*1 (Tex. 196 SOUTHWESTERN REPORTER Navigable <®=>37(4) 10. 5677.)* Waters of (No. et al. STATE. —Grants Presumptions. Lands —Bed of Lake — Appeals .Sayles’ (Court Austin. Texas. Where of Vernon’s Civil Ann. of Civ. St. May 5338, required Rehear art. Motion for 1917. On all on nav- igable 27, 1917.) ing, waters should June front one-half of the thereon, right angles, and run back at and sur- Navigable <@=»36(2) Ownership veys upon 1. Waters made, — a lake were so evi- it was op dently regarded Bed^Grant. navigable lake, as a so a nav- of If the owners grants. bed would not 'be included'in the igable it is the bed lake own cases, Navigable [Ed. Note.—For other see specifically granted, since was the land cause Waters, Dig. Cent. §§ 218-222.] appurtenant to land. land cannot be <@=>S9 11. Waiers and Water Courses —Con- Navigable cases, other see [Ed. Note.—For trol of Calls. 180-183, 196.] Waters, Dig. §§ Cent. edge margin, water, high A call for the of <@=>11 __ Law mark, 2. Common —Effect—Statutes. or low water or shore or bank of a lake by condi- modified local Common excludes bed thereof. tions, force Texas. cases, [Ed. Note.—For other see Waters and eases, see Common Courses, Dig. other [Ed. Note.—For 91, 92, Water Cent §§ 107.] Dig. Law, 12.] §§ Cent. t Navigable <@=>1(3) 12. De- Waters —How — Capacity “Navigable <@=»34 — termined and Courses Wa- Waters Water —Stat- 3. Governing. ters.” utes nonnavigable Whether waters are to be as to de- The common par- capacity in Texas. termined ticular use averaging are taken and which and the rule decision not inquiry time a lake and cases, other see Note.—For Waters [Ed. four feet in fish Dig. Courses, 28.] §§ Cent. Water capable use for <@=»3(9) Control—Quantity. floating logs 4. Boundaries — draft -or boats is disregard- will be excess While Navigable cases, see [Ed. Note.—For other can boundaries of where the ed otherwise Dig. .Waters, 7.]§ Cent. certain- reasonable ascertained with Navigable — ascertainment, <@=>37(2) ty, yet, 13. Waters Sale in the absence determining State —Power Sell. looked to quantity; Sayles’ Ann. Under Vernon’s boundaries. sold, cannot be art. Boundaries, cases, see other [Ed. Note.—For jurisdiction is under the under article 4Y21b Dig. 41.] § Cent. oyster game, fish, commissioner. — <@=>89 and Water Courses 5. Waters Navigable cases, other see Note.—For Presumptions— [Ed. Public Lands — Grants of Waters, Dig. § 203.] Cent. Lake. Shore of grantee Though hold an excess Court, Appeal Travis Coun- from District grant for natural or in his the calls Judge. Wilcox, ty ; Chas. objects ex- which his line will artificial tended, against of the state never intention it was J. Welder John Suit the State any survey, and there- an excess Judgment plaintiff, and de- for and others. for the shore of a a line calls fore it appeal. for Affirmed. motion On fendants the center mile to reach not be extended will rehearing. Motion overruled. of the lake. cases, see Waters other Note.—For Courses, [Ed. Proctor, Brooks, Austin, and & Batts 91, 92, Dig. 107.] §§ Cent. Water Victoria, Mitchell, Vandenberge, Crain .& Atty. Gen., Looney, appellants. Courses <®=389—Nav- B. and Water G. B. F. Waters 6. igable Atty. Gen., Tates, of Cause. Smedley, and Elmer Waters —Control Asst. extending the appellee. Edinburg, doctrine common-law the center call thereof lake for a not does Findings Fact. boundary. aas cases, see Waters other JENKINS, [Ed. Note.—For J. The Texas sued state of Dig. 107.] Courses, §§ Cent. Water try trespass re- title to the— <@=>1 of Calls Boundaries —Control 7. cover'5,823 metes acres of land described of Parties. Intention bounds, alleged constitute the bed controlling issue suits county, Tex. Two Green Lake Calhoun parties. intention Boundaries, in evi- cases, notes were introduced sets of field dence, other see [Ed. Note.—For Dig. July, 1913, 1.] the lake § made in one <^ent. acres, embracing 4,927 <§=>33 dry, of Calls— in which Boundaries —Control was Quantity. run of the lake was for a lands called aWhere surveys; field notes presumption is given the number surveyor in No- grant more, the same other government intend to did full, not be extended to include lines would vember, lake was .when cent, acreage. per greater approximately a 40 edge, along water’s run which was cases, Boundaries, see other Note.