey & Young, all of St. Louis, Mo., Lackey & Lackey, of Stinnett, Lightfoot, Robertson & Scurlock, of Fort Worth, Melton & Melton, of Chickasha, Okl., R. L. Batts, of Austin, Penix & Penix, of Wichita Falls, Phillips, Trammell, Chizum & Price and Polk & Sansom, all of Fort Worth, Ben H. Powell, of Austin, W. H. Francis, A. S. Hardwicke, and Walace Hawkins, all of Dallas, Reynolds & Hear, of Shamrock, A. A. Ledbetter, of McLean, Lewis Rogers, of Houston, Burney Braly, of Fort Worth, Sanders & Scott, of Amarillo, E. G. Senter, of Dallas, Shannon, Ochsner & Pheiffer, of Amarillo, 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 Pampa, F. J. Winter, of Houston, L. B. Woodson, of Dallas, Works & Bassett, of Amarillo, John L. Young, of Dallas, and S. D. Stennis, of Pampa, for defendants in error.

SHARP, C.

For a partial statement of the nature and result of this case we adopt the statement made by Associate Justice Blair in the opinion rendered by the Court of Civil Appeals, which reads as follows:

"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 [Acts 35th Leg. c. 83], 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 (Vernon's Ann. Civ. St. art. 5414a)]) 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."

From the judgment of the trial court, the state appealed, and the Court of Civil Appeals held that the pleadings in the trial court with respect to the navigability of the North fork of Red river were sufficient, and that it was error to sustain general demurrers thereto, and the judgment in this respect was reversed and remanded for a new trial upon that issue. In all other respects the judgment of the trial court was affirmed. 25 S.W.(2d) 706. A writ of error brings the cause here.

Plaintiffs in error contend that the Court of Civil Appeals erred in holding that, under the facts set out in the petition of the state, the power of determining the navigability of the North fork of Red river, as defined by the statute, was not vested in the surveyor who made the surveys and locations, and the land commissioner who approved them and made the awards and issued the patents, and that it will not be conclusively presumed, in the absence of fraud or collusion, that these officers, in the exercise of their discretion and honest judgment, found the stream to be nonnavigable and made the surveys, locations, and awards and issued the patents in question, including therein the river bed area, as a part of the land sold, and that such decision is not binding and conclusive upon plaintiffs in error.

On the contrary, the state contends that, the North fork of the Red river being navigable, under the law of this state, the bed of the river was held in trust by the state for the benefit of the whole people, and was not subject to be sold as was done, that that part of the land embraced within the patents which lies in the river bed was never legally sold or conveyed, and that the patents or sales covering that portion of the river bed are void, and that the land still belongs to the State.

The state in its pleadings alleged:

"4. That the North Fork of the Red River in the State of Texas and in said counties of Gray and Wheeler, is a navigable stream within the purview of the laws of the State of Texas, in that same retains an average width of thirty feet from its mouth up, and particularly in so far as it traverses the State of Texas. * * *

"7. The foregoing allegation that the North Fork of the Red River insofar as here sought to be recovered, is and was at the times aforesaid a statutory navigable stream, is made separately with respect to said area from the East line of section 123, Block B2, H. & G. N. Railway Company, Gray County, Texas. to the East line of Section 2 of said block, and as to said upper area is based solely and alone upon the following characteristics of the North Fork of the Red River through and in said area, towit:

"(a) The North Fork of the Red River through and in said area retained an average width of thirty feet from its mouth up from cut bank to cut bank at the time of the making of the aforesaid original and corrected surveys, and at the time of the making of the grants, and at the time of the making of the sales of school lands, hereinafter referred to, the distance from cut bank to cut bank through this area ranging from thirty-two and one-half feet to six hundred feet and averaging one hundred and forty-eight feet.

"(b) The sand bed of the stream in this area is devoid of vegetation, except that there are a few large isolated cotton-wood trees, about fifteen in number, at irregular intervals, the cut banks through this area being from three to ten feet high, and the higher portions of the river bed frequently have some grasses and small vegetation upon them.

"(c) Through this area in the bed and between the cut banks, as above defined, there is no permanent flowing water on the surface of the sand-bed, there being no springs or source of water other than rain-fall, (except as shown in subdivision `(d)' hereof), such water from rain-fall coming usually from rains in that locality but occasionally when no rain is seen in that locality, and from points above on the North Fork of the Red River, and the water running only...