Texas River Barges v. City of San Antonio

• Decision Date: 12 January 2000
• Docket Number: No. 04-98-00837-CV,04-98-00837-CV
• Citation: 21 S.W.3d 347
• Parties: (Tex.App.-San Antonio 2000) TEXAS RIVER BARGES, Appellant/Appellee v. THE CITY OF SAN ANTONIO, Appellee/Appellant
• Court: Texas Court of Appeals

Page 347

21 S.W.3d 347 (Tex.App.-San Antonio 2000)

TEXAS RIVER BARGES, Appellant/Appellee v. THE CITY OF SAN ANTONIO, Appellee/Appellant

No. 04-98-00837-CV

In the Fourth Court of Appeals San Antonio

January 12, 2000

Rehearing Overruled Feb. 16, 2000

From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 96-CI-13733 Honorable Andy Mireles, Judge Presiding

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Sitting: Phil Hardberger, Chief Justice, Tom Rickhoff, Justice, Alma L. Lopez, Justice

OPINION

Opinion by: Tom Rickhoff, Justice

In this appeal, we must decide whether the City of San Antonio (the City) has authority to regulate navigation on the San Antonio River (the River) and whether the City may be held liable in tort for interfering with a private entity's operation of a commercial barge service on the River. We conclude that the River is a navigable stream that may be used and enjoyed by the public, but that the City may regulate navigation on the River to prevent endangering the public and jeopardizing the River's distinctive and sedate character. We also conclude that the City is immune from the tort claims asserted in this suit.

Factual and Procedural Background

In 1995, the City and Yanaguana Cruises, Inc., entered into a contract that granted Yanaguana the exclusive right to operate dinner, tour, and taxi barges on an approximately 2.25 mile stretch of the River in downtown San Antonio. This stretch of the River varies in width from 15 to 70 feet, is bisected at points by bridge support columns, and at its narrowest points does not permit side-by-side passage of two barges. It is undisputed that the City owns the bed and banks of this stretch of the River. See Heard v. Town of Refugio, 129 Tex. 349, 360, 103 S.W.2d 728, 734 (1937); Anderson v. Polk, 117 Tex. 73, 297 S.W. 219 (1927). In exchange for the exclusive franchise, Yanaguana pays the City 49% of gross yearly receipts or a minimum of $1,000,000 each year. The contract recognized that the River "is defined as a navigable stream [and that] privately owned watercraft cannot be lawfully prohibited from traversing the waters," but provided that the City would attempt to prevent watercraft traffic conflicts in the interest of public safety.

In 1996, Texas River Barges (TRB) notified the City that it intended to operate a passenger barge service in the area of the River encompassed by the exclusive franchise contract. The City informed TRB that it would not be allowed to provide any service on the River that competed with the service provided by Yanaguana. Undaunted, TRB began operating a barge on the River. City officials arrived on the scene, boarded the barge, and moored the barge at a City marina. The City later asked TRB to remove the barge from the marina. When TRB failed to do so, the City removed the barge by crane and impounded it. TRB eventually reclaimed the barge.

Soon after its barge was impounded, TRB instituted this suit. While the suit was pending, the City enacted an ordinance providing that no boat or barge may be operated for commercial purposes on the River between certain points within the City without the City Council's approval. See San Antonio, Tx., Code 22-143 (1997) (hereafter "the Ordinance").

TRB's live pleading sought a declaratory judgment that the River is navigable under federal and state law, that TRB has a right to operate on the River, that section 22-143 of the City Code is void, and that the City's contract with Yanaguana violates the Texas Constitution's ban on monopolies. TRB also sought damages for tortious interference with prospective business relations and conversion. The City answered and counterclaimed for attorney's fees and costs pursuant to the Declaratory Judgment Act.

The City removed the suit to federal court and obtained a summary judgment that the River is not navigable under federal law. The federal court remanded the other claims back to state court.

In state court, TRB moved for a partial summary judgment declaring that the River is either navigable in fact or rendered navigable by statute. The City sought summary judgment on the following grounds: the River is not navigable; regardless of whether the River is navigable, the City is empowered to regulate traffic on it; section 22-143 of the City Code is valid; the Yanaguana contract does not create an unconstitutional monopoly; the City is immune from liability for the intentional torts of conversion and interference with prospective business relations; and there was no evidence to support essential elements of TRB's claims.

The trial court granted TRB's motion for partial summary judgment, concluding that the River is rendered navigable by statute. But the court denied all other relief requested by TRB and granted the City's motion for summary judgment. The court denied both parties' requests for attorney's fees and costs.

