NOTE: THE CASE of HEARD V STATE
204 S.W. 2d 344
FOLLOWS AT THE END OF THIS
199 SW 2d 191
STATE et al. v. HEARD et al.
No. 9594.
Court of Civil Appeals of Texas. Austin.
Dec. 18, 1946
146 Tex 139, 204 SW 2d 344
Rehearing Denied Jan. 8,1947.
1. Courts 90 (1)
Judgment 743 (2)
The holding of Supreme Court that bed of navigable river belonged to the state prior to
effective date of Relinquishment Act, and which holding laid down a formula for determining
respective interests of the state and town in sector of river involved, applied to all of navigable
portions of river bed within boundaries of original grant to town, either under doctrine of res
judicata or stare decisis. Vernon's Ann. Civ.St. Art. 5302.
2. Adverse possession 7 (2, 3)
Navigable Water 37 (8)
If there was no excess acreage in original Mexican grant to town, of Refugio of land on
Mission river, then title to all of such river bed within boundaries of original grant passed
under Relinquishment Act to the town, and, if there was an excess, then dependent upon
amount of such excess, title to river bed remained in state or passed in part to town, and,
as to such part as remained in state, limitation would not run in favor of landowners, and
as to such part as vested in town, limitation would run provided landowners' possession,
occupancy, and use met requirements essential to ripen their claim into a 10-year
limitation title.. Vernon's Ann. Civ.St. arts. 5414a, 5517.
3. Adverse possession 13
In order to establish title under 10 year statute of limitations, possession must not only be
actual, but also visible, continuous notorious, distinct, and hostile, and of such a character as to
indicate unmistakably an assertion of a claim of exclusive ownership in occupant. Vernon's Ann.
Civ. St. arts. 5510-5516.
4. Adverse possession 16(1)
To constitute adverse possession, party occupying land must in some way appropriate the
land for some purpose to which it is adapted, and mere occupancy of land without evidence of
intention to appropriate it will not support the statute of limitations. Vernon's Ann.Civ.St. arts.
5510- 5516.
5. Adverse possession 60(l)
In determining whether adjacent owners held title to navigable river bed by adverse
possession, riparian owners could exercise rights of fishing, hunting, watering livestock,
domestic use, and irrigation as against town owning legal title to river bed, without claiming or
needing any title to land in order to do so. Vernon's Ann. Civ. arts. 5510-5516.
6. Adverse possession 60(1)
The laying of pipe line across river bed constituted no evidence of adverse claim of title
to land over which pipes were laid, where no attempt was made to produce or recover oil and gas
beneath the river bed by drilling wells therein, but pipes were laid and used only, for gathering
and transportation of oil and gas produced outside of river bed, and at most the right to lay pipes
or doing so without, permission of owner amounted to no more than assertion of easement over
such lands and easement does not defeat an adverse claim of title. Vernon's Ann. Civ. St. arts.
5510- 5516.
7. Adverse possession 31
Where stream, though navigable in law, was not navigable in fact, and did not constitute
a barrier to passage of livestock to and from riparian lands on either side of it, erection of fences
to keep stock enclosed on land of riparian owners did not indicate assertion of claim of exclusive
ownership of river bed and hence did not constitute notice of adverse possession to town which
was owner of legal title. Vernon's Ann. Civ. St. arts. 5510-5516.
8. Appeal and error 1010(1)
Fact-findings in trial court, supported by substantial evidence, should on appeal be given
same consideration, as would the findings by jury.
9. Navigable water 36(1), 37(8)
Prior to effective date of Relinquishment Act, title to navigable section of Mission river
was in the state, and remained in state or passed in whole or in part to town, and riparian owners
who did not acquire title to such lands by limitation had no interest in division thereof as
between state and town. Vernon's Ann. Civ. St. arts. 5414a, 5510-5516.
10. Boundaries 13
In ascertaining boundaries of river bed of navigable stream, surveyor who deemed “cut
banks” of stream as extending from normal water level in bed to top of prairie level bank, above
which floodwaters would leave banks and overflow adjacent lands, and then fixed boundary line
halfway between such points, included more land than was legally contained within such river
bed, since bed of stream includes area which is kept practically bare of vegetation by waters of
river from year to year although parts of it are dry for months at a time.
Appeal from District Court, Travis County; Chas. 0. Betts, judge.
