199 S.W.2d 191 | Tex. App. | 1946
Suit was by the State and the Town of Refugio (hereafter referred to as the Town) against numerous named individuals, and the Houston Oil Company, in trespass to try title to 15.65 acres of land, being a part of the bed of the Mission River in Refugio County. The W. R. R. Oil Company and Jack E. Gaines, holders of an oil and gas lease on the land sued for, intervened. The portion of the river bed here involved lies in the western part of a grant of four leagues made by Coahuila and Texas to the Town of Refugio in 1834. The suit was filed on March 6, 1939. The defendants, appellees here, claimed title to said lands under the ten-year statute of limitation by virtue of the provisions of the Relinquishment Act, commonly referred to as the Small Bill, which became effective March 3, 1929. See Art. 5414a, Vernon's Ann.Civ.St. Trial was to the court without a jury before Judge J. O. Moore, who died after the close of the evidence but before judgment. The record of that trial, without further evidence, was thereupon submitted to his successor in office, and judgment rendered that the appellants take nothing; and that the appellees be quieted in their limitation title to said lands; hence this appeal.
In its judgment the trial court found, among other things, as follows:
1. That the original grant to the Town of Refugio contained, including the river bed, exactly four leagues of land;
2. That consequently, on March 3, 1929, the effective date of the Relinquishment Act, and under said Act, title to the river bed vested in the Town;
3. That continuously after said March 3, 1929, appellees had said lands enclosed by good fences under claim of ownership, which was adverse, open, visible, notorious and hostile to said Town;
4. That the mandate of the Supreme Court issued out of the case of Heard v. Town of Refugio,
5. That the judgment in that case was not binding upon the defendants (appellees) in the instant case;
6. That the survey made of the lands involved in this suit was not made in accordance with the decisions of the Supreme Court of Texas; *193
7. That the portion of the river here involved constituted a statutory navigable stream.
Obviously findings Nos. 2 and 5 are conclusions of law and not findings of fact. Finding No. 7 is not attacked. If the trial court erred in finding No. 3, then findings Nos. 1 and 4 become unimportant in so far as appellees are concerned. The first contention made by appellants is that the trial court did err in its finding No. 3, in that under well settled decisions, the possession, use, and occupancy by appellees of the river bed in question between March 3, 1929, when the Small Bill became effective, and March 6, 1939, when this suit was filed, under the undisputed facts, fails to sustain a limitation title in appellees. We have concluded that this contention should be sustained.
The lines of the original grant to the Town called to cross the Mission River. The calls for the lines of the tracts subsequently conveyed and now owned by appellees do not cross said River. It was determined in the case of Heard v. Town of Refugio,
Considering now the issue of adverse possession, the record shows that the Mission River in this area runs from northwest to southeast. Mrs. F. V. Heard in 1929, and long prior and subsequent thereto until her death in 1939 or 1940, owned a 600-acre tract lying north and south across the portion of said river here in controversy. In June 1925 she executed an oil and gas lease on said 600-acre tract to the Houston Oil Company, with full rights of ingress and egress to and upon said lands for development purposes, to build tanks, run pipe lines, etc., on all or any part of same. As early as 1904 said tract of land had been fenced, the fences crossing said river, capable of retaining stock in said pasture, and with water gaps across the thread of the stream which the flow of flood waters in the channel would open; but which were kept closed when the stream was not at flood level, so as to prevent passage of live stock into and out of such pasture via the bed of the stream. These fences across the stream were maintained at all times from 1904 up to the time this suit was filed; and the lands enclosed by them used for grazing live stock, in addition to use in oil and gas development. The Houston Oil Company assigned a part of its acreage, but retained 400 acres of the original 600, which it developed for oil and gas, erected tanks, pumps, and other essential equipment thereon at its wells, none of which were in *194 the river bed, and laid gathering pipe lines over and upon the area, some of which crossed the bed of the stream. The character and use of both the bed of the stream and of the adjoining riparian lands by appellees and their predecessors in title was exactly the same after March 3, 1929, as it had been theretofore.
The character of adverse possession which will ripen into a limitation title under Arts. 5510-5516, Vernon's Ann.Civ.St., has been repeatedly adjudicated. The stringent rule laid down in Satterwhite v. Rosser,
But appellees urge, and the trial court apparently so concluded, that the fencing of property plus claim of ownership and use for grazing purposes for the requisite period of time suffices to mature such title in the claimant, citing, among others, Wingfield v. Smith, Tex. Civ. App.
Under these authorities what then were the uses to which said river bed was adapted, what use was made of it by appellees, and what evidence was there to put the Town upon notice that appellees were claiming title thereto adversely to the Town? The actual bed of the river, the only land here in controversy, when delineated according to the formulas laid down by the Supreme Court in Motl v. Boyd,
The other evidence particularly emphasized and relied upon by appellees to support a limitation title is the continuous maintenance of their fences across the bed of the stream; and the laying by the Houston Oil Company of pipe lines across it. The latter was, we think, clearly no evidence of an adverse claim of title to the lands over which they were laid. No attempt was made by said oil company to produce or recover the oil and gas beneath the river bed by drilling wells therein. The pipes were laid and used only for the gathering and transportation of the oil and gas produced outside of such river bed. At most the right to lay pipes over the lands of another, or doing so without the permission of the owner could amount to no more than the assertion of an easement over such lands for such purposes; and an easement does not constitute nor defeat an adverse claim of title. Young v. City of Lubbock, Tex. Civ. App.
