*1 Lain, Et Al Texas, Al v. Et T. W. The State Rehearing No. A-8109. Decided (349 S. W. overruled 2d Series October 3, July 579) 19, 1961 Harrison, Wilson, Attorney General, Ben M. James
Will General, Rogers Burrus, Attorneys H. Austin, and Thomas Assistant petitioner. for
McLeod, Mills, Shirley Alexander, Galveston, respon- & dent.
MR. CHIEF JUSTICE CALVERT delivered the Court. *2 accurately following
The nature of this suit in reflected the appearing statement in of Appeals the the Court of Civil (339 273) S.W. 2d :
“Plaintiffs, alleging simple ownership adjacent fee of land jetty right way Channel, to the south brought Ship of and Galveston try against this action in trespass to title the State Texas, members, of Highway the State Commission and its Highway Engineer State Engineer, and District ferry manager ferry captains Galveston and several boat Highway the State Department, in all as individuals and capactities. alternative, alleged their they official In the ferry defendants landing dredged constructed a a channel and property ferry operation sought over for to of a and enjoin the trespass. asserted The trial court dismissed party plea jurisdiction. State as a on its remaining “The presented pleas defendants similar jurisdiction, asserting capacities in official acted agents employees sovereign State, as immunity pleading legislative consent had to suit not been granted. pleas They guilty These were filed a overruled. plea; alleged controversy lay in abatement the land in navigable port a entry, within harbor of the Federal indispensable party; Government was an that contractual rights intervened; public acquired had that the an ease- had ment over the land. The involved within land patent boundaries the Menard in considered Menard, v. Galveston presented 349. Plaintiffs defendants Tex. summary judgment. motions for The motion overruled; plaintiffs defendants was that of was sustained. Judgment possession plaintiffs, for title and was rendered for enjoined ferry operating and over, were from defendants boats going or from on the land.” parties plaintiffs The bewill referred to here as and defen- plea dants. The State of Texas out of went the case its immunity sovereign and our reference will to “defendants” not include the State. appealed judgment
The defendants of the trial and, superseded having judgment, court have continued controversy. operate over land in boats in brief presented points of error their Defendants six the suit point asserts that Appeals. The first the Court of Civil Highway Com- against employees of the State members plea against that the defendants’ a suit mission is immunity jurisdiction sovereign should been based on judgment points that the third assert sustained. The second and in con- possession the land awarding plaintiffs title to and subject troversy plaintiffs’ title is is erroneous because public servitude and is burdened with a use the streets favor of the of access between Bay. of Galveston and the channel necessary and indis- point is a States fourth pensable asserts United point complains of the party the suit. fifth letters, pleadings, of certain exhibits admission evidence complains supersedeas point sixth excessiveness court. required bond the trial *3 original Appeals
On the Court of Civil sustained submission court, error, point judgment trial the first of the reversed injunction rehearing dissolved and dismissed the suit. On majority legislative of a prerequisite the court held that consent was defendants, against
to maintenance of the suit and, judgment holding, of the basis of that affirmed the considering points passing trial court without or on the other this of 339 2d 272. The defendants have before error. S.W. essentially by points questions presented of court their same Appeals. granted in of error error the Court of Civil We writ question point. primarily raised the first to review legislative prerequisite to main- Is consent to sue state against suit the defendants? On record before tenance of us, we hold it is not. controversy in
The land lies between the U. S. Government Island, jetty, on and the channel of constructed Galveston Bay. question It is land. Defendants do not Galveston plaintiffs’ title to That do not do so understand the land. conveyances plaintiffs Through regular chain of hold able. a Menard, adjudged by of title this court in vs. good Tex. in Menard. What defendants do contend, points apparent from their second and third of as is qualified title, subject error, a plaintiffs’ title is certain is that a in with favor of rights of the and burdened servitude They occupancy only rights as use and state public. assert state, employees, acting officials and on behalf of the. for and right occupancy and claim no of use and as individuals. land, recovery possession suit for When of title to and itself, legislative consent, against filed without is 'not state against only, pleading but is individuals the mere assertion right that officials possession the defendants claim title or state, prosecution of the state on not bar behalf of the will Hawn, suit. We did not hold otherwise in vs. Griffin juris- plea S.W. in 2d 151. We did hold that that a case immunity sovereign diction based on not available to asserting title pleadings individual defendants in the absence controversy to the land in the record before to be the state. On required go us in case we were further. The record no requires case go further, we do without and we so reluctance. legal possession who
One
takes
land without
another’s
right
no
or
trespasser
less a
a state official
because he is
employee,
legis-
required
owner should not be
obtain
he
simply
lative consent to
a
institute
suit to oust him
because
good
asserts
faith
that title
but overzealous claim
possession
acting
inis
the state and
he is
behalf
state.
