John G. & Marie Stella Kenedy Memorial Foundation v. Dewhurst

The JOHN G. AND MARIE STELLA

KENEDY MEMORIAL FOUNDA Corpus TION and Christi Diocese Church, the Roman Catholic Petition ers,

v. DEWHURST, David Commissioner of Office, the General Land and The Texas, Respondents. State of No. 99-0667. Supreme Court of Texas.

Argued April Aug. Decided Rehearing Denied Dec.

269 Ramirez, Gary W. E. Roberta Nye, Paul Hoblit, Dohse, Gonzales & Cor- S. Chavez Ratliff, Akin Christi; H. Shannon pus Feld, Austin; Hauer & Gump Strauss Forestier, Knisley, Thomas J. Marc O. Houston; Lochridge Kilgore, <& McGinnis Leshin, Law Kleburg Richard L. Hatchell, Antonio; Firm, A. and Mike San Hatchell, P.C., Tyler, for Petitioner. McKetta, III, Vaughan, Ben F. J. John Cabaniss, Allen, III, Kathryn Boyce E. C. McFarland, Dougherty B. John Graves Austin; and John Moody, & Cor- Hearon Tex- of the State of nyn, Attorney General Austin, as, Respondent. opinion of delivered the

Justice HECHT Court, in which Chief Justice OWEN, PHILLIPS, Justice Justice JEFFERSON, O’NEILL, Justice joined. RODRIGUEZ Justice opinion in this case issuing After 2000,1 petition- granted we December and entertained rehearing2 motion for ers’ 1, 2001). (March 2000). (Dec. Sup.Ct. 44 Tex. J. Sup.Ct. J. Tex. argument which, oral a second time.3 jointly now own as property We shown opinion judgment withdraw our earlier maps, the appended comprises tracts two following and issue the opinion lying just roughly of Padre west Island the Court. halfway Corpus between Christi and Port tract, Isabel. One called La or Barreta The private State and a landowner Barreta”, “Big conveyed the was originally dispute the location of the shoreline bound by King Spain IV of in and Charles 1804 ary of two early nineteenth century land 1809 to Jose Balli Lieutenant Francisco grants, one by Spain and the by other (who, aside, as an nephew historical was a State,4, In Luttes v. Mexico. we deter Balli, of Padre grantee Nicolas the Pa- of mined that the of two sovereigns law those Island). tract, dre The other Las called governing such grants was a shoreline Motas de la Barreta or the “Little Barre- is to be found daily where the mean ta”, adjacent Big is the Barreta to is, high water average level—that of originally by north and conveyed was daily highest water levels—reaches the Tamaulipas Mexican State to 1834 mainland. Now we are asked to decide Leonardo The 1804 grant Salinas. was whether and how the civil law determined lost, but a patent later the State in Luttes applies present shoreline confirming, conveyance Texas de- boundary dispute. The lower courts Big scribed the Barreta’s eastern bound- agreed with the State shoreline ary in the same words used to describe should be located without reference to boundary Little eastern in the Barreta’s daily high water levels because of grant Laguna waters of the —“the problems measuring those levels in State, course, Madre”.6 The owns the Laguna Madre near land at issue submerged land and the shore between and instead placed as far roughly inland as property Foundation’s and Padre Island. storms, water ever reaches in ordinary The dispute Foundation and the State on the based historical record.5 We dis boundary along location of the shoreline and agree hold instead that the civil law as nine edge miles of the eastern of the Foun- determined in applies here and re Locating boundary property. dation’s quires that the boundary shoreline this by is made difficult the nature of the sea- case, like all governed others civil part Lagu- water inundation of this daily be set at measured mean na parties’ respective posi- Madre. The water levels. We therefore reverse the starkly. tions conflict The Foundation judgment appeals court and re claims that the is the bank west mand the case court trial for rendi of the Intracoastal where water Waterway, of judgment tion in accordance with this always present has been since it opinion. dredged in The State claims I six west boundary is about miles to the The at a a slight John G. and Marie Stella bluff line marked rise Kenedy changes vege- elevation in terrain Memorial Foundation and the and Corpus tation, present Diocese of Roman is most Christi Catholic where water Foundation”) (collectively, days. Church “the once or for a few What year twice a (Tex.Civ. Id. at 456. Spohn, 6.See State 83 S.W. v. d). App.-Austin writ ref (1958). 4. 159 Tex. 324 S.W.2d 5. 994 S.W.2d 285. shallow, no usually deeper a controversy sporadic;

has brought present inches; occur- infrequent, in conditions a few change head local than is Madre, weeks, which has remained or months ring days, several vicinity hundred the same for two depending on the area. The rest of year, importance years, rather the increased dry, but boggy, time area barren production the area. The gas mud-flat, of oil and vegetation except devoid of 35,000 disputed area totals about acres. the mud- leathery perimeter algae. flats, gets ever which is far as water “Mother translated storms, ordinary a “bluff’ marked more Lagoon”, prescribed whose waters were of a less a small distinct rise foot Spain disputed Mexico to mark the change and a or more in elevation distinct estuary a west boundary, is narrow the ground vegetation and conditions. extending side of Padre Island some miles from Christi to Port Isabel. Corpus offered, The State and the lower courts of Laguna open The Madre is to the Gulf on, the regarding relied historical evidence at both ends but sheltered from Mexico and Big treatment of the Barreta Little along Padre length by the Gulf its Island. survey An 1809 grants. Barreta areas, adjacent In the many including by Margil Big Barreta Antonio Cano property, slightly Foundation’s is above boundary approximate- showed an eastern The wa- presence depth sea level. and of ly at the bluff line the State now same ter in of Laguna gov- most the Madre is boundary argues should mark the eastern by erned not astronomic tidal forces from property. the Foundation’s Grantee of insulated, by which it is like those exerted immediately convey- Balli for petitioned sun, and by meteorological moon of area of the bluff ance an elevated east open, forces to which it remains like the line that inundated and was was seldom wind In pressure. and barometric air area, now grazing. suitable for This called much Laguna including Rincon, Mesquite was rather like dispute, area in variations water levels nearly Madre island and minuscule, daily due to tidal forces are area now in by dispute. surrounded entirely by masked almost variations Because it could often be reached by atmospheric caused forces. The water Big narrow from the Barreta isthmus daily, does not advance and as one subside flats, through the mud it was useless facing open thinks of a shore sea. The granted therefore anyone else was actually uphill wind can blow water so visualization, for we refer (Again, Balli. it is at deeper sometimes elevations appended maps.) the reader places, than at At the Laguna lower ones. petition, which was survey Balli’s constantly Madre is inundated with seawa- indicate —we will discuss this granted, may deep, ter for deep enough several feet in due that Balli did not course—either place, waves and boats. One such “the think or was at least unsure that Hole”, is near the northeast corner of grant conveyed anything east of bluff another, property; Foundation’s “the line, he measur- or that cared most about Hook”, corner the southeast for As however, ing grazing. what land suitable property. places, At other in- Barreta, survey the Little an 1834 for area cluding east the Foundation’s triangle Domingo la Fuente omitted it is de property, impor- inundation is—and of land on southeast corner tant these character- precise to understand is, into the rectangular tract which extended regular, periodic istics— recurrent, Madre and was unsuitable continually opposed sense of grazing, and added to the northeast corner firmed Humble Refining Oil & Co. v. a triangle of land of approximately the Sun Regarding Oil Co.7 the location of the inundated, same size that shoreline, was not so that the Fifth acknowledged Circuit grantee Salinas would have the full that it was required to apply Texas courts’ grazing amount of land that he had re- understanding of civil which it be quested. survey Another Big Bar- mistakenly, as it turned out sever lieved— reta in 1882 and the Little Barreta in years 1879 al later when we decided the mat Cocke, by J.J. survey Big ter —to be that the highest shoreline is the Barreta around 1907 F.M. Maddox—all level reached the water in winter. done when grazing was all that mattered— we held Luttes v. State that a civil never included area east of the bluff law shoreline is the mean daily higher high line in the property, level, landowners’ and the water not the .highest water level.8 owners at those times do not appear to We will have much say more to about both objected. have cases, exact never these but for now it is important appears to have been at issue. merely to their place note in the sequence of events leading up present litiga The State also offered evidence that the tion. predecessors Foundation’s in interest affir- matively treated the bluff line as A the mean daily higher high tide —which boundary of property their until the mid- the parties agree in synony- this case is twentieth century, and that the Founda- mous with mean daily higher high water— tion did not render the mud flats for ad is calculated averaging highest the ele- valorem taxation until 1987. The trial vations reached water each day over a court excluded this evidence on theory the tidal epoch years. course, of 18.6 Of as we that later owners’ Luttes, actions were recognized irrelevant in water level data is in determining original the intent of the coast, not available at all locations on the sovereigns expressed in grants. the and where it is available may only cover Foundation contends that part the evidence lengthy of the epochal cycle. But only shows predecessors that its in inter- averages may nevertheless be obtained mostly est cared about land extrapolation available, usable for from data that is grazing while maintaining known, their claim to adjusting for cyclical variations. the waters of Laguna Madre. At times on the Texas coast there are two daily high daily tides and two low tides. 1949, Co., Sun Oil to whom the State Mean higher high average tide is an of had leased the minerals in part of the now of the daily levels. Mean area, disputed sued the Foundations’ pre- high tide is an average of both high levels. in decessors interest and Humble Oil <& This distinction is immaterial in areas of Co., Refining to they whom had leased the the Laguna Madre where tidal influences area, minerals the same to determine daily fluctuations water levels are whose lease was valid. position Humble’s quite Thus, ordinarily small. purposes was not that mud originally flats had case, daily of this higher high water is conveyed landowners, been but that indistinguishable daily high from water. they had since accreted to the mainland. rejected 1995, The federal district court Hum- Prior to surveying regulations pro- contention, ble’s and the Fifth af- mulgated by Circuit the General Land Office (5th Cir.), 500, reh’g, 7. 190 F.2d (1958). 191 F.2d 8. 159 Tex. 324 S.W.2d 167 (1951), denied, cert. 342 U.S. (1952). S.Ct. 96 L.Ed. 687 Flick, daily the actual mean determine to be deter- called for coastal shorelines adjacent property. its high level water high reference to mean water mined with gauges from several tidal levels, Using data opinion consistent with our a mean he calculated Nevertheless, the Com- Luttes.9 18.6- adjusted it for standard and then Land Office hired missioner General calculations, epoch. By Flick’s year tidal survey bound- Darrell Shine eastern adjacent daily water level the mean ary based on property of the Foundation’s between 0.60 property Foundation’s conditions, water levels. Shine ground the NGVD. foot above 0.75 using had never been an advocate of high water levels to locate the shoreline trial, Flick’s “si- challenged At the State prescribed by and he did not use methodology for comparison” multaneous boundary that method to locate gauges, comparing readings tidal Instead, Shine lo- property. Foundation’s on the position was focus State’s boundary where he found the cated the find feasibility using levels change terrain to elevation and condi- in this La- boundary shoreline area survey completed, tion. After the that he had Madre. Shine testified guna changed surveying Commissioner state boundary of the Founda- determined regulations to allow shoreline boundaries on his observation property tions’s based placed vegetation to be lines rather than the terrain and on the histor- changes water levels.10 This liti- bluff ical conceded that record. He gation began time. about the same placed line he was not where on a “regularly covered and uncovered dai- survey

