Welder v. State

• Decision Date: 30 May 1917
• Docket Number: (No. 5677.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 196 S.W. 868
• Parties: WELDER et al. v. STATE.
• Court: Texas Court of Appeals

Page 868

196 S.W. 868

WELDER et al. v. STATE.

(No. 5677.)^*

Court of Civil Appeals of Texas. Austin.

May 30, 1917.

On Motion for Rehearing, June 27, 1917.

Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.

Suit by the State against John J. Welder and others. Judgment for plaintiff, and defendants appeal. Affirmed. On motion for rehearing. Motion overruled.

Batts & Brooks, of Austin, and Proctor, Vandenberge, Crain & Mitchell, of Victoria, for appellants. B. F. Looney, Atty. Gen., G. B. Smedley, Asst. Atty. Gen., and Elmer Yates, of Edinburg, for appellee.

Findings of Fact.

JENKINS, J.

The state of Texas sued the appellants in trespass to try title to recover 5,823 acres of land described by metes and bounds, and alleged to constitute the bed of Green Lake in Calhoun county, Tex. Two sets of field notes were introduced in evidence, one made in July, 1913, when the lake was dry, embracing 4,927 acres, in which the margin of the lake was run as called for in the field notes of the surrounding surveys; the other made by the same surveyor in November, 1913, when the lake was full, and which was run along the water's edge, and embraced 5,823 acres. The difference was occasioned by the erosion of the water on the northeast side of the lake.

The case was tried before the court without a jury, and the court gave judgment for the state upon the field notes of the survey made when the lake was dry. In other words, the state recovered all of the bed of the lake not included in the field notes of the surrounding surveys when run out according to their calls for course and distance. Green Lake is oval in form, and is about 3½ miles long by about 2 miles wide. It is entirely surrounded by patented surveys, as shown by the following sketch from the official map of Calhoun county: NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The court filed the following statement of facts:

"I. Green Lake, the subject of controversy in this case, is an inland fresh water lake, situated in Calhoun county, Tex., about 2½ miles from Guadalupe river, and is situated in the valley of the Guadalupe river, the eastern portion of said lake bordering upon the foothills which mark the beginning of the upland. The lake is shallow at the margin, gradually becoming deeper for a distance of a few hundred feet where it attains its maximum depth, the remainder of the bottom of the lake being practically level and the water being of an average depth at the ordinary water stage of about 4 feet. On occasions of any considerable overflow of the Guadalupe river (which occur not infrequently) the lake is filled by the flood waters of the river, and this is the main source of the renewal of its waters. During times of large overflows the whole valley of the river to the foothills, including the lake and all of the surrounding country, is submerged. The lake contains approximately 6,000 acres of land, and is about 13 miles in circumference.

"II. Green Lake has been used and is valuable principally as a watering place of stock belonging to the owners of the surrounding lands. However, fish in considerable quantities have been taken from it and sold, and boats have been operated upon it for the purpose of taking fish; and the lake is of some value as a fishing preserve.

"III. Considering not only the size of the lake and the depth of its water, but also the variableness of the depth of the water, the nature of the surrounding country, its frequent overflows, and all the circumstances of the case, it is not probable that it will ever be of any public value as a highway of commerce.

"IV. All of the lands surrounding the lake are now owned by the defendants, but were originally granted in small parcels to different persons and at different times, reference being here made to the title papers evidencing such grants, which were introduced in evidence in this case, for the description of the land granted and for such other facts with reference thereto as may be material.

"V. I find that each of the grants of land surrounding said lake contained the full number of acres called for in such grants without including therein any portion of the bed of said lake; and that to hold that such grants include the bed of the lake would have the effect of nearly doubling the quantity of land called for in the grants.

"VI. All the defendants except Winn T. Harvey, who has disclaimed, are claiming the title to the lands under the waters of said lake by virtue of the ownership of the grants surrounding it.

"I find that the survey made by Helmbeck in the year 1913, when the lake was dry, represents approximately the line to which the grants surrounding the lake extends when constructed according to their calls, and this line has been adopted as the true boundary line of those portions of the survey bordering upon the lake."