Well reasoned and
decisions of the
authoritative
Supreme Court of the United States
of the courts of this
support
plea
sovereign
state
immunity
that a
view
sovereign
officials
will not be
sustained
a suit
having
possession
sovereign
owner
when the
*4
right
Lee,
possession.
has neither title nor
vs.
United States
196,
240,
Schwalby,
171; Stanley
106
1
U. S.
S. Ct.
27
Ed.
vs.
L.
348,
264, reversed,
5081;
85
Whatley
Tex.
19
vs.
S.W.
147 U. S.
Patten,
60,
App.,
refused;
Tex.
Imperial Sugar
Civ.
31 S.W.
writ
Cabell,
App.,
83,
history.
Co.
Tex.
179
vs.
Civ.
S.W.
no writ
possession
rationale
the rule
in such
m
is
cases
is not
sovereign
for
wrongfully
fact held
but it
held.
sovereign
party
in this
When
state the
is made a
defendant
land,
legislative consent,
for
to a suit
without
plea
its
to the
jurisdiction
sovereign immunity
of the court based on
should be
clearly
sustained in limine.
recognize
But
cited cases
only defendants,
only
when officials of the
are the
state
or the
remaining
they
defendants,
jurisdiction
plea
file a
to the
history
litigation,
Schwalby,
App.,
1 For a full
see also
U.S. vs.
8 Tex. Civ.
679,
90;
604,
435; Stanley
Schwalby,
29 S.W.
87 Tex.
S.W.
vs.
United States Court decisions in this field were length by reviewed at Vinson, both Chief writing Justice court, Frankfurter, dissenting, Justice in Larson vs. Foreign Corp., 682, Commerce
Domestic 337 U.S. 93 L.Ed. disagreement 1628. While were in as to whether the rule as we have applies stated it involving disputes also cases as to personal contractual property, both ap- affirmed its plicability in cases in which an taking unconstitutional damaging property process without just due and without compensation University Texas, asserted. vs. Walsh Tex. App., Civ. refused, 2d S.W. writ is cited defendants for a different conclusion. That decision distinguish- seems to be only ground able on the the defendants were not sued doubt individuals. We that that is a sound basis of distinction. harmony
The decision is long out with prior line of de- cisions our courts Supreme Court of the United *5 may longer regarded States and no as authoritative.
Wé are thus confronted necessity with the determining of plaintiffs’ whether the admitted title is servient to being the uses dredged by Defendants have made of the the defendants. land of jetty in channel the out bay area the and the the soil the between provide a channel pilings in the to placed and area boats, landing completely appropriating thus and for their plaintiffs the use the exclusion of and the area to their own to put principal reason may to The the uses which wish it. given by appropriation the and use of the for their defendants plaintiffs’ subject public the land is to title is premises purposes. navigation reasonable use other not, urge original grant Defendants to Menard did not, convey could question these to an individual. This against position long defendants’
was
since foreclosed
Menard,
the decision
this court
of Galveston
of
vs.