The Foundation has on a relied ly Ma- basis waters begun in 1984 Matt and Bill Claunch Indeed, prin- of dre.” another the State’s They high Lothrop. used water measure- reaches cipal testified that water witnesses ments, but of picking particular instead no than or the bluff fine more once twice data, the they level shown which few year days. then for a hours and might the contest feared State later But uncontroverted evi- there also accuracy as to opposed methodology, the bluff that some areas between dence necessitating thereby expensive another inun- Waterway and were the Intracoastal survey, they level than higher used a year. forty percent much dated as as could prove. State ever The level, course, of for the better jury found Claunch/Loth- They surveyed State. area on the daily higher at or rop line is above mean assumption high that the mean water level tide, it is. Yet high concedes State was one foot above the National Geodetic to question answer whether (NGVD). Vertical Datum of 1929 All of higher tide could be with determined the area on the east side of the Founda- accuracy in area of the reasonable property, upland jury tion’s “no”. Laguna answered Waterway, survey jury west bank the Intracoastal also found that the Shine undisputedly boundary above that After this accurately level. marked commenced, the and failed to find litigation property Foundation com- Foundation’s Claunch/Lothrop so. Af- line did oceanologist, Dr. Reinhard missioned 3320, 5, 1995) (May Reg. Reg. (May 10. 20 Tex. 3320-3321 20 Tex. 3320-3321 1995) (proposing to amendment to 31 Tex. Admin. Code Tex. (proposing amendment Admin. 13, 1995) § 7.2); (June 7.2); (June 13, 1995) (adopting id. id. § at 4349 Code amendment). amendment). proposed (adopting proposed verdict, ter the the trial court issued parties’ arguments two application about its opinions explaining that while he had come their dispute.

to believe that the Foundation’s claims Humble, precluded

were though even A he had denied the State’s motion for sum- J.W. Luttes successfully peti- mary judgment urging preclusion, he tioned the Legislature to him to allow sue judgment would render on the verdict for 3,400 the State to determine title to some the State. acres of mud flats Madre on The court of appeals affirmed.11 In es- the east property side his in Cameron sence, the court concluded that Luttes does County,13 forty about miles south of the not preclude a determination of shoreline property Foundation’s the present boundaries without reference to water lev- predecessor’s case.14 His original 1829 els, evidence, and that there was historic grant, Vista, known as Potrero de Buena current, and support jury’s finding westerly was to the “shore” of the that the Shine line was accurate. Madre.15 Luttes contended that while the granted We the Foundation’s petition boundary originally shoreline had and for for review.12 In briefing, extensive many years beyond been a bluff which the parties have raised principal two issues: mud flats were then completely sub- here, whether and how Luttes applies merged, more recently the area to the east whether the Foundation’s claim preclud- had risen elevation because accretion ed Humble. We turn first to Luttes. deposits

due to of silt years, over the therefore he was entitled to the additional II property.16 The trial court made two im- The Foundation agree and the State determinations, portant one lawof and one that the result in the present depends case fact. The court concluded as a matter heavily on how we read our decision of law that under applicable civil law of they have accordingly focused Mexico, Luttes’s shoreline ended their They attentions on this vigor- issue. highest at the level water reached. ever ously disagree over whether Luttes was fact, The court found aas matter of after a decided, correctly whether it applies, and trial, bench proved that Luttes had not what it means. In fairness to all of these elevation in the area was due to arguments, explain we first our under- accretion. appeal, On complained standing of Luttes with a far excur- more that the trial court had misconstrued the sive recitation of its text than we would civil law and that its failure find ordinarily so that accre- use what we think is its import against great pre- clear will tion was the and emerge weight from the words themselves. Then we will examine the of the ponderance evidence.17 The court of 1999). 11. 994 S.W.2d (Tex.App.-Austin 285 Id. at 169. (Jan. 13, 2000). Sup.Ct.

12. 43 Tex. J. 301-302 Id. 357, (Tex.App.-Waco 13. 289 S.W.2d 357 357, 1956), remanded, (Tex.App.-Waco 17. 289 S.W.2d 374-375 rev’d and 159 Tex. 324 remand, 1956), remanded, (1958), S.W.2d 167 on 328 S.W.2d rev’d and 159 Tex. 1959, writ). (1958), remand, (Tex.App.-Waco no S.W.2d 167 328 S.W.2d 1959, writ). (Tex.App.-Waco no 14. See 159 Tex. 324 S.W.2d at 168. can over most be driven motor vehicles appeals affirmed.18 At the same difficulty. of it without remanded, reversed con- This Court and time, matter of the from the apart and in- court of had cluding appeals that the land many characteristics of algae, it has the law and that misconstrued civil deed water, by sea periodically covered is have its assess- may that error affected dampness, pres- perennial a including of of accretion.19 a ment the evidence crystals, sea ence numerous salt lengthy opinion, Justice St. John Garwood on, so while shells, of fish and remnants the began by describing Lagu- area of the always evidently be reached water can dispute. na Madre in by a foot or two below the sur- digging question, of the surface area face. acres, 3,400 including disputed has and join the flats the mainland Where basin, or, the characteristics of a more abrupt change in there is an islands a series of basins run- accurately, small the character of elevation and angle a ning point half a mile or roughly soil, including a and appearance northerly portion off of the base so sand, line of fol- beginning well-marked triangle southeasterly line This by grass vegetation. and lowed it. direction across middle of line, along far as lies the estab- so these are lower levels of basins between mainland, consistently referred lished 0.25 and 0.40 feet mean sea level above petitioners-plaintiff themselves tide”) (slightly “mean and below line”, evidently and as a or “bluff “bluff’ part acreage cover substantial of the have them to been considered claimed but petitioners-plaintiff; limit of Buena seaward undoubted the bulk the latter of the and whole early until up at least grant Vista 4,000-acre triangle above the 0.40 lies century.20 part present contour, rising foot generally toward the sides, which, in- including Regarding the main- the nature of the seawater along side, largely land it is 0.80 the Court between feet undation level, explained: and 1 foot above mean sea or

about 0.50 feet above the level of “mean court, by the trial and admit- found As high tide”. suit, is in parties ted there flats,] relatively vegetation no Madre little

[On there is sense, although are except which not have the true there algae, does frequent, appearance undoubtedly substantial vegetation normal levels irregular, forms sort of thin darkish mat over the variations water surface, up day longer period due to drying cracking during each are the influence of non-astronomieal forces frequent periods when the flats free conditions, in and combina- of water.... The soil of the flats is sometimes in evidently a muddier tion astronomical tide conditions ap- of darker and with of of Mexico. One the factors pearance and character than sand Gulf to, substantially contributing causing, which and of or comprises flats beaches general in the area across the water levels Padre Island several miles northerly in of winds presence At least suit is the Laguna to the eastward. when Fall water, heavy period early Spring, to fairly the area is free of Id. Mat 187, 191. 19. 159 Tex. 324 S.W.2d at hand,

