State v. Grubstake Inv. Ass'n

• Decision Date: 22 June 1927
• Docket Number: (No. 4428.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 297 S.W. 202
• Parties: STATE et al. v. GRUBSTAKE INV. ASS'N et al.
• Court: Texas Supreme Court

Page 202

297 S.W. 202

STATE et al. v. GRUBSTAKE INV. ASS'N et al.

(No. 4428.)^*

Supreme Court of Texas.

June 22, 1927.

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

Suit by the State of Texas by the Attorney General against the Grubstake Investment Association and others, in which A. J. Coyle and the Coyle-Concord Oil Company became coplaintiffs. Judgment for plaintiffs was reversed by the Court of Civil Appeals (272 S. W. 527), and plaintiffs bring error. Judgment of Court of Civil Appeals reversed, and that of district court affirmed.

Claude Pollard, Atty. Gen., Dan Moody, former Atty. Gen., and R. J. Randolph, former Asst. Atty. Gen., and White, Wilcox & Taylor, and J. Harris Gardner, all of Austin, for plaintiffs in error.

Andrews, Streetman, Logue & Mobley, of Houston, amicus curiæ.

Gaines, Quin. Harley & Gaines, of San Antonio, and Dougherty, Dougherty & Tarlton, of Beeville, for defendants in error.

GREENWOOD, J.

The state of Texas, by the Attorney General, sued the Grubstake Investment Company and others to recover the title to, and possession of, a portion of the bed of the Frio river in the counties of McMullen and Live Oak. A. J. Coyle and the Coyle-Concord Oil Company, as holders of the state's permit to prospect for oil and gas in the portion of the river bed sued for, adopted the state's pleadings, becoming co-plaintiffs in the suit. The defendants pleaded a general denial and "not guilty," besides asking special relief.

The facts disclosed, without dispute, that the coplaintiffs of the state held a mineral permit from the state, and that the defendants owned the tracts of land adjacent to the portion of the river bed in controversy under grants from Coahuila and Texas issued in 1835. Each grant began at a designated corner on the right or left margin of the "Rio Frio," and from thence followed the river with different measurements along its meanders or currents, without crossing the river and without calling for the center of the stream.

It was the contention of defendants that they owned title under the Mexican grants to the middle thread of the Frio river, while the plaintiffs sought judgment against defendants on the ground that the Mexican grants included no portion of the river bed and hence embraced no part of the land sued for.

The district court rendered judgment for plaintiffs on the ground that:

"In 1835, when the lands bordering the portion of the Frio river in controversy were granted, the Frio was, under the laws in force in Mexico at that time a river; that its channel or bed was not included in such grants, but that the complete title thereto was reserved in the Mexican government; and that the title to such channel or bed, so reserved to the Mexican government, passed to the republic of Texas, and the state of Texas."

The honorable Court of Civil Appeals, under a carefully reasoned opinion of Chief Justice McClendon, reversed the judgment of the district court on the conclusion that a grant from Coahuila and Texas, in 1835, to land bordering on a river, invested the grantee, under the civil law then in force, with title to the river bed to the medial line of the stream. 272 S. W. 527.

It is manifest, as all parties agree, that there is but one question for decision on the writ of error we have granted for the review of the judgment of the Court of Civil Appeals. The question is whether a grant to land bordering on a river, made by the Mexican government in 1835, carried title to the medial line of the stream.

We concur in the opinion of the Court of Civil Appeals that the civil law in force in Mexico at the date of these grants made no distinction by reason of the lands granted bordering on a nonnavigable instead of a navigable river. We also agree with the conclusion of that court, in which counsel for all parties to this suit concur, that we should look to the Partidas for a correct statement of the law in order to reach a true determination of the extent of these grants. Sayles' Early Laws of Texas, § 4, p. 153.

Considering all the terms of the Partidas dealing with rivers, their beds, and their banks, we are constrained to conclude: First, that the owner of riparian land granted by Coahuila and Texas in 1835 became invested with no title to any portion of the river bed. Second, that while such owner acquired title to the river bank, yet such title was burdened with certain servitudes. Third, that the title to the river bed remained in the sovereign despite the riparian grant.

