State v. Brainard

• Decision Date: 10 February 1998
• Docket Number: No. 07-96-0231-CV,07-96-0231-CV
• Citation: 968 S.W.2d 403
• Parties: The STATE of Texas, et alius, Appellants, v. E.H. BRAINARD, II, et al., Appellees.
• Court: Texas Court of Appeals

Page 403

968 S.W.2d 403

The STATE of Texas, et alius, Appellants, v. E.H. BRAINARD, II, et al., Appellees.

No. 07-96-0231-CV.

Court of Appeals of Texas,

Amarillo.

Feb. 10, 1998.

Opinion Overruling Rehearing May 5, 1998.

Dan Morales, Atty. Gen., Austin, Jorge Vega, First Asst. Atty. Gen., LaQuita A. Hamilton, Deputy Atty. Gen., for Litigation, Hal R. Ray, Jr., Asst. Atty. Gen., Chief Natural Resources Div., Priscilla M. Hubenak, Mary A. Keeney, Asst. Attys. Gen.,. for appellants.

Michael V. Powell, Locke, Purnell, Rain and Harrell, Dallas, Jody Sheets, D. Clay Holcomb, Sheets & Holcomb, Amarillo, for appellees.

Before BOYD, C.J., REAVIS, J., and REYNOLDS, Senior Justice. ^*

CHARLES L. REYNOLDS, Senior Justice (Retired).

The State of Texas and its General Land Office perfected this appeal to challenge a judgment by which the trial court summarily determined the boundaries of the Canadian River abutting certain described real properties located in Hutchinson and Roberts Counties and, accepting a jury verdict, assessed attorney's and surveyor's fees against the General Land Office. Because unresolved material fact issues preclude the summary adjudication, and the award of fees was not authorized, we will reverse and remand in part and reverse and render in part.

Beginning in the Sangre de Cristo Mountains in northeastern New Mexico, the Canadian River traverses the Texas Panhandle, including Hutchinson and Roberts Counties, on its course to join the Arkansas River in eastern Oklahoma. In 1962, construction of the Sanford Dam, situated on the river some fourteen miles west of the nearest property involved in the boundary dispute, was commenced to impound waters of the river in Lake Meredith to supply water to city members of the Canadian Municipal Water Authority and to provide flood control for the region. At the site, the water in the river flowed over an area approximately 2,500 feet wide and, at that time, there was a wide variation of the annual flow of water in the river due to erratic occurrences of floods, with the river occasionally being dry for considerable periods.

The dam was completed in 1965, its flood gates were closed, and no controlled release of the impounded waters has occurred. The volume of water flowing downstream from the site of the dam before its construction was immediately and drastically reduced after the flood gates were closed since only about three to five percent of the annual inflow behind the dam escapes as seepage. The impoundment of water behind the dam produced physical changes in the riverbed below the dam of less water and more vegetation.

The narrowing of the general width of the flowing water in the river downstream from the dam produced confusion and uncertainty as to the location of the boundary lines between the Canadian River and certain designated surveys in Hutchinson and Roberts Counties with patented field notes calling for a common boundary with the river. The State of Texas, supported by an attorney general's opinion, claimed that the dam did not alter the bed of the river as it existed before the dam was constructed; certain owners of land adjacent to the river contended that the boundary of the river must be This situation prompted the Legislature's 1989 adoption of a Senate concurrent resolution, by which permission to sue the State of Texas and the General Land Office to determine and establish the boundary line between the described surveys and the river was granted to E.H. Brainard, II and others, ¹ and to any intervenor found by the court to be a proper party. ² Tex. S. Con. Res. 165, 71st Leg., R.S., 1989 Tex. Gen. Laws 5909. In granting permission to sue, the Legislature resolved:

determined by a survey of the present day conditions of the river.

That any final judgment adjudicating the title dispute in a suit brought concerning title to boundaries of the Canadian River under this resolution shall be limited to settling the title dispute and may not authorize an award of monetary damages or attorney's fees....

Id. at 5910.

Pursuant to the resolution, Brainard and others (collectively, Brainard) initiated the action underlying this appeal in Roberts County. The issue of the location of the boundaries of the Canadian River, a navigable stream under Texas law but not in fact, was joined by the State of Texas and the General Land Office (collectively, the State). On the boundary issue, Brainard moved for partial summary judgment, and the State moved for summary judgment, primarily on the strength of boundary surveys performed respectively by W.C. Wilson, Jr. for Brainard, and Darrell Shine for the State, both of whom are licensed in Texas as professional land surveyors. Brainard also pleaded for attorney's and surveyor's fees.