although, ano, on the other there quier tiempo have el en del inuierno o been recent instances of sea water over- del verano.”23 running the flats midsummer. There surveying the in- After several different present, is also at and due in least some of terpretations passage this over the cen- forces, part to a progres- astronomical noting expert testimony turies and of- sive, years slow rise over of fered Luttes and the on its State (“mean”) general sea level at an average we meaning, reasoned that both the Parti- rate of about 0.02 feet per year.21 das and common sense contemplated was, where shoreline water on the aver- Against began: the Court backdrop, age: granted We error largely the writ of Now whether the language confínes hope of being able eliminate the shore to that area regularly covered confusion that appears to exist at the and uncovered “tide” in the astro- what, Bar and otherwise as to details permits nomical sense or it to be practical application of cases like “swell”, highest may wave or rise that present, is the correct definition of the occur at this or that one hour particular being obviously shore—the matter one or minute from whatever other force public of considerable importance. We conditions, than “in all phrase, storm accordingly shall question discuss that (en año), year” undoubtedly todo el first. question leaves a year to what We harbor no the Mexican doubt that meant. Does mean the last calendar law, be, (Spanish) may whatever it year expiring before litigation at effect the date of grant, what other effort to fix the boundary on rule, must applicable furnish the ground, year or some earlier with decision, such every is the effect of level, higher water or the kind of aver- observation or assumption has ever age single highest of annual over levels made been this Court the sub- years, several on which the trial court ... ject. case, alternatively relied the instant Turning body we of civil stated: it mean daily or does that where the shore], The basic definition of [of highest levels over a are period years course, is body that of the celebrated evidence, of record and in hun- these law Spanish known as Las Siete Parti- highest dreds or thousands of levels das, which was evidently written averaged, average should be and the century 13th and promulgated some taken grows “however most it later, three centuries of which the yeaP’1! all the portion critical Title Partida Pretermitting for the moment . (from4 Lopez Law the so-called edition interpretive matter of we authority, at published govern- time under think language partidas Salamanca) auspices mental reads as sug- itself permits, common sense follows: gests, line based on a long term aver- “ ** * aquel daily levels, e todo es llamado lugar age highest rather ribera de la mar se quanto theory cubre el than a line based on some of della, agua quanto sporadic mas crece en todo or highest occasional waters. Id. at 173. 23. Id. at 177. Id. at 175-176. the lower Indeed, disregarding year, us be consis- latest appears such to to arguments preceding of the levels of all the primary tent with one “highest” that the itself to the effect kind of the State if we are to use some And years. should, line should be one evidenced true “mean”, what evidently as we of the permanent markings on more or less in the words principle, in or is there ordinarily kind associated ground of the itself, an require such law the basic line upper the of a shore. Whatev- with highest an- single be that of average to in- aspect the the ground er the for of the several readings nual each case, is ordinarily a “shore line” stant one of question, rather than years and fre- regular characteristic of one readings days for all of daily highest sea, in turn quent coverage which averages are years? Both of such closely to an aver- much more related is only differ- readings. The highest water one, than to age daily highest waters highest read- lies in number of ence few, highest average merely a or averaged.24 ings readings. annual on a might be trivial That difference word, obviously “average”, While to the sea and astro- exposed open shore “mean”, not oc- equivalent, or its does the mean tidal forces. There cur, nomic suggested by language are both whole, vary much judge likely level is not as the trial water learned weekly, daily, are evidently recognized. particular readings No taken whether from which year being indicated as that to the monthly. But the difference due highest water “in all the so-called tide or can are taken readings over which interval taken, to be inference is year” in an area like be substantial prevailing a condition regularly days for dry Madre which is inundated a number of is what was years over at a days several the water at a time. For intended, suggests and this in turn on while spot may deep, foot given If, for period. mean taken over such a dry. To days place completely other single water for example, highest annual highest locate the shoreline years immediately five prior each of the level in this water area litigation to the were no instance reasoned, we would higher than one above mean sea foot present no the time was most of level, to be but were somehow shown all. there at long particular year three feet one line, we base the as did Thus should years, to the latest it would prior five levels, court, exceptional these few in- hardly appear within the reasonable of shore likely to have a line we are for- tendment of law that we should commonly ac- not shore which is years later fix the line at get the covered being regularly sense of cepted one more according three feet It is difficult and uncovered water. Conversely single if the year. remote writers of that the ancient to believe just preced- reading year highest which had mind a shore paHidas feet, those the trial were while ing two accepted commonly from the different years preceding of nine or for each more more thinks of shore thereof. One foot, idea were not one the latest over edge than in terms of water’s fix- require would seem unreasonable occasionally land which is at the terms of ing the line two-foot level Id. at 179. irregularly highest inundated.25 water levels is use of the (water)”. high standard of “mean tide But how to obtain the water level data delay year, While this involves a of a averaged to be when gauges, though tidal appears practical waiting it more than coast, along scattered the Texas were of- years get several an average order to apart? ten far way One would tobe ob- single highest of annual waters over the tain evidence from sources less rehable event, longer period. In either the local than gauges. tidal Another would be to because, tide gauge necessary as stat- abandon the high water level mea- ed, vary considerably water levels surement altogether simply rely on place place Laguna, particular- to eyewitness testimony to high establish wa- ly varying exposures on account of to Instead, ter rejected levels. We both.26 forces, whereas, meteorological we explained: (water)” adopting the “mean high tide standard, period gauge oper- of tide A third and much more reliable alter- may year.27 ation reduced one native, be however, following is that of system (water)”, high of “mean tide

which effect is average but the of average, Once we elect for an as the highest day water of each rather than practicalities require, seem to and the each If year. adopted, that rule is we texts of neither the Roman Law Civil have, by can installing gauge a tide for forbid, partidas appear nor the year little as one near the area in average sounder course is to take the question, highest the benefit of 365 read- daily gauge readings daily high- tide ings upon average, which to base an water, est tide or a wind-driven is, upon which to determine high “mean wave.28 (water)” tide point at that for that one year. This mean obviously level will rejected highest We water level rule vary corresponding less from a level for being announced in Humble as an incor- (or later) years earlier than would a interpretation rect of the civil and we single highest year annual level for one nothing found the law of other states to vary from respective highest annual reading contradict our of the Partidas. Indeed, years. levels of Finally, rejected argument other as before we stated, upon quite fixing daily the further and sim- at shore the level of mean ple step high of correction unfair against the nearest water was to the State and gauge importance actually tide which instead operation has been stressed ascertaining opposed for water levels as 19-year cycle, the full tidal the one- (water)” relying testimony litigation. adduced for year figure “mean high tide gauge the local will reflect with reason- Theoretically, high the rule of ably close exactness the “mean tide is less to the State its favorable (water)” 19-year cycle. for the whole than a rule capacity as landowner words, other far single highest so as most Texas on a instance of based concerned, way coast is reliable annual or a mean of several such average which to obtain sort of instances. But that is not reason 25. Id. at 180. Id. 181. added). (emphasis Id. Id. at 182 retreat our conclusion than not differently law but we did interpreting

our placed law the shoreline were that the civil only private if interests we would level, rejected the specifically and we Moreover, far from that are involved. we be locat- that the shoreline could rule of argument that in actual practice sure line, had which we a an “obvious” bluff is than ed at high mean water less favorable very really obvi- already remarked calling for a line that higher rule shore of ous. always vague be and difficult will on the finally until fixed

ascertainment to that may be the case as Whatever complicated after ground extended and An- by the governed shores part of our A result latter kind of litigation. tide, we high rule of mean glo-American abutting well be may give rule to say Span- it to that the do think correct (and landowner his mineral les- private (Mexican) law the shore is concept of ish see) advantage an in the over the State cov- regularly in which land the area is litigation, he has inevitable because a by uncovered the sea over ered and kind of longer and better access to the If a given it be long period. shown proof necessarily that will be involved shore, as upper level case that of demonstrating such and whether on by actually covered uncovered year such an occasion and such a such (or lower) sea, higher than the level years one or waves” “highest more high by determined higher tide as actually irregular reached or that appears and if it gauges, tide also may ground. line on the Another result shore, upper median line of discourage leasing be to mineral regularly and uncov- actually so covered by tidal areas from smaller the State ered, can be determined with reasonable operators who cannot run the risk of by exclusive re- accuracy otherwise than complicated boundary litigation addi- gauges, do not our sort to tide we explo- to other tion risks of mineral a case. intend to foreclose such opinion ration.29 case, quite plain instant to In the analysis Concluding our we regularly of the civil that the area suit is not us “that specifically held rule of applicable covered and uncovered (Spanish) determining long Mexican has not time. [in law waters and been for exists, highest merely that of there average say shoreline] is To because edge, line” or daily computed water over or corrected at the western a “bluff line”, cycle regular years.”30 marking tidal of 18.6 where “vegetation mis- appeals’ period court of at some Concerned waters undisclosed interpretation might evidently regularity, the civil law did reach with taken past its of the evi- line is the line of mean have influenced assessment the latter would, accretion, tide, case in our be much opinion, dence of we remanded the light than fix a fine of mean sufficiency for a factual review less reasonable rule of tide exclusive resort the announced law.31 gauges.32 rehearing, acknowledged we that a On we had any dispute de- over what daily high might level To eliminate rule for to be civil law gauges, termined otherwise than tidal determined Id. at 191. Id. at 186-187. 31. Id. at 192. Id. at 187. shorelines, determining the dissent articu- under the civil law. It is not limited rejected: lated what the Court had facts Mr. Luttes’s case. As the Court granted large- said: “We the writ of The shoreline should be determined ac- error ly in cording hope being to the civil law. This line can- able to eliminate not, circumstances, under appears be accu- the confusion that at the exist rately by what, determined the use of the tide Bar and otherwise as to details of gauge. According to provisions of practical application pres- to cases like the Partidas, Las Siete the seashore is the ent, is the correct definition of the shore— land is covered with water from being obviously the matter one of consider- Spanish time to time. The verb “cubrir” able public importance.”35 used, is which means “to cover”. The general Second: conditions seashore, then, portion is that is property Madre east of Luttes’s alternately covered uncovered the 1950’s are no different those east height the sea. The of the water on the now, of the Foundation’s property only gauge height is not the same as the forty away: miles seawater inundation is of the water that or up up rolls is blown shallow, regular, infrequent, and somewhat on the gauge might shore. The tide be mostly by and it is caused seasonal meteo- prima used to facie the location establish rological forces but nevertheless affected shoreline, always but should be slightly by daily astronomic forces. prima held to be facie evidence of the true line. Such evi- presumptive boundary original Third: The may destroyed by dence be the facts. grants civil law must be determined words, question other of the loca- law, subsequent surveys not or the tion of shoreline is one of fact and grantees conduct of the or their succes nothing one law. There is sors. dealing Partidas definition with tide gauge.... gauge The tide A boundary would Fourth: shoreline can wholly inaccurate to establish the true not be determined without water level measurements, seashore line.33 gauges even if no tidal historically placed adjacent