Plaintiffs’ title had its purpose of It no Texas Michael B. Menard. would serve useful surrounding length review at the circumstances either grant grant in Menard The of this court case. admittedly controversy included the land here. By Congress Republic an Act of of Texas December of on 9, 1836, right, title, claim and interest which the all league land, lying Republic one had in one labor Island, on, including East end of was situate relinquished Menard, Presi- in Michael B. to and vested quitclaim to Menard Republic dent of the upon payment was directed $50,000. A fifteen tract the sum acre block for the erection of a customs house were a suitable of lots grant. are not reserved The reserved tracts involved in this suit. Houston, Congress, Act
Pursuant President 25, 1838, January patented to Menard land described metes surveyed Lindsey. and William and bounds R. C. Trimble boundary “eastwardly northern ran with the Bay of Harbor in the Galveston and with the Channel general course of said Island at distance at [Galveston] fifty from the shore.” least one hundred varas incorporated by Act an of Galveston Texas, February 5, Congress Republic approved 1840. 440. Laws Texas Gammel’s Legislature passed Act, In State of Texas an 8, 1851, (3 1043) Gammel’s Laws of Texas approved December
555 granting powers City 1 of Section certain Galveston. City granted power opening the streets the Act bay City running to the north south on the side of and channel and to erect at the end of the streets. Section wharves granted City power portions the flat 3 “to fill such mark, by water, ordinary and water covered between low tide nothing Bay provided the channel on the 4 side.” Section in the fourth “construed to affect third and sections should be any legal City.” privileges persons title to wharf held in said Legislature, passed approved
Another Act of the and Feb- ruary 16, (3 1229) expressly Laws of Texas Gammers designed 8, 1851, supplementary December as to the Act of nothing declares that in the Act “shall so construed as first impair any rights conveyed to alter or of the heretofore ” Menard, assigns.’ ‘Michael B. his heirs and grant legisla- congressional to Menard and the other City ture Acts listed above the court were before when of Galves- ton vs. power Menard was decided. and intent of the Re- public grant patent area included in the derogation public rights navigation, etc., Menard in fully considered. The court confirmed the existence of both power recognized and intent and absolute Menard grantees submerged areas, subject and his to fill up and use the only City of the the land to streets across operate channel and to build and at wharves the end of the Illinois, streets. Defendants cite Illinois Central Railroad Co. vs. Darling City News, Newport U.S. 387 and vs. 249 U.S. reaching contrary
540 as results to the result reached cases, court in the Menard We not review the cited case. need regard controlling. property we our own decision as Valuable money acquired expended have been sums of vast validity upholding the basis of our decision delineating respective rights patentee grantees and his represented by on the one hand and of the as on the other. Plaintiffs do not seek Galveston this suit to passage light land, craft interfere with over their they type there is no indication that will interfere with that public use while the land is covered with water. What do confiscating prevent from prop- seek is to the defendants their erty, just compensation, appropriating without it to a use rights. their inconsistent with discloses that 1888 the United
The record States obtained fifty end easement, roughly along of the east foot the shore title, and Island, predecessors plaintiffs’ Northeasterly jetty running erected a in a over the easement controversy. point direction at The streets running First to Sixth north and south are numbered streets. surveyed County on the Streets lie wall east of the sea *7 ground A, a considerable have a northern terminus Avenue at jetty right-of-way. If were distance south of the Second Street jetty. opened on intersect the its direct northern course it would began ferry operations March Defendants in 1943. On 3, City presented adopted 1944 the two resolutions of Galveston resolutions, Highway considered Department. the State together, Highway Department desired recited that the State City expend of the corporate certain funds within the limits constructing Highway from Boulevard “State No. 87 Seawall Ferry Landing through City to New of Galveston Galveston location”, agreed that the over Second State Street new Highway Department might improvements, maintain the right-of-way permitted, be no encroachments on the would speed than 30 fixed at less limit thereon would authority Highway per miles hour. to that Pursuant State Department purchased predecessor in title the plaintiffs’ necessary highway. highway right-of-way ties build point A to the north end of Second at from which Street Avenue beyond any east, crossing passing future it curves Street, curving slightly in direct extension of thence back First northwesterly its intersection with the United direction to States jetty controversy, although The tract of much easement. Galveston, greater lies on width than the streets jetty directly opposite the north side terminus highway. map the east end of Island show-