And at the request of appellee the court made the following additional findings of fact:

"I find that the land around Green Lake has always been, for the most part, grazing land, and has always been and is now thinly settled, and that there has been no trade in said vicinity sufficient to warrant any considerable use of Green Lake for commercial purposes other than fishing and other than the hauling of wood, as testified by the witness Henry Jordan. I find that in the year 1861 Henry Jordan built a sailboat 20 feet long with two masts and drawing 2 feet of water when carrying three cords of wood, and that he used the same for a considerable time in carrying firewood across the lake for a man named Fleming, who lived near the lake, and that during the same time the land was used by light skiffs and boats for hunting and fishing. I further find that from the year 1900 to the year 1912, the witness W. T. Harvey made a business of fishing on Green Lake and realized from $50 to $100 a month from the sale of fish that he caught in the lake; that in fishing he used a sailboat 20 feet long and a motorboat 18 feet long, both drawing from 18 to 24 inches of water; and that he had from 40 to 50 people fishing for him with seines on the lake at one time; that at said time the lake was almost dry and the fish, by reason of reduced area and depth of the water were concentrated and caught in greater quantities than at any other time; and that while Harvey had said boats on the lakes other persons had small sail and motor boats on the lake to the number shown by the statement of facts which they used for fishing. I find that in its ordinary condition Green Lake, having a depth of 4 feet over the greater part of the lake, is susceptible of use for fishing, pleasure, and commercial boats, provided the boats are of light draft."

The findings of fact are sustained by the evidence, and we adopt them as our own.

These surveys were originally owned by the parties to whom the certificates, by virtue of which said surveys were made, were issued or to their assignees, but at the time of the trial they were all owned by the appellants herein.

Opinion.

The issue in this case is not whether the state could grant title to land in the bed of a natural, permanent fresh water lake, but has it done so as to Green Lake? If so it is solely by reason of the fact that it has granted all of the land contiguous to and bordering upon said lake, and not by reason of any description in the grant which otherwise covers the bed of the lake. Neither is it a question of appurtenance, or riparian rights. If the appellants are the owners of the land covered by Green Lake, it is because such land has been granted to them, and not because it is appurtenant to land which they own. Land cannot be appurtenant to land. As to riparian rights, the judgment of the trial court expressly reserves such rights to appellants. The appellants plant them selves upon the doctrine of the common law —that a conveyance of land on a nonnavigable stream conveys title to the center of such stream, their contention being that the common law in this regard is modified by statute in this state only to the extent of declaring streams 30 feet wide or over to be navigable.

It is true that the common law as modified by our local conditions is in force in Texas. But the common law, as has been aptly said, is a system of principles, and not a collection of arbitrary rules. The common law claims to be the perfection of reason, and it is one of its maxims that where the reason ceases the law ceases; or, as applied to this country, it may be said that where the reason never existed the law never existed. The reason why no streams were classed as navigable in England, except those in which the tide ebbed and flowed, was that no others in that country were navigable in fact. But it is absurd to apply this test to such rivers as the Mississippi, the Missouri, and the Ohio.

Mr. Justice Brown, in Grigsby v. Reib, 105 Tex. 597, 153 S. W. 1124, L. R. A. 1915E, 1, Ann. Cas. 1915C, 1011, said:

"The effect of the act of 1840 was not to * * * put into effect the body of the common law, but to make effective the provisions of the common law so far as they are not inconsistent with the conditions * * * of our people."

Mr. Chief Justice Gaines, in Land Co. v. McClelland, 86 Tex. 185, 23 S. W. 576, 1100, 22 L. R. A. 105, declared that the common law as to inclosing lands was not applicable to conditions in this state. In Swayne v. Oil Co., 98 Tex. 605, 86 S. W. 742, 69 L. R. A. 986, 8 Ann. Cas. 1117, the same learned Judge, speaking for the court, said:

"So in other instances rules established in England were not regarded as of controlling authority in this state, for the reason that it was thought that the conditions here were so different from those existing in England that if the conditions in that country had been the same as in this, the ruling there would have been different."

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