have been property, and even if measurements those It seems to be unassailable that the are made for no reason to determine a contemplated civil year. [“shore” mean] law over as short a time as a sea, actually the area reached An historic line not mark a civil bluff does though only single swell. If the tide boundary. law gauge accepted as the absolute deter- level relevant Fifth: locating minate the shore- placing highest measurement is not the level that line, then we are a rather establishing water ever but a mean level. reaches artificial line.34 Luttes, following propositions From calcu Sixth: The mean should be may fairly be said to be established: basis, if daily daily lated on a even to, does, atmo purports change First: Luttes water levels caused generally spheric very tidal forces small. determine shoreline boundaries J., (Smith, dissenting). Id. at 196-197 35.Id. at 175-176. J., (Smith, dissenting). Id. at 197 on the civil array of scholars formidable understanding This is our although in reference was parties’ arguments with it we turn to expert testi- by the kind of texts unaided ease. But present case. mony adduced now argument in the record and nothing B re- us that we should before us convinces arguments. consider first the State’s We in Luttes. determined the rule consider in this case contrary, the record On the 1 uncertainty apparent even more makes argues that Luttes miscon- The State Partidas; the State’s interpreting in strued the Partidas. interpret- Properly for a different arguments evidence ed, says, placed the civil law the State Foun- so are the persuasive, rule are levels highest water shorelines arguments for the dation’s evidence storms, ordinary not at mean reached in rule of Luttes. simply impossible It is tells us daily high water levels. The State eighteenth-century how know for certain proper that while construction “[t]he their applied Mexico would have Spain and Partidas was extensively by briefed [the ] determining law for thirteenth-century of the best parties some difficult context of shorelines state”, the in this lawyers practicing then Laguna Madre. subject was lim- evidentiary record on the civil interpretation of the The Court’s case, says, ited. In this the State workable, law Luttes is reasonable and retained some of the fore- parties determining rule provided a and it has Spanish on ancient law experts most forty years. than for more boundaries reports proper their own on the give subject is not recognize that the we While of the Partidas: Professor construction reconsideration, stare decisis beyond Litvinoff, of Louisiana State Uni- Saul land ti- protecting than in stronger never Luis versity, and Professor Jose Sober- virtue in tles, great there is as to which Fernandez, Na- anes of the Universidad very reluctant certainty.36 We would Mexico, for the cional Autonoma de determining rule seashore discard a State, Hans Baade and and Professors long that has served boundaries Margadant, Guillermo F. both Luttes, thereby the rule satisfactorily as Texas, University of for the Petitioners. and we expectations, long-settled upsetting evidence, argues, the State Based on this compelling far more not do so absent could reexamine Luttes n inter- Court should can be offered here. evidence than of the civillaw. pretation we reaffirm Accordingly, premises. accept We all of the State’s land in civil law boundaries shoreline in fact meaning of the civil law was with reference grants must be determined briefed in Luttes some extensively levels. daily high to measured Texas, lawyers in and we hasten the best subject given been to add that the has 2 thorough pres- treatment even more rule of Luttes argues that the The State lawyers every equals bit the ent case is claimed the shoreline only when counsel in Luttes. applies cases the Court both of accre- over time because truly to have moved of a has had benefit of views Wilkinson, Aviation, Inc., 70 234 S.W. Mustang 111 Tex. v. 36. Marmon (1921). (Tex.1968); v. Cross n. S.W.2d true, course, tion or reliction. It is Spain that The intent of granting and Mexico in Luttes himself land to predecessors made such a claim. It the Foundation’s true, however, must be not determined reference to those that the civil law deter- sovereigns’ policies and laws at the time of mined any way dependent course, grants.39 survey A may, of on the occurrence of accretion or reliction. intent,40 give grantor’s some indication of a What Luttes established was nothing less grant but when the calls for a natural applicable than “the rule of Mexican boundary here, monument as a “the wa- (Spanish) law” for — determining seashore ters of the Laguna Madre” —that monu- An interpretation boundaries.37 of the civ- ment controls over courses and distances held, il we was necessary to under- by survey.41 determined Generally, a sur- accretion, standing Luttes’s claim of veyor’s meander along lines a water line vice versa. The rule of Luttes applies do not boundary.42 mark the We have whenever a civil law shoreline determined-what Spain the intent of and in question. law, Mexico by interpreting their Partidas, Luttes. That their grantees 3 surveyors may have had a different be, been, understanding must and has con- argues The State next that the rule sidered in interpreting the civil law. In Luttes should not be of applied in this case words, interpretation other of control- because result contrary its to the sur ling eighteenth century civil law must take veys grants of the at the they time were into account how it was understood afterward, century made and for a and to time, those who applied including at the understanding uniform of the Founda the original grantees and surveyors predecessors tion’s in interest until at most property at issue here and those who suc- past reasons, few decades. For two ceeded them. But having determined we do not agree. was, what the applicable civil law as we Luttes, have in taking after all such consid- First, firmly it is established that account, erations into we cannot then re- rules for the grants, [t]he construction of application fuse its happens where there boundaries, and for ascertaining their be particular grantees evidence that which have from time to time been an- surveyors understanding had a different nounced the court and have been misunderstanding law. Their of the lines, acted on in establishing their are applicable grant- law cannot diminish the all for designed purpose carrying grants any ors’ more than it enlarge could out the intention grantor. of the When them. The civil law does not locate “the manifest, this intention is once made all place waters of the Madre” at one yield else must to and governed by be any contrary when there is no evidence it.38 smweyors understanding by owners and Luttes, 500, Frandolig, 159 Tex. 324 S.W.2d at 187. 40. See Fulton v. 63 Tex. 330 (1885). Robinson, 655, 38. Woods v. 58 Tex. 660-61 accord, (1883); Wheeler v. Stanolind Oil & 876, Hough, 41. See Howland v. 570 S.W.2d Co., 418, 149, Gas 151 Tex. 252 S.W.2d 152 (Tex.1978). 882 (1952). Gilbert, 429, Balli, Stover v. 112 Tex. 247 S.W. See State v. 144 Tex. (1944). (1923). S.W.2d his to confirm other than ing civil there is such place at another when land. ownership grazing of its law, we have inter- The civil evidence. it, without defines the monument

preted sum, bound- Foundation’s eastern understanding. regard private Madre”-— of the ary waters —“the law in effect when the civil is fixed Second, ambigu- the historical record is can neither made and original grants were of the different motives ous because parties’ reduced enlarged nor be v. noted in State actors over time. We at that time misunderstanding of that law Island, Balli, the title to Padre regarding course, not, a case This is or since. often made to determine surveys were to have aban- is claimed which an owner paid sovereign what dues were to challenger in which a property or doned rather grazing land was usable for what is a case possession; claims adverse pur- boundaries for title than to ascertain a natural monument construing a call for grant- the first poses.43 Unquestionably, The relevance original grant. in an land suitable for principal ees’ concern was is in by the State historic record offered petition That Balli’s grazing. explains law. determining applicable Once adjacent Big Bar- Rincon Mesquite however, determined, as it law has been adjustment to the reta and de la Fuente’s en- it can neither be has been Little Barreta. Both were survey of the diminished under- by private larged nor grazing possessed that the owners ensure standing. argues that because the land. The State 4 Mesquite wholly Rincon lies within in if Balli owned it dispute, area now rule deter- argues that the The State as the Foundation grants, virtue of his or sensi- practically in Luttes cannot mined it; claims, for petition he had no need to Laguna of the bly in the area applied in it must not have been included therefore property the Foundation’s Madre east of any area grants any more than other there. As of the conditions because of the bluff line. Balli’s east Whatever out, jury found that points State may petition— intent have his been could not be determined higher high tide Rincon acquire Mesquite whether to But it is accuracy there. with reasonable own, merely he or to confirm Luttes, did as well as opinion in plain from our in grazing land an area he ownership his fact in findings of from the trial court’s already grazing where was for owned in the court of extensively recited that case regard impossible cannot part only apprecia- most opinion,44that the appeals’ —we limiting Spanish grant. at the Laguna his intent as in the Madre ble difference or sovereign’s “always” in- water Nor can we determine the is that two locations the area east “completely” for the covered granting petition tent in Balli’s inundation east Rincon, while property45 Luttes’s Mesquite apart govern- thereafter, 195, Balli, century the area in suit over half a 190 S.W.2d at 43. State v. 144 Tex. La- always waters of the covered (“in 1829 the guna”); 289 S.W.2d at 373 cf 357, State, 289 S.W.2d 361-374 44. Luttes v. completely cov- Laguna Madre waters remanded, 1956), (Tex.App.-Waco rev’d controversy at the time of in ered the lands (1958), Tex. 324 S.W.2d grant in this original involved Mexican remand, (Tex.App.-Waco 328 S.W.2d 920 suit, at all completely covered at least if not 1959, writ). no times, part bed or was a such area Madre”). ("At shores of at 169 45. See 159 Tex. 324 S.W.2d and, indeed, well grant, the date of the may just in a as it does not property year, of the Foundation’s have reaches frequent complete. been less or less Oth- cli- accurately Corpus describe the Christi erwise, the nature of seawater inundation say mate to it was 109°F there on area in Luttes disputed appears in the September infrequency 2000. The essentially have been identical to inunda- in Lagu- inundation areas of the seawater disputed tion in the area here. Given that adjacent na like those Luttes’s and higher high water could be deter- properties, any makes the Foundation’s Luttes and that the evidence in in mined shoreline determination a difficult exercise. present case establishes that the condi- here, But the exercise is as essentially tions both cases are by basing made no easier same, as a matter of law mean surveyor’s subjective determination on can in the present be determined certainty of the terrain. For observations case. titles, rule, important in land it is to have a in interpreted here that the shoreline civil law argues State property provides east of the Foundation’s one. slight marked an obvious “bluff”—a daily high that mean argues State change vegeta-