Suit by the State of Texas and another against Mrs. Fannie V. W. Heard and others, in trespass
to try title to land, wherein the W. R. R. Oil Company and another intervened. From a judgment,
the plaintiffs appeal.
Reversed and remanded with instructions.
Grover Sellers, Atty. Gen., Harris Toler, Asst. Atty. Gen., Wm. J. Fanning, Sp. Asst.
Atty. Gen., Zellner Eldridge, of Dallas, (Sanford, King, Estes & Cantwell and Conan Cantwell,
all of Dallas, Davis, Hall, Clemens & Knight and J. R. Davis, all of San Antonio, Critz,
Kuykendall, Bauknight, Mann & Stevenson, of Austin, of counsel), J. R. Davis and J. C. Hall,
both of San Antonio; and Richard Critz and F.L Kuykendall, both of Austin, for appellants.
Blades, Chiles, Moore & Kennerly, Wm. Sears McGee, Fred W. Moore, John F. Heard,
and Hunt & Lawler, by James F. Lawler, all of Houston, and Geo. E. Shelley, of Austin, for
appellants.
BAUGH, Justice.
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 riverbed 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 5, Act, and
under said Act, title to the riverbed 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,
129 Tex. 349, 103 S.W.2d 728, had not been complied with;
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;
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 finding 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.
[1, 2] 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, 129 Tex. 349, 103 S.W.2d
728, and by the trial court in the instant case, that the portion of the River here involved was
navigable under Art. 5302, Vernon's Ann. Civ. St. The bed thereof consequently be- longed to
the State prior to the effective date of the Relinquishment Act; and subsequent to that time was
governed by the provisions of that Act. These questions were all adjudicated by the Supreme
Court in Heard v. Town of Refugio, supra, and that case reversed to give the State an opportunity
to assert its claim to the river bed; and to determine under the formula laid down by the Supreme
Court -in that case, the respective interests of the State and the Town in the sector of the river
bed there involved. The holding of the Supreme Court in that case, and the formula therein laid
down, was clearly intended to apply, and we think of necessity must apply, to all of the navigable
portion' of said river bed within the boundaries of the Original grant, either under the doctrine of
res adjudicate or stare decisis. For our Purposes here we deem it unnecessary to determine
which. If as found by the trial court in the instant case, there was no excess acreage in the
original grant, then title to all of said river bed within the boundaries of the original grant,
passed, under the Relinquishment Act and subject to its terms, to the Town oil March 3, 1929. If
there were an excess in said grant, then, dependent upon the amount of such excess, title to the
riverbed either remained in the State, or passed in part to the Town. See Heard v. Town of
Refugio, supra. As to such part, if any, as remained in the State limitation would not run in favor
of appellees. Art. 5517, R.C.S. As to such as vested in the Town -Under said Act, limitation
would run in favor of appellees, provided their possession, occupancy and use met the
requirements of the statutes and decisions essential to ripen their claim into a ten-year limitation
title.
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 1919 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 is 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
the riverbed, 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.
[3] 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, 61 Tex. 166, as necessary to deprive an owner of legal title to his
property by an adverse claimant, is, in addition to being continuous and uninterrupted for the
statutory period, that such possession must be "actual, notorious, distinct and hostile, and of such
character as to indicate unmistakably an assertion of a claim of exclusive ownership in the
occupant." That holding was approved again by judge Gaines in Evans v. Templeton, 69 Tex.
375, 378, 6 S.W. 843, 5 Am. St. Rep. 71, and has continuously prevailed since. See Burton v.
Holland, Tex. Civ. App., 278 S.W. 2i2; Churchman v. Rumsey, Tex. Civ, App., 166 S.W.2d 960,
962; Epps v. Finehout, Tex. Civ. App., 189 S.W.2d 631, 632.
[4] 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, others, Wingfield v. Smith, Tex.Civ.App., 241 S.W. 531
(writ ref.); Port City v. Peck, Tex.Civ.App., 42 S.W.2d 275; Young v. City of Lubbock,
Tex.Civ.App., 130 S. W.2d 418; 2 Tex. Jur., §§ 46-A7, pp. 88-91, and cases therein cited. Such
is the rule announced in the cited authorities. But none of those cases involved riverbeds of
navigable streams, which both in the character of the ands involved and the uses to which they
may be adapted, differ essentially from uplands which are adaptable to grazing or cultivation. In
Nona Mills v. Wright, 101 Tex. 14, 102 S.W. 1118, 1121, Judge Brown announced the rule as
follows: "To constitute adverse possession, the party occupying the land must in some wav
appropriate the land for some purpose to which it is adapted. Mere occupancy of land without
any evidence of an intention to appropriate it will not support the statute of limitation."