A of a section of Galveston City streets, Highway jetty right-of- ing No. U. S. controversy way is attached. area above, recognized case, in the Menard as indicated The court subject that the to Menard running north and south across streets Bay. plaintiffs’ land to the channel Galveston Defendants controversy appropriation of the that their is an assert suggest why right. Plaintiffs several reasons exercise of justified appropriation of their land cannot be on the basis *8 authority City construct and streets bay. the channel of the need to one. We consider but highway construction of the the terminus of Sec- jetty not, ond Street at Avenue A to the easement and on be, City purport face extending the record us action before does not bay. Second Street to the channel of the The resolu- tions of the Council do not authorize an extension of Second only Street; Highway Department authorized the City’s highway corporate construct a state within the limits. Whether under the decision of Galveston vs. Menard the City could an have constructed extension of a street outside original limits, corporate departing original from the surveyed, thereby course of the streets as have established constructing use channel landing unnecessary are matters we find to decide. plaintiffs’ controversy We conclude that title to the land rights is not servient which the defendants assert. necessary party United States of America is not a only plaintiffs posses- suit. The seek to recover the title to and enjoin sion their land from the defendants and to their use adjudication posses- the land. Neither the of title and plaintiffs, injunction, any sion to way nor the interfere in with government powers of the United States. *9 exhibits, pleadings The letters and admitted in evidence over objection proper defendants’ are immaterial to a the decision of case. judge
The record before us indicates that the trial did not fixing abuse in supersedeas his discretion the amount of the Moreover, $7,500.00 having at bond the defendants made bond complaint. in that have no basis for sum sound (cid:127) disposes questions This of all the of law the case. The in suggest consequences defendants will an dire follow affirm- judgments operation ance the below and the termination of the ' ferry ensue, consequences responsibility of the boats. If those party rests with the of Texas. The State was made a to State legal right plaintiffs’ plea it had a file suit. While its sovereign immunity, required it not was to do so. Under express provisions of Article Vernon’s Annotated Texas Statutes, State, remaining party in the suit as a de- and, alterna- fendant, challenged plaintiffs’ title could have prop- plaintiffs’ of the tively, sought condemnation could have ferry not erty. so, operation could Had done it 448, 279 Adams, 154 Tex. enjoined. City of Houston vs. been remaining case in the could 2d 308. The defendants S.W. Only by Art. 3269. provided and remedies assert public travel interruption of If itself could assert them. State at- it follow decision cannot be inconvenience this only flow purposes plaintiffs; it can tributed evil right appropriate litigate its the reluctance State its to condemn cross-bill property use failure just compensation property. pay and to court judgments Appeals and trial The of the Court of Civil are affirmed.
CULVER, (dissenting). Justice point jny re- disagreement with court’s decision right question possession and use lates State’s Highway highway purposes. this land for In 1943 the State Highway project Commission entered to construct State ferry operate No. northward from Second service Street connecting across the thence across the Galveston channel and knowledge plan Texas Coast. of that and in further- With full conveyed respondents’ in predecessors ance thereof title sold and right-of-way dispute, up knowing full well to the area highway sub- would be extended across flats and merged land, the wharf or terminal facilities would high- established, ferry put operation. into service way ferry cost, terminal built constructed at considerable ferry put operation purchased boats into and until 1951 no objection posses- was raised nor was State right-of-way operation and to the boats sion questioned respondents predecessors either or their in title. Summary judgment was rendered the trial court favor decreeing possession respondents title and Highway against Commission of Texas and them as *10 individually capacity thereof and their official the members employees against of Texas in- officials and the State and dividually officially. and enjoined Highway perpetually the State
The trial court .also Commission, Highway Department, and all of the Texas defendants, employees both as state officials individual- ly going upon premises operating from in or from transportation boats or other means of thereover. Respondents’ evidently construed their vendors Texas, by legislative qualified explained the State of later enactments, provide and thor- for the construction of streets oughfares tacitly, expressly, if over this land and consented purpose. to its use the State for that respondents I am of the the title held is not interest, namely, public an absolute one but is burdened with a part public City— on the —the of access to the granted channel over the to Menard. flats and Menard, In v. Galveston Tex. court grant by construes this Texas as follows: construction, “In view of the full force of this rule of we satisfied, legislative grant are that this was intended contracting parties flats, city to include the so as build to, island, running up with streets and lots bay.” 398) bordering (P. on the channel of the channel, private appropriation
