State v. Brazos River Harbor Nav. Dist.

• Decision Date: 28 May 1992
• Docket Number: No. 13-91-279-CV,13-91-279-CV
• Parties: The STATE of Texas, the General Land Office of the State of Texas, and the School Land Board of the State of Texas, Appellants, v. BRAZOS RIVER HARBOR NAVIGATION DISTRICT, Appellee.
• Court: Texas Court of Appeals

Page 539

831 S.W.2d 539

The STATE of Texas, the General Land Office of the State of Texas, and the School Land Board of the State of Texas, Appellants, v. BRAZOS RIVER HARBOR NAVIGATION DISTRICT, Appellee.

No. 13-91-279-CV.

Court of Appeals of Texas Corpus Christi.

May 28, 1992.

Rehearing Overruled June 30, 1992.

Jonathan Steinberg, Asst. Atty. Gen., Energy Div., Dan Morales, Atty. Gen., Will Pryor, First Asst. Atty. Gen., Mary F. Keller, Executive Asst. Atty. Gen., Ed Salazar, Asst. Atty. Gen., Chief, Energy Div., Austin, for appellants.

Leland B. Kee, Kee, Patterson & Neal, Attorneys at Law, Angleton, for appellee.

Before NYE, C.J., and SEERDEN and BISSETT ¹, JJ.

OPINION

SEERDEN, Justice.

The State of Texas, the General Land Office, and the School Land Board (collectively the "State") appeal from a summary judgment rendered in favor of Brazos River Harbor Navigation District (Brazos) for title to certain property along the shoreline of the Gulf of Mexico. We reverse and remand.

In 1870, the State granted to the heirs of James P. Caldwell a patent (the Caldwell Patent) to approximately 2,125 acres of land in Brazoria County, Texas. By a 1982 deed from a successor-in-title to the Caldwell heirs, Brazos now holds title to these lands. Brazos brought the present suit after the State attempted to grant mineral leases on lands which Brazos alleges form a part of the property owned by Brazos along the shoreline by virtue of the Caldwell Patent. ² Brazos contends that the State's actions create a cloud on title and raise a question concerning the construction of the Caldwell Patent and the ownership of accretions to the shoreline.

In order to support its claim to property along the shoreline and accretions, Brazos argued not only rules of construction regarding the Caldwell Patent, but also theories of judicial admission and equitable estoppel. In 1973, the State, acting through the Parks and Wildlife Department and the County of Brazoria, filed a Petition in Condemnation against Brazos' predecessor-in-title, Freeport Sulphur Company (Freeport), to acquire portions of the land along the coast that is presently disputed. Specifically, the State alleged that 36.559 acres along the coast was a part of the Caldwell Patent. In 1974, the district court awarded the State the 36 acre portion in condemnation, with payment of compensation to Freeport and a reservation to Freeport of the mineral interest. Brazos contends that the State by its Petition in Condemnation has made a judicial admission that the disputed lands are a part of the Caldwell Patent.

In addition, in 1989, Brazos granted to the Texas Parks and Wildlife Department a Conservation Easement covering 1,065.54 acres of land out of the Caldwell Patent including the disputed coastal lands. The Department accepted the easement and signed it on behalf of the State. Brazos argues that the State's acceptance of the Conservation Easement equitably estops it from disputing the fee simple title of Brazos to these lands.

Both Brazos and the State brought motions for summary judgment. The trial court denied the State's motion for summary judgment, and granted Brazos' motion for declaratory summary judgment, ordering that the lands described in the Caldwell Patent extended to the shoreline of the Gulf of Mexico and as granted were riparian to the waters of the Gulf of Mexico, and that the accretions thereto are owned by Brazos. ³

By its third point of error, the State argues generally that the trial court erred in rendering summary judgment in favor of Brazos. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. In deciding whether there is a disputed material fact issue precluding a summary judgment, evidence favorable to the non-movant will be taken as true, every reasonable inference must be indulged in the non-movant's favor, and any doubts must be resolved in his favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

By its fourth point of error, the State argues specifically that the trial court erred by rendering summary judgment for Brazos that the Caldwell Patent granted land fronting on the shoreline of the Gulf of Mexico. The Caldwell Patent granted to the heirs of James T. Caldwell a half-league of land, described generally as, "In the County of Brazoria on the Gulf Coast between the Brazos and Bernard Rivers," and more specifically as, in pertinent part, "Beginning at a Cedar Post marked 'G.P.' on the East side and 'M' on the West side ... [with intermediate calls] ... to a post marked 'GM' on the West side and 'B' on the East side about 30 vs. from tide water. Thence 59 [degrees] West 4294 varas to the place of Beginning."