(Emphasis ours.) See; also Hardy v. Bumpstead, Tex. Civ. App., 41 S.W. 2d 226, 76 A.L.R.
1488.
[5] Under these authorities what then were the uses to which said riverbed 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, 1161 Tex. 82, 286 S.W. 458 and Diversion Lake Club v. Heath, 126 Tex.
129, 86 S.W.2d 441; and as shown by the proof herein, was either covered by water or, when the
steam was low, left in sand bars devoid of vegetation. It was not therefore adapted to grazing, for
the simple reason that nothing grew therein upon which livestock could graze. Nor do we find
any evidence that livestock ever used such riverbed for grazing. The only purpose to which it
was adapted, and for which appellees could have used it, was for fishing, hunting, watering
livestock, domestic use and irrigation. It being in law a navigable stream, appellees had and
could exercise as riparian owners all these rights and privileges as against the Town without
claiming or needing any title to the land in order to do so. Such uses and enjoyment could not be
denied them by the owner of the legal, title to such riverbed. Motl v. Boyd, supra; State v.
Bradford, 121 Tex. 515, 50 S.W.2d 1065; Diversion Like Club v. Heath, supra. Their exercise of
these rights then was neither inconsistent with, adverse, nor hostile to, the Town's title. Claim of
ownership if of title was in no wise essential to the assertion or enjoyment of any such rights; and
they were vouchsafed by law to appellees regardless of who owned the land in the riverbed.
Ownership not being in anywise necessary to the existence or enjoyment of such rights; how can
it be said that the mere exercise of such rights given, them by law would be any notice to the
Town of an adverse claim of title? Their exercise, therefore, not being adverse nor hostile to the
Town's ownership, such use could not constitute any notice to the Town that its title was being
challenged.
[6] 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 riverbed 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 riverbed. Almost 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 all easement does not constitute
nor defeat all adverse claim of title. Young V. City of Lubbock, Tex. Civ. App., 130 S.W.2d 418,
420; 2 C.J.S. Adverse Possession, § 51, p. 568; 1 Am. Jur., § 138, p. 872.
[7] 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 all 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 the 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 riverbed 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
riverbed 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 oil 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 riverbed.
We think the court erred in so finding.
[8] We agree with appellee 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.
[9] Under the conclusions 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 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 there of 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, 129 Tex. 349, 103
S.W.2d 728, involving different lands, but constituting the bed of a stream navigable in law, and
the facts relating to title being without substantial dispute, this case should be determined under
well settled principles of law relating to river beds, and to titles by limitation, as laid down in
Heard v. Town of Refugio and other Supreme Court decisions, 'regardless of the disposition of
the particular lands involved in that suit.
[10] 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 1, to
such location was made by the testimony of the surveyor and several photographs of the section
of the riverbed 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 n 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, 116 Tex. 82, 286
S.W. 458, 467, further clarified in Diversion Lake Club v. Heath, 126 Tex. M, 86 S.W.2d 441,
reannounced and applied in Heard v. Town of Refugio, supra; State v. R. E. Janes Gravel Co.,
Tex.Civ.App., 175 S.W.2d 742; Maufrais v. State, 142 Tex. 559, 180 S.W. 2d 144, 147. The
difficulty encountered in applying the rule stated to the physical facts on the ground. It seems
clear that in the instant case the surveyor deemed the "cut banks" of the stream as extending
from the normal water level in the bed of c the stream to the top of the prairie level bank, above
which the floodwaters would leave said banks and overflow the adjacent lands; and then fixed
the boundary line half way between these two points. At some places the vertical distance
between two such points appears to be twenty or more feet. The record shows the major portion
of what the surveyor deemed cut banks is covered with substantially the, same character of
vegetation, brush, trees and other growth, as are the uplands. Under the cases above cited, with
which the surveyor stated he was familiar and had studied, we think his survey included more
land than is legally contained within such riverbed.
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, 260 U.S. 606, 623, 43 S. Ct.