“That of lots on the wharves, contemplated, for that streets were use, channel, be left out to the was abundant- ly practical illustrated action of the founders of the city, subject.” (P. 403) in reference to the right, then, Menard, vendees, his
“The soil flats, lots, channel, fully out to in the front of the recognized. may, time, in the course of when This reclaimed, by being up, filled so as to become the are site houses, subject opening cross right of business done, streets, practically it can be and where such when 408) (P. may not been lost.” city right, opening, improvement, also of the “The streets, running channel, out to the with the and use them, fully and control front of right to build wharves (P. 408) recognized.” wholly the merits of this case turns almost
The decision on *11 561 in v. upon interpretation announced of law as the correlative case delineated Menard. The rights in that assigns public. relationship and property Menard’s and of in mind Legislature had purpose that the pointed As out the sole a com- grant to build making in to Menard unusual was this lan- city entry in the port the channel and mercial and a of on by re-emphasize: I guage used the court which “* * * aggrandize- up private for to be and taxed not shut ultimately self-preservation, ment, give but it the means of to appropriate to the channel of control of the avenues a commerce, built, upon it became able which it was whenever page 405. improve them. 23 Tex. at to establish and City upon developed to be an island. The of Galveston was important port It as account of its ex- envisioned an easily-accesible again The and harbor. court Menard cellent again public demonstrates that was entitled to reason- and over the flats and the and able access to the harbor shore that necessary growth Legislature as and so intended city de- port. of a velopment and legislative approved 8, 1851, Act December
The which ex- City upon pressly privilege confers Galveston the opening channel streets erect at the wharves end declaratory of the streets is discussed court and held to be legislative intent when the Menard was made.2 respondents here do otherwise contend. 4, 1851-52, 2, Chap. 13, pp. 2 Texas Vol. Laws Part 11-12 Legislature Texas, 1. it enacted That “Section Be the State power corporation privilege opening of Galveston shall have the running Bay all streets North South on side of said power channel; also have the end and shall erect wharves at the they may proper. as deem such streets corporation power wharfage shall 2. That the said to fix the rates of “Sec. same, goods, merchandise, on all wares and landed said and to collect bring wharves; any having suit to recover same before Court wharf controversy. jurisdiction of the amount power corporation up portions That said shall have the to fill 3. such “Sec. by water, ordinary mark, between low tide water of the flat covered side, corporation may necessary Bay said deem on the channel purposes. relinquishes hereby State of Texas and releases unto the 4. That “Sec. city Galveston, rights privileges mentioned; corporation of all the above nothing provided, in the third and fourth sections of this act shall be construed City; privileges persons any legal title to held said wharf affect passage. in force and after its act effect and be take 8, “Approved, 1951.” December majority in this connection also refer to an act of the Legislature February 16, (Laws Texas, of the State 1851-52, 4, 2, p. 78, 181), declaring nothing Vol. Part Ch. in the Act of “shall December be so construed as to alter any or impair conveyed *12 heretofore to B. Michael Menard, assigns.” implied his heirs It not to that any way this later act in granted limited the in the former city opening erecting act to the of streets and wharves the at of fact, end the As streets. demonstrative of of the Act that February 16, 1852, additionally provides not “that act shall prevent Mayor, be construed so to the as Aldermen and inhabi- City of erecting tants the of Galveston col- wharves and lecting wharfage running gulf of front streets from the the to bay, occupied not passage at the time of the of this act any rate, wharves owned At individuals.” this court in Men- original ard construed acts in grant these connection with the question and sets that at rest. following respondents deny
For the right reasons the the question occupy highway the to the purposes State land in operation and for ferry terminal facilities the service (1) language across the channel. The Section the empowers City only open up Act the to the that streets existed City corporate within the limits of of Galveston at that time; City that if power had additional streets many destroy right plants the channel it would have installations that had been theretofore erected build on validity (2) patent. dredged-out portion of the Menard The being ferry opening the land as a fact used channel not in up meaning 1851; street of a within Section Act highway right- while does connect with Street Second of-way was not in a direct line but curved to the east and could just easily Streets; been with have connected First or Third since a it is not continuation Second Street opening same course and up it cannot be considered as an distance (3) Highway of Second 87 was not Street. intended City as an extension Second Street because area between up and the channel been built end Second Street has with (4) City homes and other The structures. Galveston has attempted Highway to declare State 87 as an extension of Sec- any not taken formal ond Street and has and affirmative action (5) toward that The to extend streets to the channel end. dredge did not include the and build wharves out (6) any operate ferry. opening up At all soil and a events City Street, the State would be limited to an 80- Second foot street and not terminal facil- be allowed to install the require greater ities which would width. majority thought only necessary have it to discuss assigned 4, namely,