rise in elevation—and a water level measurements should not be But made the tion and terrain. the State used to determine “shoreline” Luttes. The evi- argument identical adjacent Madre the Foundation’s is that water present dence case property because such measurements are reaches the bluff line at most once or twice after meaningless so difficult and The evidence in Luttes was com- year. Atmospheric Ad- the National Oceanic parable. days Evidence of the number any to make ministration abandoned effort flats, inundation of the mud even them. But the civil law rule determined line, comparable east of bluff also Luttes predated predeces- and its NOAA Daily forces both cases.46 astronomic sor, the States Coast Geodetic United in Madre stronger Laguna were no the the Survey, by century, more than a they than are near property near Luttes’s in Luttes in Survey was mentioned the There were no property. Foundation’s of passing. Application of the rule vicinity immediate gauges tidal policies or its dependent is not on NOAA just there are none property, Luttes’s as gauges, nearby or the installation of tidal property. near the Foundation’s Luttes)47 (as private whether one was that under condi- argues The State such governmental. tions, regular inundation is but shal- when argues impossibility The State that it makes no more infrequent, low and daily high water levels measuring presence of water sense to determine Madre demonstrated Laguna is measured on a using mean water levels and its efforts to do so the Foundation’s daily than it does to describe the basis in this it has taken position to the retreat by saying that Corpus climate of Christi level is not a applicable that the litigation 72°F. But daily temperature its mean is arbitrary one—one measured one but argument made this same State Luttes, Vertical above the Geodetic rejected it there. foot National expressly and we any than 1929—that is Datum of sense to determine a shore- It makes less conve- be measured and which level ever that could highest line based on the water Luttes, 324 S.W.2d at 173. 159 Tex. 289 S.W.2d at 367. 46. See Foundation) long be- (for property Foundation’s east of the intersects niently existed, Waterway. at least Waterway bank of the Intracoastal fore west grants undisputed original grants. that But the evidence is time of the can be measured daily wher- at “the boundary for a water levels called themselves Madre one chooses Laguna long Madre”. As ever waters of the so, can be that those measurements do at some level present water was sometimes mean, Foun- that the averaged to obtain property and Foundation’s between performed such mea- experts dation’s have Island, high wa- reach of mean Padre calculations, and that surements upland is on the ter level —which process that is mean level obtained civil law—was some- boundary line under more favorable to below—and therefore Foundation the Island. The where west of level it claims. The the Foundation —the where that say it cannot now concedes that daily high that mean jury’s failure to find it ago, but many decades boundary was rea- can be determined with water levels argument is not do so. The State’s need from the accuracy sonable does detract measure- daily high water level that levels, if fact that such even established used to locate viable ments cannot be inaccurate, are below level that would ab- of Padre Island boundary west on the boundary locate the Foundation’s Waterway, and Intracoastal sence of the Waterway. west bank of the Intracoastal incorrect. argument simply that explains The Foundation that has advo- that is daily high cated a mean water level several inches above the calculated level argues Finally, State and therefore favorable to the State in Luttes it- rehearing opinion Court’s accuracy over the disputes order to avoid might that circumstances recognized self made. of the measurements were shoreline Madre where exist not, explanation true or Whether this better be determined boundaries could the Foundation has the evidence is daily high water reference to mean without levels, daily high measured mean do not share this measurements. We level and the State concedes that those mea- All we said on reading opinion. of our place would at the surements rehearing was of the Intra- place same west bank —the that the given in a case it be shown [i]f Waterway. coastal shore, actually level of the as upper however, urges, The that but for State sea, by the covered and uncovered Intracoastal presence Water- (or lower) than the level of mean higher could way, the Foundation’s measurements by tide as determined higher high tide boundary locate an not be used to eastern that an appears if it also gauges, and Island, and west of Padre property to its shore, as actu- line of the upper median all the land east- it would own therefore uncovered, covered and ally regularly so simply This is to the Gulf of Mexico. ward accu- with reasonable can be determined dredging of incorrect. It is true that the resort by than exclusive racy otherwise Waterway in so that the Intracoastal opinion by we do not our gauges, to tide there, always did present water is such a case.48 intend to foreclose the Foun- boundary an create eastern not create doing we did But so But it also true that property. dation’s had determined to the rule we Laguna exception Madre inundated the seawater Id. at 192. concedes, that a line” that the under the civil law “median State Claunch/Loth- Indeed, relies line on which the Foundation rop be it would must determined. daily high water was at or above mean have made no sense for us to have held that levels. The evidence also establishes a civil must be deter- that law shoreline susceptible being de- those levels were by daily water level measurements mined Madre east of the termined in the rehearing and then stated on Thus, jury’s property. Foundation’s acceptable, other method was too. Had intent, boundary and the findings superfluous are that been our we would have with- using can located as a matter of law rejection of the line drawn our bluff line, Claunch/Lothrop Moreover, rule of Luttes at the boundary. in the two sentences a using same effect as just which has the immediately following the sentence high water line of one foot above daily quoted, rejection we reiterated our of a NGVD. locate a water-line bound- rule that would

ary rarely at a bluff water reached: Ill case, quite plain

In the it is instant regularly area in is not argues us suit that the Founda The State also covered and uncovered claims in this case are barred res tion’s long a time. estoppel waters and has not been for judicata and collateral —often exists, to, merely there say usefully respectively, To because as more referred edge, at the a “bluff line” or a preclusion— western claim and issue preclusion line”, “vegetation marking where the findings trial court’s based the federal in the period waters at some undisclosed in Humble holdings and the Fifth Circuit’s Co., evidently regularity, with past did reach decided Refining & Co. v. Sun Oil Oil Humble, line is line of mean already the latter as we have in 1951.50 tide, would, said, Oil, be much opinion, our mineral lessee Sun State’s to fix line of mean less reasonable than at issue part of the mud flats case, tide exclusive resort prede the Foundation’s present sued gauges.49 and their mineral les cessors interest see, Oil, to determine whose lease Humble boundary urges The bluff line the State permitted court was valid. district present indistinguishable case is litigation to intervene State urged the bluff line the land at competing owner to title to foreclosed argument and its is therefore issue,51 the Fifth Circuit reversed our decision in that case. presence of the State as ruling because C diversity jurisdiction party would defeat Fifth on which the case was based.52 rejected arguments the State’s Having could trial court “[t]he in this Circuit held regarding application of Luttes jurisdiction over case, acquire not and did not briefly turn to the Foundation’s we establishes, of Tex controversy between the State and position. The evidence Co., Refining Oil & 51. Sun Oil Co. v. Humble Id. 49. (S.D.Tex.1950). F.Supp. 88 658 Co., Refining v. Oil & 50. Sun Oil Co. Humble (S.D.Tex.1950), and F.Supp. 88 658 modified Humble, F.2d at 197-198. 52. 190 Refining Oil & Co. v. sub nom. Humble aff'd Co., (5th Cir.), reh’g Sun Oil 190 F.2d 191 denied, denied, (1951), cert. 705 342 191 F.2d 920, 367, (1952). 96 L.Ed. 687 U.S. 72 S.Ct. be re in elevation would the what increase and modified as and the defendants”53 upon accretion, turn re binding “so as not to be which in judgment quired con federal district court concept State”.54 of the understanding quired some valid, and Oil’s lease was cluded Sun Recogniz civillaw. under the of shoreline affirmed. the Fifth Circuit Texas law bound to follow ing that it was Fifth held that subject, Circuit at issue on the only Not were the leaseholds only case about one-fifth the shore extends “[b]y the federal the civil case, the dispute present land Tex tide winter.”57 highest line of the boundary was not actual location of the law shoreline interpreting as law civil Circuit, According to the Fifth litigated. at the time of boundaries was not settled land defendants conceded that the “[t]he was not authori litigation federal and was a of the bed of the controversy part years until six about tatively determined grants Madre when their were decided Lwttes.58 later when this Court issued, had but claimed its elevation Fifth inter rejected Lwttes Circuit’s by accretion.55 been increased” the civil law in Humble.59 pretation of for determination is question The crucial land, admittedly was whether which first consider whether We Ma- part original bed of present claims case Foundation’s appellants’ dre and outside of mainland Texas, judicata. res precluded are grants, part has become a of the main- judgment of a federal preclusive effect land under the doctrine of accretion. by federal law.60 Federal is determined ap- proving The burden of this was on judicata have been described res rules think, pellants; upon and we the undis- Miller, as Wright, Cooper Professors facts, they failed to meet this puted however, Generally, “intricate”.61 burden.56 ex Supreme Court has United States Thus, parties in the federal case did plained original a determination of the seek that when a court of provides rule [t]he Barreta and Big eastern boundaries of the a fi- jurisdiction has entered competent Barreta, Little and the trial and federal on the merits of a cause judgment nal adjudicate appellate courts did not the is- action, and their to the suit parties sue. bound “not privies are thereafter however, reasoned, The federal courts which was offered every matter much as this Court later reasoned the claim or to sustain or defeat received Lwttes, that a of whether determination demand, as to other admissible proper additional land had accreted to the offered might matter which have been part understanding ty necessitated Scharbauer, Eagle v. Properties, 60. Ltd. Id. at 197. (Tex.1990) ("federal law S.W.2d at Id. ju- the determination of whether res controls proceed- later state court dicata will bar a 55. Id. at 193. ing”). 56. Id. at 199. R. 61. 18 Wright, Miller, Charles Alan Arthur 57. Id. at 195. & Edward H. Cooper, Federal Practice (2d ed.2002). § at 58. 159 Tex. 324 S.W.2d 185-186. Procedure 59. Id.

288 fully fairly liti- second action were purpose.”62

for that (2) action; in the first those facts gated rule, liti Under this the Humble in judgment were essential gation preclude does not the Foundation’s (3) action; parties were first in case. The federal present claims in cast as adversaries the first action.65 court in Humble did not determine district just explained, For the reason we have boundary the eastern of the Foundation’s concerning facts Foundation’s eastern property and could not have done so. Not fully fairly litigated not were all of the area was involved in the case. Only a in the Humble case. fraction of the in over the parties’s dispute The Humble area on the east side of the Foundation’s cov validity competing mineral leases dispute property was issue. The central of the area part ered a small boundary in the was not over the civil law Oil, present case. dispute Sun there had original grants but over whether lessee, did not claim an interest State’s intervening years. accretion in the been along most of the land the east side of the property, Foundation’s and therefore could in land importance stability The State, litigate boundary. not that moves us to adhere to the rule titles said, party we have was not Humble require stated in Luttes does not we its have defeat because intervention would litigation preclusive effect give the Humble diversity jurisdiction on which the ac ed regarding in this case. The facts reason, predicated.63 tion was For this boundary were not deter Foundation’s litigation pre Humble cannot be held to mined in Humble and could not have been. present clude the claims made case. interpretation federal courts’ original grants is governing civil law estop- for whether collateral As us, rejected and we binding preclusive effect of the federal pel—the of law are not Luttes. Determinations present litigation case on of issues effect.66 generally given preclusive state governed by case—is federal or previously we have concluded both Furthermore, the Humble case give are the same.64 Under both federal and not serve the preclusive effect here would Texas law: principles preclusion serves.67 Shore, v. the United seeking Hosiery