221, 225, 67 L.Ed. 428. It is stated in Diversion Lake Club v. Heath that the Texas Supreme
Court in defined the line between public and private lands along navigable streams in Texas
deliberately adopted the rule laid down in Oklahoma v. Texas. one of the Commissioners, whose
recommendation was adopted by the United States Supreme Court in Oklahoma v. Tex- as,
testified in State v. R. E. Janes Gravel Co. (idem Maufrais v. State) as to the application on the
ground of that formula. We think it is clear that the "cut banks" of the stream referred to and
defined in Oklahoma v. Texas, which confine the stream, and the medial line of which mark its
boundaries, do not extend-to the top which marks the prairie level; but that the court intended to
confine such "cut banks" to the water washed surface thereof beginning at water level at normal
flow and extending outward and upward to a point or a line on said bank which is habitually
washed during the year by the variation up and down in such flow caused by the normal rains.
That is, such portion of the bank that during the course of the year, is ordinarily washed free of
vegetation. Its location and vertical altitude above the low waters in the bed of the stream during
droughts, or as they appear after the surface rain waters have drained off and flowed down the
stream, Will, of course, vary with the width of the bed of the stream and the degree of the
acclivity of the banks at any given point. That the top of such cut bank, or water washed bank, is
not the same as the top of the bank above which the waters of the stream leave its channel and
overflow the riparian lands, is made clear by the following language of the United States Court
in Oklahoma v. Texas: "When we speak of the bed we include all of the area which is kept
practically bare of vegetation by the wash of the waters of the river from year to year in their
onward course, although parts of it are left dry for months at a time; and we exclude the lateral
valleys, which have the characteristics of relatively fast land and usually are covered by upland
grasses and vegetation, although temporarily when the river is at flood." (Emphasis ours.)
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.
HEARD et al. v. STATE et al.
No. A-1 162.
Supreme Court of Texas.
July 19, 1947.
Rehearing Denied Oct. 1. 1947.
1. Judgment 485
A void judgment is subject to attack in a collateral proceeding, but proof that judgment is merely
erroneous is not sufficient ground to vitiate it.
2. Judgment 485
Where neither State nor town of Refugio questioned a judgment holding that town owned an
undivided four-fifths and state an undivided one-fifth of bed of navigable river within original
grant to town of Refugio by Mexican government in 1834, and it appeared that trial court, in
entering the judgment, had jurisdiction of subject matter and parties in that case and judgment
showed on its face that it was rendered after a hearing and upon evidence, judgment was not
void, so as to be subject to collateral attack.
3. Adverse possession 7(2)
Title to that part of bed of navigable river held by state could not be acquired by an adjacent
owner by limitation. Vernon's Ann. Civ. St. arts. 5510, 5517.
4. Adverse possession 13
To constitute adverse possession sufficient to deprive owner of legal title to his property by
adverse claimant, such possession must be continuous and uninterrupted for statutory period and
must be actual, notorious, distinct and hostile, and of such character as to indicate unmistakably
an assertion of a claim of exclusive ownership in the occupant. Vernon's Ann. Civ. St. arts. 5510-
5516.
5. Adverse possession 11
To constitute adverse possession, party occupying land must in some way appropriate the land
for some purpose for which it is adapted, and mere occupancy of land without evidence of
intention to appropriate it will not support claim under the statute of limitation. Vernon's Ann.
Civ. St. arts. 5510-5516.
6. Adverse possession 7(2)
If laying of pipe lines across bed of navigable river gave any claim by adverse possession to river
bed as against title held by town, it would be at most only an easement on the land where pipe
line was laid. Vernon's Ann. Civ. St arts. 5414a, 5510-5516, 7466, 7467; Vernon's Ann. St.
Const. art. 16, § 59, subd. a
7. Navigable waters 36 (4)
To sustain claim of an easement on bed of navigable river as against title held by town by reason
of laying of pipe lines across river bed, the evidence must be clear and Positive, and must show
that claimant in- tended to hold adverse title to river bed as a right and not as a mere privilege.
Vernon's Ann. Civ. St. arts. 5414a, 5510-5516, 7466, 7467; Vernon's Ann. St. Const. art. 16 §
59, subd. a.