The most serious question presented as evidencing an adverse and hostile claim is that of fencing. Was that sufficient, under the circumstances of the instant case, to give notice to the Town of an adverse claim of title? We have concluded that it did not. The stream in question, though navigable in law, was not navigable in fact. It did not constitute a barrier to the passage of live stock to and from the riparian lands on either side of it; nor would said stream, without a fence across it, have prevented the passage of cattle via the river bed at normal flow of the stream to and from the lands owned by appellees and those of other riparian owners above and below. The only way appellees could have contained their cattle, therefore, on their own lands was either to erect such fence across the bed of the stream, or to erect fences along each bank thereof so as to enclose their own lands and contain their live stock thereon. The latter course would, in part at least, have deprived appellees of the rights in the use of such stream and its waters, to which they, as riparian owners, were entitled under the law. We think it is clear that the erection and maintenance by appellees of such fences across the river bed were designed and intended primarily to keep their cattle on their own lands without regard to the legal ownership of the bed of the river. The Town, as owner of the legal title, could not have fenced off the river bed without interfering with legal rights of the riparian owners; and the riparian owners could not contain their cattle on their own lands without extension of their fences across the bed. Under these circumstances, building and maintaining of such fences, when coupled with the only use they made of the river bed, was just as consistent with a recognition of the Town's legal title to such lands, as with a denial of such title; and did not evidence such open, visible, notorious, hostile and adverse claim of ownership of such title in appellees as meets the requirements of the statutes and the rules announced in the decisions above cited. The erection of fences absolutely essential to keep stock enclosed on the lands to which they already had legal title, under the peculiar circumstances here presented, does not, in our opinion, "indicate unmistakably an assertion of a claim of exclusive ownership" by appellees of the lands constituting the river bed. We think the court erred in so finding.
We agree with appellees that fact findings in a trial to the court, if there be substantial evidence to support them, should on appeal be given the same consideration as would findings by a jury. But that is not the issue here presented. The issue here is whether the uncontroverted facts as shown by the record will, as a matter of law sustain a limitation title in appellees. Our conclusion is that under the well settled decisions they do not.
Under the conclusion above stated the failure of the district court upon remand to it by the Supreme Court in Heard v. Town of Refugio, supra, to comply with its mandate, if it did so fail, adds *196
nothing to appellees' claim of limitation title to the lands here involved. And even if it be conceded that the judgment in that case, as to the lands there involved, be not binding upon the appellees as to different lands involved in the instant case; the settled principles of law announced in that case and in Motl v. Boyd and State v. Bradford, do apply to the river bed of any navigable stream in Texas. Under established decisions, therefore, when it was made to appear, as the trial court found in the instant case, which finding is not attacked, that the section of the Mission River here involved was in law navigable, then, prior to March 3, 1929, the title to same was in the State. Under the Small Bill, the State's title, dependent upon the acreage contained within the boundaries of the original grant, either remained in the State or passed in whole or in part to the Town. None of it passed to the appellees. And if, as we have concluded, the appellees have acquired no title to said lands by limitation, they have no interest in the division thereof as between the State and the Town. Under these circumstances, therefore, and the conclusion we have reached on the issue of limitation, whether or not the trial court was in error in its findings and conclusions Nos. 1, 4 and 5, as above set out, becomes immaterial. This being a separate and distinct suit from the case of Heard v. Town of Refugio,
The only remaining question material to this appeal is whether or not the survey of said river bed was made in accordance with the decisions of the Supreme Court defining what constitutes the boundaries of the river bed of a navigable stream. Since appellees' lands extend to the bed of such stream, they are of course materially interested in the establishment of such lines; and are here contending that in the survey as made, the surveyor went beyond the legal boundaries of such river bed and included some of their lands. The field notes themselves do not disclose the location of said lines with reference to the banks of the stream. The proof as to such location was made by the testimony of the surveyor and several photographs of the section of the river bed here involved. It is impracticable to set same out in this opinion. We have reached the conclusion, however, upon careful consideration of the testimony of the surveyor, and his explanation of the photographs of the banks and bed of the stream, that he erroneously interpreted and applied the rule laid down by the Supreme Court in making said survey and in fixing the boundaries of said area.
The law with reference to the location of such boundaries appears to be well settled. It was first considered at some length by the Supreme Court of Texas in Motl v. Boyd,
The definition of such boundary as stated in Motl v. Boyd is taken almost verbatim from the language of the United States Supreme Court in Oklahoma v. Texas,
An examination of the photographs of said river bed and banks which constitute a part of the record, as explained by the surveyor, and his testimony showing that he based his medial line half way between the bed of the stream and the topmost line of the bank, which was not reached by the waters of the stream except "when the river is at flood"; and further, that the banks which he regarded as "cut banks" show to be covered "by upland grasses and vegetation" and not to be water washed except near the bed of the stream; clearly discloses, we think, that the surveyor who ran the boundaries of the lands sued for, misconstrued and misapplied the rule announced by the Supreme Court for determining such boundaries, and included therein lands which appellants as owners of the river bed were not entitled to recover.
We have not undertaken to discuss all of the contentions made by the various appellants for the reason that the above stated conclusions in our opinion are determinative of this appeal. Under the foregoing conclusions the judgment of the trial court is reversed and the cause remanded with instructions to the trial court to cause the portion of said river bed to be correctly resurveyed at the cost of appellants, said survey to be made in accordance with the holdings of the Supreme Court in the cases cited, and that judgment be rendered for appellants, as their respective interests appear, for title and possession of the lands so constituting the river bed of said stream in the area described.
Reversed and remanded with instructions. *198