A the bar of Parklane Co. party to assert judi- stated that res estoppel Supreme must States Court collateral establish (1) “the estoppel cata both serve sought litigated the facts to be and collateral Sunnen, 591, Servs., Sysco Trapnell, 65. Food Inc. v. 890 62. v. 333 U.S. Commissioner 597, 715, (1948) 796, (Tex.1994) (quot- (citing 898 v. 68 S.Ct. 92 L.Ed. 801 Allen S.W.2d Sac, (4 411, ing County 90, 94-95, v. 94 U.S. Cromwell McCurry, S.Ct. 449 U.S. 101 accord, 351, 352, Otto) (1876)); Quaker 24 L.Ed. 195 (1980); Hicks v. Oats 66 L.Ed.2d 308 94, 90, McCurry, v. 449 U.S. 101 S.Ct. Allen Co., 1158, (5th Cir.1981); Ea 662 F.2d 1166 411, (1980) ("Under judi- 66 308 res L.Ed.2d Scharbauer, gle Properties, 807 S.W.2d Ltd. v. cata, judgment on the merits of an final 714, (Tex.1990); Metropolitan v. 721 Tarter precludes privies parties action or their Ass'n, 926, (Tex. Sav. & Loan 744 S.W.2d relitigating that were or could issues 1988); Corp., Beech and Bonniwell v. Aircraft action.”); see Wright, have been raised in that 1984)). (Tex. 663 S.W.2d 61, 4406, supra § 140. note supra § Wright, See note 4425. 63. 190 F.2d at 197-198. Scharbauer, Eagle Properties, v. Ltd. Sysco, at 803. See 890 S.W.2d (Tex.1990). S.W.2d

289 Y litigants from protecting purpose dual an identical issue relitigating the burden of response word in Finally, we add a brief n withthe same his and of party privy to the dissent. economy by judicial preventing promoting is that argument principal The dissent’s to Even if we were litigation.”68 needless Laguna in the assumes that part to that Humble determined title hold measured, “that as- Madre can be in it could not dispute, of the area now longer viable because we is no sumption litigation over the remainder preclude that, as con- undisputed fact now have the area. tide, government, the cluded the federal Madre, Laguna in part at least conclude that the Humble We therefore trying to measured.”72 Without cannot be litigation of the title preclude case does not it, actually on what we put point too fine a present case. issues involved government federal know from the 1995, thirty-seven years after Luttes IY present after this shortly was decided and the National Oceanic litigation began, address is The last issue we must Administration, a bureau of Atmospheric to re whether the Foundation is entitled Commerce, issued Department the U.S. basis the attorney cover its fees. cooperation with developed a report recovery is the Foundation claims for such Office, party Land to Texas General Act, Judgments autho Declaratory which concluded, case, for which present rizes an award of reasonable and neces and not navigation of commercial purposes just sary attorney equitab fees when titles, regions land determining attorney fees to be le.69 We allowed Madre, the area ad- Laguna including against awarded the State in Texas Edu “should jacent property the Foundation’s v. involved Agency Leeper,70 cation which da- ... non-tidal for tidal be classified as enactments, and challenge legislative op- according computation purposes tum argues that also the Foundation we should Na- [the criteria established erational dispute award fees here. But the for tabulation Service] tional Ocean title, over not an enact present case is too forces atmospheric tide”73 because ment, and the Foundation’s claim for de region for levels in the affect water greatly claratory merely relief is incidental to tides to be measured. astronomic circumstances, In such title issues. changes in any not on report was based of attor Act does not authorize an award Madre —no one conditions Moreover, the ney against fees the State. changes have been contends that there Natural Code provisions of the Resources prop- Foundation’s region near the permit which the Foundation sue on what years hundred erty two —but for recov in a series of provide says in this case do not is “the latest report State tidal char- understand the efforts to NOS ery attorney fees.71 322, 645, §§ 33.171-.176. 58 71. See 68. U.S. 99 S.Ct. Tex. Res.Code Nat. (1979). L.Ed.2d 552 72. Post § 37.009. Civ. Prac. & Rem.Code Atmospheric Admin- Oceanic and Tex. 73. National istration, and Datums of Characteristics Tidal 1995). (July (Tex. 1994). Texas S.W.2d many years, Texas”.74 “tidal” as it did for or to call acteristics of in were them “non-tidal” as it its 1995 re- governing report criteria has in early port, high nineteenth cen- water levels can be measured provisions not just they as could be tury Spanish disputed and Mexican civil law but area Luttes, daily in and measure- policies. purpose recent NOS of the measured mean, get report averaged was not to fix land titles but to ments can be adjusted tabulations. that mean can be with actual and guide NOAA’s tide Yet argues report, extrapolated epoch that this written data over tidal of 18.6 dissent cooperation years. oceanologist in The Foundation’s did litigation began, after this using daily high different that and determined that mean parties, with one above the criteria than those which determine this water was 0.60 to 0.75 foot supersedes disputed NGVD over the area. There is purposes case and for different area, present regular disputed Luttes and the civil law. Had the flow of water open before the but not like an beach. Water flow is litigation report been concluded issued, report regular places peri- or had the been withdrawn both over different concluded, might litigation before this the dis- ods of time. NOAA the dissent “tidal”, consider flow their senting presumably Justices would favor not understandings do not fix the Foundation’s position. the Foundation’s The dissent’s early century boundary. that nineteenth The civil law does. The issue position is case, rhetoric, stripped obscuring Spanish and Mexican civil law and Texas movement of water along regular land the seashore fluctuate de- is whether the titles it a disputed over the area makes “shore” pending evolving on NOAA’s understand- original land ings region. meaning of tidal characteristics within the at the grants governing federal has de- and the civil law government “[t]he Because as in Luttes. That de- clared as a matter of law the tide time construed measured,”75 Luttes according pends cannot be to the on whether the conditions dissent, materially considered different regarding the civil law shorelines were case, to that from 1804 to those in this and the answer applied grants to these land 35,000 no, we have shifting passages 1995 and then as the extensive stopped, quoted from Luttes demonstrate. acres from the Foundation State. great respect power With for the using dai- argues The dissent agree we do not government, federal to mark the shoreline ly high water levels can agency’s understanding of nature junk simply in an area like this “is sci- history. alter But the of where ence.” determination a matter of Madre in to mark a shoreline is The conditions the shore- might place are science. The law region present involved case by water highest in line at the level reached region the same as those in the involved annually, example the court the Foundation has mea- Luttes. What the civil law did. has called Humble Oil concluded sured —what NOAA sometimes at might not—is the Or the law locate shorelines precisely “tide” and sometimes elevation, as the changes vegetation daily high water level fact, here. argues should be done says requires the civil law to be measured. State however, according eighteenth call such levels Whether NOAA chooses to 76. Post Id. at 53. at-. Post ex- grantee could either surveyor No neither but instead century civil law did daily high meaning of the sover- where mean or contract the pand marked shorelines upland. water intersected levels eign’s grant. of policy based on the civil law rule was studiously ignores Finally, the dissent served, “junk it science”.

the cultures not reach- that water fact: very important one years hundred later reject that rule two To as a line the State claims the bluff es un- thinks it was because this Court now a It year. at most once or twice boundary junk The dissent sound would be law. place of a shore as the is odd to think argues that Luttes was adopt ill-advised to never is. where water almost circumstances, all but single a rule for Luttes inter- rule; Luttes did not adopt a Spain that and Mexico had

preted the rule we explained, we have For the reasons that rule was well—or adopted. Whether ap- judgment of the court reverse grants irrelevant. The ill-considered is the case to the trial peals and remand and in Luttes are by governed this ease judgment in accor- court for rendition rule, was, law whatever it the civil opinion. dance with this it Luttes expressly determined what was. boundary suggests The dissent that the dissenting filed a Justice ENOCH high a mean wa- using line determined BAKER in which Justice opinion,

ter level one foot above the NGVD is joined. Justice HANKINSON boundary different from the be would using determined actual water mea- level dissenting Justice ENOCH filed a surements, simply but this is not true. BAKER and opinion, which Justice high is as Whether water as low joined. Justice HANKINSON seven inches or as as twelve inches v. Luttes decided as a matter of State1 NGVD, above the line is boundary Texas shorelines are measured law that exactly the same: west bank well, high tide. As the mean Waterway. Intracoastal The evidence Luttes answered is decidedly dif- question not, not, does need show where in this case-— question ferent from the boundary was before Intracoastal Wa- fact the mean whether as a matter of terway dredged. was can be measured. The higher high tide argues The dissent that historical evi- Luttes, but today misreads Court dence better shows the location of the Luttes’ question of law with this conflates line, though even it concedes I question respectfully of fact. dis- case’s surveys were not intended to establish sent. impor- boundaries. Historical evidence is case, that, in the tide Clearly aware tant in the civil trying to understand what measured, Court, ostensibly cannot be shoreline, law meant a but once that measuring high relying equates it interpreted, law has been cannot be water levels measuring daily tide with survey- defeated the views of individual so, by doing But the Court Laguna. ors and others. Luttes held that what strips Luttes any legitimate foundation. they grant- Spain and Mexico meant when measuring daily Luttes did not decide that daily high ed land to a shoreline was mean the same levels in the said, water That the historical rec- water level. levels, daily tide thing measuring particular longer ord in a case no matters. (Tex.1958). 1. 159 Tex. 324 S.W.2d 167 for the Foundation on line sur-