Standard of Review

We review a summary judgment de novo. See Sasser v. Dantex Oil & Gas , Inc., 906 S.W.2d 599, 602 (Tex. App.--San Antonio 1995, writ denied). Under Rule 166a(c), summary judgment is proper when the summary judgment record establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law on a ground set forth in the motion. See Tex. R. Civ. P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). The evidence must be viewed in the light most favorable to the nonmoving party and all contrary evidence and inferences must be disregarded. See Nixon, 690 S.W.2d at 548-49.

Navigability

As noted above, the City's contract with Yanaguana expressly recognizes that the River "is defined as a navigable stream [and] that privately owned watercraft cannot be lawfully prohibited from traversing" it. Nevertheless, the City argued in the trial court that the River is not navigable.

Navigable streams are held in trust for the public to use for navigation, fishing, and other lawful purposes. See Carrithers v. Terramar Beach Community Improvement Ass'n, 645 S.W.2d 772, 774 (Tex. 1983); Diversion Lake Club v. Heath, 126 Tex. 129, 138, 86 S.W.2d 441, 445 (1935). The public has a right to use navigable streams for commercial as well as recreational purposes. See, e.g., Orange Lumber Co. v. Thompson, 59 Tex. Civ. App. 562, 126 S.W. 604 (1910, no writ). By statute, "a stream which retains an average width of 30 feet from the mouth up" is a navigable stream. Tex. Nat. Res. Code Ann. 21.001(3) (Vernon 1978). The effect of this statute is to render all streams navigable in law that have an average width of 30 feet, regardless of the ownership of the beds of the streams and regardless of whether they are actually navigable. See Diversion Lake Club, 126 Tex. at 137, 139, 86 S.W.2d at 444, 446.

It is undisputed that the River retains an average width of at least 30 feet. Accordingly, the trial court was correct in ruling that the River is navigable in law, even though its natural and ordinary base flow within the corporate limits of San Antonio is insufficient to support navigation of any kind except during periods of extraordinary rainfall and its natural flow ceases altogether in some areas during periods of drought. See Heard, 129 Tex. at 353, 103 S.W.2d at 730 (holding that a river having well-defined bed and banks and a normal flow varying from ankle deep to two feet, but that ceases to flow and "stands in holes" during periods of prolonged drought was navigable under the statute).

TRB argues that because the River is navigable, it has a right to operate its barge service on the River. Accordingly, TRB sought a declaratory judgment to this effect, as well as a declaration that the Ordinance is void. The City sought summary judgment on these claims by arguing that it has the authority to regulate the River regardless of whether the River is navigable and that the Ordinance is therefore valid. We turn now to consider these competing arguments.

The City's Power to Regulate Navigation on the River

San Antonio is a home rule city. As such, it derives its powers not from the legislature, but from the Texas Constitution. See Tex. Const. art. XI, 5; Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998). A home rule city has all the powers of the state not inconsistent with the Texas Constitution, the general laws, or the city's charter. See Proctor, 972 S.W.2d at 733. The fact that the legislature has addressed a subject does not ordinarily prevent a home-rule city from regulating the same subject. See Dallas Merchant 's and Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 491 (Tex. 1993). If the legislature chooses to preempt a subject usually encompassed within the broad powers of a home-rule city, its intent to do so must appear with "unmistakable clarity." Proctor, 972 S.W.2d at 733.

TRB contends that the City has no power to regulate navigation on the River and that the Ordinance is therefore void for two reasons: 1) the legislature conferred the exclusive power to regulate navigation on the River to the San Antonio River Authority; and 2) the City's charter does not authorize the City to regulate the River.

I. The San Antonio River Authority

The Texas Constitution authorizes the legislature to pass laws related to the conservation and development of the State's natural resources, including "the navigation of its inland and coastal waters." Tex. Const. art. XVI, 59(a). Pursuant to this grant of authority, the legislature created the San Antonio River Authority (SARA), investing it with "all of the powers of the State of Texas under Article 16, Section 59, of the Constitution," to effectuate flood prevention, water and soil conservation, pollution control, and irrigation. Tex. Water Code Aux. Laws art. 8280-119, 3 (Vernon 1999) [Act of April 15, 1981, 67th Leg., R.S., ch. 60, 1981 Tex. Gen. Laws 123] (hereinafter SARA). An additional goal was to create a system of navigable canals...