Generally, the construction of an unambiguous deed is a question of law for the court, based on the intent of the parties as expressed within the four corners of the instrument. Altman v. Blake, 712 S.W.2d 117, 118 (Tex.1986). Specifically, where the facts are undisputed concerning the location of a boundary call, it becomes a question of law for the courts to determine whether the boundary call is a meander line or a boundary line. Ulbricht v. Friedsam, 159 Tex. 607, 325 S.W.2d 669, 672 (1959); Strayhorn v. Jones, 300 S.W.2d 623 (1957).

It is an established rule that the footsteps of the surveyor shall, if possible, be followed in determining a boundary line. Howland v. Hough, 570 S.W.2d 876, 882 (Tex.1978). However, we recognize the impossibility of following the footsteps of the surveyor into a river or along the tide line of the seashore. As the San Antonio Court of Appeals noted in Moore v. Ashbrook, 197 S.W.2d 516 (Tex.Civ.App.--San Antonio 1946, writ ref'd), "[a] surveyor usually cannot go into a stream to make a corner, so he makes a corner on the bank in order to identify the place where he stopped--the rule being an exception to the one which requires following the footsteps of the surveyor." Id. at 517 (citing 7 Tex.Jur. Boundaries § 14 (1930)).

From this corner, the surveyor may run a meander line, a series of course and distance calls which follow the river or other natural object or monument as closely as is practically possible for purposes of calculating the amount of land conveyed. When a meander line is used, however, the natural object or monument (e.g., a river, the seashore, or an identifiable terrain feature) will control over the specific calls for course and distance. Howland, 570 S.W.2d at 882; State v. Arnim, 173 S.W.2d 503 (Tex.Civ.App.--San Antonio 1943, writ ref'd w.o.m.) (on rehearing). Thus, meander lines of surveys of land adjacent to or bounding upon a stream are not to be considered as boundaries, but they are to follow the general course of the stream, which in itself constitutes the real boundary. Stover v. Gilbert, 112 Tex. 429, 247 S.W. 841 (Comm'n App.1923, opinion adopted); see also Selkirk Island Corp. v. Standley, 683 S.W.2d 793, 795 (Tex.App.--Corpus Christi 1984, writ ref'd n.r.e.).

In the present case, if, as Brazos contends, the last call in the Caldwell Patent should be construed as a meander line along the shore of the Gulf, then the shore itself does form the true boundary. The State, however, contends that the last call is, as a matter of law, not a meander line but a boundary line cutting Brazos off from any claim to the shore or littoral rights. As there was no dispute concerning the actual location of the boundary call, it was a question of law for the trial court to determine whether the last boundary call in the Caldwell Patent was a meander line or a boundary line. Ulbricht, 325 S.W.2d at 672.

Where the natural object is clearly referred to in the patent or deed as a boundary of the land conveyed, specific course and distance calls will be construed to be a meander line. Thus, in other Texas cases of this type the grant introduces the meandering course and distance calls with a specific reference to a river or other natural object as the boundary. See Strayhorn, 300 S.W.2d at 631 ("following the meanderings of [the river]"); Stover, 247 S.W. at 843 ("[t]hence down the river the following courses and distances"); Selkirk Island Corp., 683 S.W.2d at 795 ("following the meander of the Westerly shore of the New dredged channel"); Allen v. Morales, 665 S.W.2d 851 (Tex.App.--Fort Worth 1984, no writ) ("[t]hence upstream along the right bank of the [river]"); Meyer v. Worden, 575 S.W.2d 366, 369 (Tex.Civ.App.--Waco 1978, writ ref'd n.r.e.) ("along a meander line of the West bank of the [river]"); see also State v. Atlantic Oil Producing Co., 110 S.W.2d 953, 957 (Tex.Civ.App.--Austin 1937, writ ref'd) (patent specified location of grant "on the north side of the [river]," together with numerous course and distance calls to run "with said river" and clearly following the course of the river.).

However, where the specific course and distance calls are not directly referable to a natural object boundary from the language of the deed or patent, the cases suggest that the specific calls are the true boundary line, notwithstanding their proximity to a natural object such as a river or lake. See Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226 (1961); Ulbricht v. Friedsam, 159 Tex. 607, 325 S.W.2d 669 (1959). The deed in Hejl specifically followed a creek bed to a particular point, and went from that point "thence South 38 East 560 vs. to the beginning" at another point in the creek bed around a bend in the creek. If drawn as a straight line, the last call would thus leave a strip of land between the call line and the creek outside of the grant.

In determining whether the last call should be followed as a straight boundary line or as a meander line along the creek, the Hejl Court reviewed prior Texas cases finding a meander line along the water, and concluded that:

In all of these Texas cases, the property lines were formed by course and distance...