rather it assumed that those water levels dered Bill veyed by Lothrop All Matt Claunch and parties agree reflected tide. because that line is somewhere above requires computing levels Hardly jur- tide line. 18.6-year period. over an What the Court years length is the sound decision. One would ignores isprudentially 18.6 Thus, Luttes neces- pressed hard to find case Texas cycle.2 an entire tidal court being mea- which the awarded sarily requires jurisprudence the water levels here, party party on what the judgment And sured to be tidal levels. willing party proving to take absent the cannot be measured. something. to take at least was entitled fault line bridge The Court tries to this Furthermore, Claunch/Lothrop line the Luttes used in that the noting Court purport daily does not to locate the mean the when it concluded that word “water” level, water let alone the mean higher high La- higher high the mean tide line the Rather, a line tide it locates one foot line. could be determined. And because guna Da- above the National Geodetic Vertical conditions here and in Luttes Laguna’s (Datum Plane), which is a tum of 1929 same, essentially are the Court accord- adopted geo- fixed reference as a standard higher high tide ingly concludes that mean elevations determined detic datum for in this case as a matter can be determined leveling.3 bridge law. But the Court’s crumbles litigation and even parties a fact the assumed All the to this the absence of Court can mea- knows that no one deter- in Luttes —that the tide could be Court it Luttes assumed All that mine the mean tide line and use to locate parties sured. margin. west And some tidal movement could be measured. Madre’s course, scientific co- longer ignores is no while the Court this assumption Of nundrum, end, obviously it con- undisput- now have viable because we that, high water measurements cannot be ed fact concluded the federal cludes tide, legal evidentiary For with no or part at least used. government, instructs the trial court support, cannot be measured. the Court judgment to enter for the Foundation us- finding impossibility To avoid the Plane one foot line. ing plus the Datum tide, higher high mean the Court slides Luttes ignore the rec- really But the Court need asserting into that what formula to non-tidal apply ord and tidal water level could be meant proper 18.6-year cycle tidal data to determine against the measured years of have two hundred mean. But this case. We the water levels’ to determine margin Lagu- history about the west junk science. If one is not simply that is establishing tide, us. And guide na Madre to extrapolating then measuring the evidence is boundary using historical you have water measurement whatever by pre-Luttes case law. fully supported 18.6-year cycle simply pro- tidal over the Moreover, produced the State evidence produce a number. It doesn’t duces that the jury finding State’s Regardless, supporting tide. higher high mean for which was on boundary, based obviously problem proposed be- sees Court docu- evidence and historical judgment any physical on cause rather than render ments, with rea- margin marks the west line, judgment be ren- it directs Operational See Servs., U.S. & rehearing). Ctr. For Prods. (opinion Id. at 192 Glossary Dep’t Commerce, Tide and Current (1999). epoch, tidal 18.6-year to an I would correlated accuracy. Accordingly, sonable forces in the tidal appeals’ judgment court of all the astronomic affirm the which clear of the State. This intent is also cycle appear.6 favor “tide,” quot- definition of from the Court’s LUTTES I. THE PROBLEM WITH above, the predictable focuses on ed which Luttes, irre- insisting with problem on astro- and fall of the waters based rise facts, controls this case is spective of And it is clear from nomic factors. peg forces a round into that the Court States Su- reliance on United Court’s applies the civil law. square hole. in Borax Consoli- preme reasoning Court’s using law locates seashores And the civil Borax, dated v. Los Angeles.7 In Su- The Court as- tide. approved the expressly Court preme sumes, per- that Luttes when concludes methodology of the U.S. Coast Geo- merely high mits be measured (a today’s Na- Survey precursor detic tide, that a mean can be and not Atmospheric Adminis- tional Oceanic have for calculated. But the formula we NOAA) tration, calculating requires using mean the calculating this high tide.8 Thus, 18.6-year cycle. tidal it is the tide that water lev- Although acknowledging simply and not that must be measured strongly Madre are also Laguna els the water levels. forces such affected non-astronomical established, As Luttes grantors of when in Luttes weather, as wind and the Court civil-law littoral tracts used the word tide could still be clearly assumed that the “shore,” they intended that it be the area fact, so far In the Court went measured.9 the regularly covered uncovered that advancements science as to assume time, over a that the long period sea tide even easi- measuring would make the shoreline, level of the shore be the upper get to the answer er.10 But science didn’t and that the shoreline be located at the Since Luttes was de- expected. the Court higher high line of mean tide.4 select- cided, that the tide NOAA has concluded mean tide ing shoreline Lagu- in areas of the cannot be measured measurement, the Luttes Court explained “ along disputed including na its that regular predict- ‘tide’ means margin. And the Foundation offered (or rises) west perpendicular daily able rise Rather, (or falls) no otherwise. evidence fall as a result of waters NOAA, publish- report evidence is a forces, wit, gravitation- astronomical to 1995, analyzes ed in which (mostly al of the sun and moon pull concludes latter) tide characteristics and Madre’s That the upon earth.”5 Court accurately that the mean tide cannot be in Luttes intended the tide be measured is property.11 along disputed calculated specification clear from Court’s NOAA, acting forces According be other daily gauge tide measurements must 500, 500, Luttes, 324 S.W.2d at 192. 9. 159 Tex. 159 Tex. 324 S.W.2d 4. See 191-92. Id. 10. 5. Id. at 173. R. Hubbard & See 174, Stephen

6. Id. at Gill, K. James Dingle, Dept Gary Commerce, Tidal U.S. 23, (1935). L.Ed. 9 7. 296 U.S. 56 S.Ct. Laguna Madre, Characteristics and Datums (1995). Texas Id. at 56 S.Ct. 23. out that Luttes Pointing recognized Laguna, primarily the water meteo- This, influ- rological, strongly mask the astronomic tide. the water NOAA, forces, impossible makes it the Foundation according to enced nontidal gauge determine whether water level measure- concludes that tide measure- because, truly argument ments are tidal. That’s as ments will do. But this robs Luttes explains, underpinnings. NOAA it cannot tabulate tide Be- its scientific cause consistently water levels de- the water required levels because measure- meteorological 18.6-year are not ultimately rived from forces ments to reflect repeated. cycle, underlying astronomic mea- predictably tidal necessarily themselves must re- surements significance of this conclusion is Otherwise, highs. flect astronomic tidal that, daily in order to correlate water mea- 18.6-year meaningless. time frame is 18.6-year cycle tidal surements to the way, Put another if it is not the tide level, those mea- produce the measuring, factoring that mea- one is then to a compared long- surements must be 18.6-year cycle tidal surement over station, gauge term control where a tide higher produce cannot for a full operation has been continuous high tide. 18.6-year cycle. tidal NOAA cautions if comparison properly cannot be done concludes that the Cavalierly, the Court from the short- the measurements taken find that the mean jury’s failure to not tidal ones because gauge term are could determined is “su- line be will not similar to those measurements property’s bound- perfluous,” because the long-term the measurements from the ary a matter of law at can be located as therefore classified gauge. NOAA has line, in fact which Claunch/Lothrop the Laguna, particularly the the parts of spon- the Foundation line the area, disputed as nontidal.12 Claunch/Lothrop sored at trial. But the line is a line one foot above the simply undisputed The Court dismisses this evi- A the Datum Plane. line one foot above concluding determining that the dence Datum Plane does not accu- indisputably not daily high depen- water level is rately represent higher high the mean tide policies, post- dent on NOAA or its which the that Despite line. Court’s insistence land more than a centu- grants date the case, it Luttes controls the outcome of this ry. argument But the obfuscates Court’s disputed that the too must have concluded simply irrefutably the issue. NOAA be deter- property’s boundary could not along fact that the tide the states the higher the civil law’s mean using mined disputed boundary cannot be measured. tide line or even the mean some high what Luttes states precisely And tide is line, does not other water for the Court for requires the civil law to be measured the bound- actually use either line to locate determining shorelines. ary. Founda- apparently buys The Court the attention to divert attempts that conclusion The Court argument

tion’s NOAA’s reasoning by pointing disputed gap-filled in the from its the Madre Dr. expert, out that the Foundation’s area is nontidal is irrelevant because under Flick, measurements Luttes it is high evaluated water daily highest the water simply throughout Lagu- the at various locations averaged, regardless that is to be level were not cause, na. But Dr. Flick’s evaluations daily highest not the tide. the Id. at foot, because plus one line, Datum Plane at the Claunch/Lothrop the basis of requires. law the civil is not what And surveyed. already had been which require estab- And Luttes certainly doesn’t Claunch/Lothrop line was not based on can’t be at a line that lishing It tide. is mean of the True, jury says, the Court found. rely that the Foundation did telling Claunch/Lothrop line is found that anyone prove else to Dr. Flick or line of higher high tide the mean or above line, rely- of the mean tide actual location I know (although don’t Laguna Madre Claunch/Lothrop line. ing only on the line). how, this is no evidence of as there proof, failure in Undaunted the Foundation? help But how does Claunch/Lothrop concludes that the Court its is that proved Foundation All the Laguna’s margin west line must mark the by not measured boundary line was disputed because along property required by higher high tide mean of the at or conceded that that line is State has Luttes. There is no basis the civil law and Even daily high water levels. above mean decision or in fact for the Court’s law concession, that fact if the made that State boundary at property’s locate the missing proof does not establish —that Claunch/Lothrop line. boundary line suggested Foundation’s I suggests that erroneously The Court Every- high tide line. is the mean “position” Foundation’s accept would Foundation, one, it is including the knows that tide conclusion NOAA’s not. cannot Madre disputed area sure, maintains To be the Foundation suggestion That results be measured.13 that, reality and as- despite geophysical own being confused its from the Court suming Luttes doesn’t require tide to be “position” Foundation’s reasoning. The measure, boundary’s the line of any high level can be measured here, can be calculated higher high water mean, which water level produce at or Claunch/Lothrop and the line is Foundation, all that according to the Flick that he calculated that Dr. testified law re- I don’t. The civil buys. Court disputed for the mean water by the to be measured quires the shoreline not But Flick admitted that he did area. tide, any just not water higher high in methodology performing use NOAA’s Luttes doesn’t hold otherwise. level. calculation, in he a his and that fact used said, Further, answering the as I’ve used methodology he himself had never Texas shorelines of whether question Essentially, Dr. Flick used non- before. higher high by the mean are measured measurements, factored them over tidal fact, tide, question of not answer the does he 18.6-year cycle, tidal and declared tide in this higher high whether the may He have found had found the mean. just It not measured. is case can be number, clearly not the mean a but it fails, its “position” Foundation’s by the contemplated level any of failure, the Court That proof as well. Court Luttes. in Claunch/Lothrop I The ignores. don’t. Luttes, line, boundary line the is the According to the civil law which and which Court proffered Foundation proper- of Texas seashore the boundaries no mean of reflects higher high today imposes, ties are at the mean of the much for Luttes at all. So a line water level tide. Luttes does permit using S.W.3d at 284. 13. 90 Furthermore, this bound- grant, then how do we resolve

controlling this case. there a the Foundation offered no evi- is reason principles. to first ary dispute? We return higher high of mean tide line. It dence locating for a appropriate The method Quite simply, can’t be found. as NOAA’s boundary legal question a for the is' concludes, can report no one measure boundary, locating court.14 And in Laguna. in of the this area overriding goal grantor’s is to follow the I refuses suspect reason Court Further, cases decided intent.15 civil-law problem present- the scientific confront before Luttes considered historical evi- in this case is because the Court con- ed substantially contemporaneous dence with Luttes cludes that has to apply. determining specific bound- grants property along margin dealt with the west Indeed, in Cava- ground. ary line on the lower and the Court Trevino, zos v. recognized the the Court notion that because has fixated on the importance of such evidence: of the characteristics of the sur- some par- which practical interpretation in this case are similar rounding property conduct have their ties interested surrounding to the characteristics instrument, property involved result to a written cases given land, this case must be identical. Court large body grant an ancient just wrong. granted by general de- asked for among always admitted as scription, Luttes and this