reason in No. the resolutions of the purport Council do not to authorize an extension of Second Street, only Highway Department but authorized the highway City’s corporate construct a state within the limits. assigned major- The other reasons are not I decided. assumed the ity singled compelling out this as the one most to their decision. my majority narrowly
In too construed the power purposes power for which the granted. import is that if taken had formal action resolutions authorized an extension of Second Street this sufficiently empowered action would have the state authorities *13 possession necessary right-of-way to take over this tract highway thereon, and construct its and at facilities least absent objections. the other my opinion
In explanatory the legislation and pertain- ing gave City thereto and construed in Menard the right the of reasonable access to the channel for the development growth normal City. It is immaterial unimportant adopted by City the formal resolutions the highway described the route as a right instead of a street. The existed either It event. is to be recalled that after the resolu- adopted highway tions were the and terminal facilities were eight years constructed. It was not until thereafter when for complaint the first time was made. It would seem that if there any objection had been toas the form or nature of the resolutions objection timely should have been raised rather than to wait spent until the state has a money tremendous amount of in af- fording ingress egress this means of to the citizens of Gal- veston and public generally. the members of the assigned None of the other reasons respondents, I think, my are In power valid. was not streets limited to those streets that were within the corporate limits at the time of the incorpora- act of tion. following quotations two case, from the my Menard
mind, clearly are contrary: indicative of the
“By legislative grant, the strict letter of the Menard’s property It channel. is extended did not extend to the only by contracting there, plain intention of resort to parties. extended, then, one for the benefit of Shall it be contracting party, pre-sup- That not other? would pose object government, was to him enable may private speculation. a to make been Whatever object, only object which, presumed, his government had, it can be city, port of
was to build a commercial entry, channel; up private to be and taxed shut ultimately aggrandizement, give it of self- but means preservation, by appropriate control of the a avenues commerce, built, channel of which it was whenever it Page improve became able to establish and them.” Tex. at 405. appropriation
“The channel of the streets to the in front of according plan town, by off, laid these the under- standing contracting parties foundation, its necessarily prospective, things from the condition at the grant, laying city, time of the selling and at the time of off ** lots; Page Tex. at 407. Again, there is no conclusion to be drawn from Menard from the 1951 Act that the street must be extended a direct projection and that it cannot somewhat on curved account lay anyAt rate th of the land or for other reasons. the exten- northerly in a direction to the channel. So sion was far as dredge concerned, operate is out the soil power implicit. permission Express granted I think this *14 land, only on or to build wharves over the limitation already being it interfere with could not wharves establish- By by private individuals. definition a wharf is a dock ed but may freight discharged passengers or or where otherwise Dictionary, New International taken aboard. Webster’s Second Edition. clearly my opinion
In to Menard was burdened with public reasonable access to and from the island flats, channel, submerged lands across sum- mary only right on is the claimed here behalf of the only right public, being which contest- ed. anxiety respondents’ over the destruction of
I not share do wharves, docks, erected and other installations boat clubs opening up by subsequent flats over the petitioners’ position be highways the future should streets clearly enjoined by Menard decision. upheld. That is by rights that have become the streets is limited case occupation and user. In this vested others actual for Highway the benefit occupied Commission the land any being put to Texas and the of the State of unoccupied. other use. It was vacant and petitioners.
I would render in favor of reverse and Employers Hancox v. M. E. Texas Insurance Association 19, July No. A-8317. Decided
Rehearing October overruled 102) (349 S. 2d Series W. Paso, petitioner. Edwards, Belk, Kerr, El for Hunter & Maner, Lubbock, respondent. Splawn & GREENHILL delivered MR. JUSTICE
Court. *15 compensation claimant, case in which the
This a workmen’s