—For [Ed. was difference acres. The embraced Dig. 146-152.] §§ Cent. occasioned erosion — — <§=>9 Control of Calls Boundaries side the lake. northeast Quantity. with- the court was tried before The case conveying of acres Grants pasture stating gave jury, arable the amount of the court out extended to embrace in each lands field notes of the state is neither arable a lake bed which area dry. In other made when words, pasture land. nor recovered the state cases, Boundaries, other see Note.—For [Ed. Dig. included the field notes 77-89.] the lake §§ Cent. topic Key-NumberedDigests see same cases Indexes in all KEY-NUMBER ^sz?For pending *Application -error Court. for writ *2 according However, quantities surrounding run fish in when out considerable have have sold, 'been taken from it and boats Green their calls for and distance. course operated upon purpose taking it for the form, miles Lake is in and is about oval 3% fish; fishing lake is of some value aas long entirely by preserve. about wide. is miles Considering “III. by patented surveys, the size the but also the surrounded by as shown depth water, lake and the of its following map the official sketch from depth variableness ture of the overflows, of the the na- county: of Calhoun surrounding country, frequent its case, and all the circumstances of the probable any it is not that it will ever bo of highway a value as of commerce. surrounding “IV. All of the lands the lake by defendants, now are owned but were originally granted parcels in small to different persons times, and at different reference papers here evidencing made to the title grants, which in were introduced evidence case, description grant- this' of the land ed and for such other facts with reference thereto as be material. “V. I grants find that each of the surrounding said lake contained the full number grants of acres called for in such in- cluding any portion therein of the bed of said lake; grants and that to hold that such in- clude the bed of the lake would have the effect nearly doubling of land called grants. for except “VI. All the defendants Winn T. Harvey, disclaimed, claiming who has are title to the lands under the waters of said ownership grants virtue lake surrounding it. “I find that the made I-Ielmbeck year 1913, dry, repre- the sents when the lake was approximately grants the line which surrounding the lake extends constructed according adopted calls, to their and this line has been por- as the true those tions of the lake.” request appellee at the And the court following findings
made the
fact:
additional
Green
“I find that the
around
Lake
always been,
grazing
part,
land,
the most
for
and
and
always
thinly settled,
been and is now
has
that there has been no trade
sufficient
vicinity
said
any
warrant
considerable use
purposes
other than
Lake
commercial
hauling
fishing
wood,
than the
other
the witness
Henry
Henry
find
Jordan.
I
testified
that
sailboat
year
Jordan built
long
masts
20 feet
with two
and draw-
carrying
ing 2
water when
three
feet of
cords
following
The court filed the
statement of
wood,
same for
con-
he used the
and that
facts:
carrying
time in
firewood across
siderable
subject
Lake,
controversy
“I. Green
Fleming,
for a man named
who lived near
case,
lake,
during
inland fresh water
situat-
the same time
the
land
hunting
county, Tex.,
by light
ed
Calhoun
miles
skiffs
boats
2%
was used
Guadalupe river,
fishing.
from
I
and is
further find
from
situated
valley
Guadalupe river,
por-
year 1912,
year
eastern
witness
1900 to
bordering upon
fishing
Harvey
tion
of said
the foothills
a business of
on Green
T.
beginning
upland.
which mark the
from
month
$50
$100
realized
Lake
margin,
caught
gradually
at
is shallow
fish that he
tho
the sale of
from
lake;
long
coming deeper
for a distance of a
a sailboat
feet
few
used
hundred
long,
depth,
feet
remainder of the
maximum
both
attains its
18 feet
and motoi'boat
draw-
water;
being prac- ing
the
being
bottom of
24 inches of
from 18 to
tically level,
people fishing
average
of an
for him
he had
depth
ordinary
time;
stage
at the
at one.
at
seines
about 4 with
any
dry
fish,
feet.