The difference between very best tests the intention of case is that we now know based work that the water movement NOAA’s the instrument. Thus, this area of the is non-tidal. the circum- construing grant, such a for the known formula we also know that attendant, at the time was stances tide, determining the mean of made, evidence for the competent are requires factoring the measure-

which in the same purpose placing the court 18.6-year cycle, over the tidal can- ments situation, it the same giving advan- result, As a we cannot applied. not be papers, which tages construing this water level’s mean. determine by the actors them- possessed were Therefore, insistence despite Court’s selves.16 contrary, Luttes and the civil-law control the simply rule it identifies cannot appro- evidence is Accordingly, historical end, In the the Court result this ease.. margin of the priate to determine the west me, proper- with for it locates the agrees grant civil-law be- Laguna Madre plus Datum Plane one ty’s boundary at the determining rule for cause the civil-law line, it claims foot not the mean water level cannot be used. seashores calculated. can be Shine, Here, Darrell expert, the State’s II. THE WEST MARGIN the historical evidence correctly LOCATING examined MADRE

OF THE LAGUNA of the west mar- the location to determine original Madre that gin of line If no mean there is. Further, jury grantors intended. boundary of a civil-law to determine the 133, (1872) State, 6, (citing v. Tex. 163 14 16. 35 v. 12 S.W.3d Cavazos See Brainard 773, 784-85, (Tex. 1999). Trevino, (6 Wall.) 73 U.S. (1867)). L.Ed. 813 Co,, 151 Oil & Gas 15. Wheeler v. Stanolind 418, 149, (1952). Tex. 252 S.W.2d to establish the the area survey a line marks the mar- that the Shine found a That patent. boundary for issuance And there accuracy. reasonable gin with Spohn.17 v. in State was affirmed finding. judgment supporting is evidence Maddox judgment, F.M. the Spohn After experts it undisputed, Not was grant, and Big Barreta surveyed on the for sides testified based both field on the Maddox patent was issued surveys maps photo- and original survey generally Maddox’s ade- boundary a but to ensure grant was is establish proved defendants And, claims sued, land. the Court quate grazing the east judgment and its identified vege- or rejected use of a bluff that Lwttes boundary grant ern of the as the boundary. ordered tation line as margin. Madre’s west The court d). 1135, (Tex.Civ.App.-1904, writ ref 17. 83 S.W. 1135 298 have to locate the arguments justifies boundary

But none of these would been history, they do ignoring mark, the Court nor typical- which is ordinary high water authority reject jury’s to find- provide vegetation a line of ly indicated ing reasonably the Shine line accu- unique physical erosion.21 Because of the rately margin of the La- locates the west Lake, characteristics of the no such line arguments guna Madre. The Court’s found, past pres- or the could blindly accepts if one make sense Moreover, variety of factors com- ent.22 Luttes controls irrespective of whether the fluctuations in the Lake’s produce bined to civil tide can be law’s level, to and causing water flood measured. large surrounding areas of recede from case, typical In the meander lines are flats.23 boundary not themselves a line.18 But the appointed by the Special The Master surveys are his- meander lines of earlier that “the mean- Supreme Court concluded surveyors torical of where the evidence most reason- der line is believed to be the mar- understood the Madre’s west boundary question.24 to be. And line is consistent able gin Shine’s answer” every surveyor with the evidence where Special Master also concluded Lothrop placed before Claunch and significant fixing historical data was margin. west adopted boundary.25 Supreme Court and issued his Special report Master’s Moreover, authority than the no less decree.26 recommended permit- Supreme United States Court has to establish a water ted meander lines grants, civil-law this Court Regarding boundary physical a case which the rejected original civil- absolutely has never question of the area in characteristics grant surveys as some evidence law other methods. impossible made it use as the grantor’s Interestingly, intent. dispute involving a series decisions discusses, observed that Court courts have about between the United States Utah original surveys not unusual for Lake, of the Great Salt and to be done for the contain excess land upon Court was called determine assessing payment due from purpose Lake when original boundary of the Utah ignored by But the Court grantee.27 A was admitted to the Union 1896.19 case, that the evidence indicates surveyed around meander line had been disputed that here the area opposite, segments beginning Lake in 1855 part grants. to not be was intended finally concluding 1966.20 The cus- Moreover, surveys maps subsequent locating method for the Lake’s tomary Gilbert, 429, See, 23. Id. at 253. e.g., v. 112 Tex. 18. Stover 841, (1923). 247 S.W. 842 24. Id. at 295. States, 461, v. 427 U.S. 96 19. See Utah United 3187, (1976). 49 625 S.Ct. L.Ed.2d 25. Id. at 301-02. Report Special in Utah v. United

20. Master 245, 265, States, 461, reprinted Utah, in 1976 Utah S.Ct. 427 U.S. at 3187. L.Rev. 3187, 461, adopted S.Ct. in 427 U.S. (1976). L.Ed.2d 625 842; See, Stover, Corrigan e.g., 247 S.W. at State, Tex.Civ.App. 94 S.W. v. L.Rev. at 255. 21. 1976 Utah d, (Tex.1906). 94 S.W. 101 writ ref Id. at 255-56. argument that not reach the State’s margin Laguna of the located the west by either substantially place. the same Foundation’s claims are barred Madre Further, I preclusion. claim issue Luttes, suggests Overstating the Court holding appeals’ court of agree with the Luttes declared that a bluff line can never and the Foundation’s denying the State’s boundary. But that evidence of a provide attorneys’ fees. claims for not true. Luttes concluded that the only in that case could not be the bluff line line, it was high tide where higher IV. CONCLUSION origi- line had been the clear that the bluff Luttes re- law identified The civil and the evidence showed that nal shoreline property that shorelines be quires Texas fact, had since receded.28 higher high tide line. located at vegeta- the notion that a consistent with Luttes cannot control the result in this relevant, bluff line could be tion or Laguna Ma- boundary dispute because the in anticipated that the shore-

Court using be located margin dre’s west cannot physical line have obvious 'character- would high That’s higher the mean of the tide. ground.29 on the istics only available water measure- because the Finally, suggests accept- Court Moreover, Foun- ments are non-tidal. line ing boundary the Shine as the its carry dation not failed to burden along confusion the entire case will create no jury, produced but it prove recognize I I disagree. Texas coastline. ’ line Claunch/Lothrop evidence that that the Luttes declaration about the civil margin west marks the Madre’s designed provide law was the benefits about Luttes. theory own even under its certainty stability for civil-law shore- line But the civil as a boundaries. mean of the Because the law, requires higher matter of the mean determined, and because tide cannot be case, high tide line to be used. In this changed since the margin the west has not fine cannot found as a of fact. be matter I would hold that the west original grants, Furthermore, I argument find Court’s evi- margin may located historical predictability about of shorelines ironic. substantially contemporaneous with dence today Not until this Court’s decision does Further, produced the State grants. argument the Foundation even have an line—the line—is evidence that its Shine at some property’s its the historical evidence sub- consistent with location different than where the historical with stantially contemporaneous today, evidence it to be. And with- shows grants physical and with evidence blush, out so much as a the Court chooses ai*ea. high disputed water mark boundary, proof Foundation’s I would there is some Consequently, hold that it deter- which shows was found jury’s finding supporting evidence the mean mining neither ac- line “marks with reasonable Shine other water. nor curacy line the fast land and between AND III. CLAIM PRECLU- ISSUE Thus, I Madre.” the shore FEES SION/ATTORNEYS’ the court of judgment affirm the would not, I Because the does appeals. Court dispose I would of the case Because grounds, on other I would must dissent. the State’s favor at 192 Id. 159 Tex. S.W.2d rehearing). (opinion on

APPENDIX 1 SOUTH TEXAS GULF COAST REGION BELL, Appellant,

Walter

v. Texas. STATE

No. 74243. notes above that line. The Foundation position That’s the requires.

Notes

notes time of the graphs of the area from the survey. Both sur to the Cocke conformed physical the area’s grants present, grant Big Barreta veys confirm materially have not characteristics disputed property. did not include grants changed since the time of —two original grants well, in evidence were the historical evi- Also years. hundred As The surveys of the Little Barreta. intended grantors dence shows that surveyed by originally line to mark the Little Barreta vegetation the bluff or In la Fuente making Domingo de margin of the west survey of the made a confirmation boundary grants it of the Cocke the eastern two The meander lines grant. Little Barreta Big at issue—the Baretta and the Little closely de survey conform line based of the Cocke Baretta. And the Shine sketch. diagrammatic historical evidence. la Fuente’s largely on this ground also evidence on original grants, prior Physical Shine reviewed the Cole, an George line. surveys, early patent portions supports of the the Shine boundaries, tes- surveying water disputed property, photographs, expert historical that, cases, explained He prior court and information from tified for the State. tidal data are surveys He on aerial find a water when prior NOAA. overlaid available, surveyor would find the area and not photographs disputed of the ob- mark. ordinary high of the water changed served that the shoreline had not location physi- mark is a noticeably ordinary high the date since of the earliest ground by on the surveys, despite impressed cal feature construction water, changes vegeta- due to Waterway standing Intracoastal in the 1940s. in the soil itself. Cole testified tion or Furthermore, sur J.J. Cocke basically follows what Cole line Shine’s veyed Big sections of the Barreta to ordinary high would consider to be the railroad compa enable the State locate disputed water mark in the area. ny survey certificates area. did line, the Court part rejecting In Shine disputed include the area as sections, weight history by dismissive- proposed railroad but instead avoids the simply that Shine followed ly asserting part treated as a of the bed lines, previous surveyors’ meander Laguna Madre. the State sued lines in and of them- noting that meander predecessors-in- some of the Foundation’s also, interest, boundary. True selves are not the claiming unpatented the area as maintains, surveys original Although original grant land. Court State done to lost, grants land were not the court held that of civil-law had been

Case Details

Case Name: John G. & Marie Stella Kenedy Memorial Foundation v. Dewhurst

Court Name: Texas Supreme Court

Date Published: Aug 29, 2002

Citation: 90 S.W.3d 268

Docket Number: 99-0667

Court Abbreviation: Tex.