Looking directly to that part of the Partidas dealing specifically with titles to river beds, we find the following provisions in Law 31, tit. 28, Third Partida, viz.:

"When a river changes its course, to whom will belong the bed where it formerly ran? Rivers sometimes take new courses, abandoning their former beds and leaving them dry. And as disputes may arise about the right of property to the ground thus left, we say it will belong to the owners of the adjoining lands, in proportion to the extent of their estates upon the banks. And the owners of the lands through which the river makes its new bed, will lose the property in the soil it covers, which will now be of the same nature of the former bed, and will, like the river itself, vest in the public."

The express purpose of Law 31 is to make plain the ownership of river beds. It defines the status of the title, first, to the bed of the river with the waters flowing along it; second, to the bed after its abandonment by the waters of the river; and, third, to the bed along a new course carved out by the river. It vests title to the bed along which a river runs in the public. It provides that the adjoining owners will acquire title to ground left dry by a change in the river's course in proportion to their estates on the banks. Finally, it declares that the instant a river cuts a new bed through land owned by a person in fee simple, such person loses his title to so much of his land as is occupied by such new bed. None of these declarations is consistent with the claim that the owner of riparian land takes title to the center of the river.

Title to the river bed to the center of the stream cannot be in the riparian proprietor if it is in the public. If title to midstream vests under a grant to land bordering on a river, there is no occasion nor need to announce the riparian proprietor's ownership of that portion of the bed after the permanent diversion of the waters. Nor would the Partidas have been apt to have used the future tense with reference to acquisition of a title which had long before vested. Finally, it is utterly repellant to the idea of a riparian proprietor's ownership to the center thread of a river to provide that the owner of a fee-simple title will lose that title to the whole of his soil as soon as it is appropriated by a new river channel.

In contrast to the denial in Law 31 of the title of the adjoining proprietor to any part of the bed occupied by the river is the affirmation in the next succeeding Law 32 of such proprietor's title to such portion of his lands as may be temporarily inundated with river water. Law 32 reads:

"Lands are sometimes covered by water, by the inundation of rivers, and remain so covered for many days; and the owner, during such time, loses the possession of them, he nevertheless preserves his right to the property, for as soon as the waters retire to their former channel and leave the lands uncovered, he will enjoy them as before."

It was because the law worked a divestiture of even a fee title through changes in the course of a river that Law 32 decreed that no right to property be lost by temporary inundations from a river.

The above interpretation of Law 31 is strengthened by the declaration in Law 6, tit. 28, Third Partida, that "rivers, ports, and public roads belong to all men in common." The qualification of this declaration by the statement that the portion of the river which constitutes its banks is subject to the dominion and proprietorship of the adjoining owner, burdened with certain specified servitudes, makes clearer, we think, the denial that the riparian proprietor's title extends beyond the banks so as to take in any part of the river bed. The exact language of Law 6 on this point is:

"And though the dominion or property of the banks of rivers belongs to the owner of the adjoining estate, nevertheless, every man may make use of them, to fasten his vessel to the trees that grow there, or to refit his vessel, or to put his sails or merchandise there. So fishermen may put and expose their fish for sale there, and dry their nets, or make use of the banks for all other like purposes, which appertain to the art of trade, by which they live."

The Court of Civil Appeals was of the opinion that Law 27, tit. 28, Third Partida, was inconsistent with the view that the title of the riparian proprietor extended no further than the border of the stream. The opinion of that court was that Law 27 contained directions giving effect to the riparian proprietor's pre-existing title.

Law 27 provides:

"How Islands Formed by Rivers are to be Divided. — Islands sometime rise in rivers, and men dispute about the right of property in them. We therefore say that, if the island rise in the middle of the river, the owners of the estates, on the opposite banks, ought to divide it in the middle, each one taking as much of that half towards his estate, as equals the extent of his lands upon the bank. But if it rise entirely in one-half of the river, towards one side, it ought to be divided as is above said, by the owners of the adjacent lands on that side. But if it does not rise entirely in one-half of the river and towards one of its shores, nor in the middle, but so that the greatest part of it be rather on one side than the other, then a cord must be taken and measured out, as long as the river is wide, and after having measured it, of the same length with the...