On occasions
was almost
time the lake
considerable over- said
Guadalupe
depth
(which
flow of the
river
area and
reduced
reason of
occur not
infrequently)
ters of the
caught
greater
the lake is
filled
concentrated and
flood wa- water
river,
time;
quantities
other
and that
than
main source
Harvey
During
of the renewal of
its waters.
oth-
had
’boats
times of while
valley
persons
overflows
motor
sail and
boats
whole
had small
the river
er
foothills, including
the lake
shown
statement
and all of
lake to the
the the
fishing.
submerged.
they
country,
used
I
find
lake of facts
.The
approximately
13 miles in
ordinary
Lake,
contains
condition Green
hav-
and that
greater part
is about
ing
the
ure,
are of
circumference.
4 feet over the
fishing,
susceptible
pleas-
Lake has
“II. Green
used
use
valuable
principally
watering place
boats, provided
belong-
and commercial
boats
stock
ing
to the owners of the
draft.”
lands.
(Tax.
REPORTER
SOUTHWESTERN
with
law,,
common law far as
which the tide ebbed and
*
law as to
to
to
Judge,
—that
McClelland,
1, Ann. Gas.
land. As to
ed. The reason
they
others
fact.
such
and the Ohio.
it a
ed as
reason
and it is one
be
Oil
a
law
in
aptly
selves
wise covers the bed of the lake. Neither
such land has been
not
common
statute in this
declaring
rights.
of'the trial
pellants
gable
evidence,
modified
it is
granted
bordering
the
tue
issued or to their
but has it
n
“Tire effect
Mr. Justice
Mr. Chief Justice
collection
These
[1] The issue in
[2"|
* *
Texas.
this
any
986, Ann.
conditions
R.L.
a
appellants.
land
reason
Tex.
state
because
parties
bat
claims to 'be the
solely by
stream,
rivers as the
question
own. Land cannot
natural, permanent
said,
stream
Bqt
upon the
speaking
which said
ceases
a
in that
description
conditions
S
country, may
put
If the
to make
herein.
covered
is true that
law
could
A.
conveyance
upon
inclosing
But
done
never
it is
Tex.
into
so
they
it is
our local
riparian
153 S.
conveys title
reason of the fact that
expressly
arbitrary
whom
Brown,
Tex.
of fact
grant
system
Cas.
the land
absurd
The
doctrine
so'as
effect
country
why
effective
it
this
existed
adopt
were
this
appurtenant
declared
appurtenance,
Opinion.
assignees,
* * *
Mississippi,
SO feet wide or over to
contention
common
this
lands was not
England,
W.
maxims
act of 1840 was not
Gaines,
they
title to
rights,
appellants plant
no streams
of land on
granted
regard
only to
to Green Hake?
ceases;
state.
conditions
perfection
the common
them
in
1124,
originally
case is
court,
the law never exist
rules. The common
reserves such
flowed, -was
body
certificates,
principles,
said:
contiguous
be
Lake,
are the
fresh
Grigsby
were
sustained
to
the common
said that where
S. W.
provisions
but at
as our
except
in Land Co.
land
L. R.
our
appurtenant
not inconsistent
is
In
to land which
of the common
to
or,
the center of
said:
same learned
the common
not whether
it is because
modified
as has
this test
Made,
people.”
a
Swayne
them,
where
applicable
owners of
extent of
A.
Missouri,
own.
nonnavi
the time
in force
riparian
those in
and not
law as
applied
reason,
to
1915E,
reason
it
other
class
Reib,
them
were
law
vir-
ap-
no
f>y
so
to
is
hold
taining
different.”
surrounding
ship
law of
unfair
trine
rounding
applied
v. Railroad
bordering
said:
The same reason
Fed.
650,
boundaries.
to reserve
bed of the creek. Dutton
in the absence
the area called
the boundaries
ascertained with reasonable
tity may
the law the
tions
therefore
owner
land
thority
inas
statute)
such cases in this state
26 Tex.
Civ.
579,
407.
ment,
able,
excess in
statute,
thought that the conditionshere were so different