After a venue change to Hutchinson County, the trial court granted Brainard's motion to exclude the survey performed by the State's surveyor Shine and testimony related thereto on the theory that the pre-dam boundary was legally incorrect and irrelevant, and found Brainard was entitled to judgment establishing that the survey performed by Wilson accurately depicted the gradient boundary of the Canadian River. Presenting the questions of attorney's and surveyor's fees to a Collingsworth County jury on another change of venue, the court accepted the jury's verdict fixing the sums of $144,000 as surveyor's fees, $350,000 as attorney's fees for trial, $15,000 as attorney's fees for an appeal to the court of appeals, and $5,000 as attorney's fees for an appeal to the Supreme Court.

The court granted Brainard's post-trial motion for prejudgment interest. Then, the court rendered a final judgment establishing the boundaries of the Canadian River as depicted in the Wilson survey, and decreed recovery by Brainard from the General Land Office of $238,507.73 as surveyor's fees, $579,706.29 as attorney's fees, together with an additional $15,000 for an appeal to the court of appeals and $5,000 for an appeal to the Supreme Court, with post-judgment interest.

Utilizing six points of error, the State charges the trial court with error (1) in granting summary judgment for Brainard, because (4) the location of the boundary by Wilson is premised on incorrect legal principles, and (5) fact questions exist as to the correctness and accuracy of his survey. The State also charges the court with error (3) in holding the testimony of the State's witnesses was inadmissible, and (2) in denying The parties accept that the correct methodology for marking the boundaries between the lands of Brainard and other parties and the river is to establish the gradient boundaries as articulated in Oklahoma v. Texas, 260 U.S. 606, 43 S.Ct. 221, 67 L.Ed. 428 (1923), 261 U.S. 340, 43 S.Ct. 376, 67 L.Ed. 687 (1923), and 265 U.S. 493, 44 S.Ct. 571, 68 L.Ed. 1118 (1924), and applied in Texas. See, e.g., Maufrais v. State, 142 Tex. 559, 180 S.W.2d 144, 147-48 (1944); Motl v. Boyd, 116 Tex. 82, 286 S.W. 458, 467 (1926). ³ The theory and plan of the gradient boundary was attributed to Arthur A. Stiles, 30 Tex. L.Rev. 305, ⁴ one of two cadastral engineers designated as commissioners by the Supreme Court to locate and mark upon the ground the boundary line between the states of Texas and Oklahoma along the Red River. 261 U.S. at 343, 43 S.Ct. at 377.

the State's motion for summary judgment, because as a matter of law Shine's survey correctly locates the boundary of the river. Finally, the State charges the court with error (6) in awarding Brainard recovery of attorney's and surveyor's fees, and (7) in awarding prejudgment interest thereon. Brainard has three cross-points, conditionally presented in the event of a reversal, to challenge the trial court's change of venue from Roberts County to Hutchinson County.

"The boundary line," according to Stiles, "is a gradient of the flowing water in the river ... located midway between the lower level of the flowing water that just reaches the cut bank and the higher level of it that just does not overtop the cut bank," and "the gradient boundary was finally established and fixed at the mid-height point of the lowest 'acceptable' or qualified bank in the vicinity." 30 Tex. L.Rev. at 309. Thus, "[t]he height of the gradient boundary is determined by the bank of the river, not by the water in the river." Id. at 310. The boundary was established in obedience to the Court's conclusion that the bank of the Red River, and not the river itself, was the boundary provided by treaty, and its holding that

the bank intended by the treaty provision is the water-washed and relatively permanent elevation or acclivity at the outer line of the river bed which separates the bed from the adjacent upland, whether valley or hill, and serves to confine the waters within the bed and to preserve the course of the river, and that the boundary intended is on and along the bank at the average or mean level attained by the waters in the periods when they reach and wash the bank without overflowing it. When we speak of the bed, we include all of the area which is kept practically bare of vegetation by the wash of the waters of the river from year to year in their onward course, although parts of it are left dry for months at a time; and we exclude the lateral valleys, which have the characteristics of relatively fast land, and usually are covered by upland grasses and vegetation, although temporarily overflowed in exceptional instances when the river is at flood.

260 U.S. at 631-32, 43 S.Ct. at 224-25. The "bank" referred to by the Court was later described as "a clearly defined water-worn bank, designated by witnesses and counsel as a cut bank." 260 U.S. at 634, 43 S.Ct. at 225-26.

In his article, Stiles explained that the expression "cut bank" was used in the opinion, in the decree of the Court, and in the report of the boundary commissioners, as a designation and not in any sense as a restrictive qualification of the bank intended as the...