8. Adverse possession 31
Where stream, though navigable in law was not navigable in fact, and did not constitute a barrier
to passage of livestock to and from riparian lands on either side of it, erection of fences to keep
stock enclosed on land of riparian owners did not indicate assertion of final exclusive ownership
of river bed and hence did not constitute notice of adverse possession to town which was owner
of legal title to four-fifths of the river bed. Vernon's Ann. Civ.St. arts. 5414a, 5510-5516, 7466,
7467; Vernon's Ann. St. Const. art. 16, § 59, subd. a.
SLATTON, BREWSTER and FOLLEY, dissenting.
Error to Court of Civil Appeals of Third Supreme Judicial District.
Suit by the State and another against Mrs. Fannie V. W Heard and others in trespass to try title to
land, wherein the W. R. R. Oil Company and another intervened. To review a judgment of the
Court of Civil Appeals, 199 S.W.2d 191, reversing judgment entered by District Court and
remanding cause with instructions, the defendants bring error judgment of Court of Civil
Appeals affirmed and cause remanded to District Court with instructions.
Hunt & Lawler, and John F. Heard, all of Houston, and Dan Moody, J. B. Robert- son and
George E. Shelley, guardian ad litem, all of Austin, for petitioners Davenport and others.
Powell, Wirtz, Rauhut & Gideon, of Austin, and Blades, Chiles, Moore & Kennerly, Fred W.
Moore and Wm. Sears Mc- Gee, all of Houston, for petitioner Houston Oil Co.
Price Daniel, Atty. Gen., and F. D. Brown, and Ben H. Rice, 111, Asst. Attys. Gen., for
respondent State.
Davis, Hall, Clemens & Knight, J. R. Davis and J. C. Hall, all of San Antonio, and Critz,
Kuykendall, Bauknight, Mann & Stevenson, Richard Critz and F. L. Kuykendall, all of Austin,
for respondent town of Refugio.
Zellner Eldridge, Sanford, King, Estes & Cantwell, Conan Cantwell, Shank & Stokes and Ralph
Shank, all of Dallas, for W. R. R. Oil Co.
Sanford, King, Estes & Cantwell and Conan Cantwell, all of Dallas, for respondent Jack E.
Gaines.
SHARP, Justice.
The State of Texas and the Town of Refugio, a municipal corporation created under the laws of
Texas, brought this suit against Mrs. Fannie V. W. Heard, Houston Oil Company, and others, in
trespass to try title to 15.65 acres of land, a part of the bed of Mission River in Refugio County.
The W. R. R. Oil Company and Jack F., Gaines, owners of an oil and gas lease on the land sued
for, intervened. The defendants claimed title to said land under the Ten-year Statute of
Limitation, Vernon's Ann.Civ.St. art. 5510. by virtue of the claim acquired by the Town of
Refugio under the provisions of Article 5414a, Vernon's Annotated Civil Statutes, commonly
referred to as the Small Bill. The trial was before the court without a jury, and judgment was
rendered that the plaintiffs 'take nothing, and that the defendants be quieted in their limitation
title to all the land involved. An appeal was taken, and the Court of Civil Appeals reversed and
remanded the cause with instructions, holding that the evidence did not support the judgment of
the trial court. 199 S.W.2d 191.
The land in suit is within the boundary line; of a four league grant made in 1834 by the State of
Coahuila and Texas, Republic of Mexico, and is a part of the bed of Mission River, which
traverses the original four league grant. The grant was surveyed for the Town of Refugio in the
form of a square, of which the public square was the center. The boundary lines were indicated
by natural objects and by certain artificial landmarks. Town of Refugio v. Byrne, 25 Tex. 193.
The Town of Refugio thereafter sold and conveyed most of the land granted. Petitioners Heard
et al. own a tract within the grant consisting of 600 acres. The Mission River runs almost
through the center of this tract. The land in suit however, is only a part of the bed within the
Heard tract, and is the most western 15.65 acres. The eastern 15 or 16 acres are not involved in
this suit.
Petitioners do not claim title to this land under a grant or patent. They claim title to the portion of
the bed of Mission River involved here solely by limitation. They admit title to the bed of
Mission River in the State of Texas prior to March 3, 1929, the effective date of the Small Bill.
Article 5414a. They admit title in the Town of Refugio subsequent to such date under the
provisions of the Small Bill, and that they have no title unless they established one by the Ten-
year Statute of Limitation.
The case of Heard v. Town of Refugio, 129 Tex. 349, 103 S.W.2d 728, involved the title to the
bed of Mission River, which flowed through the land granted to the Town of Refugio by the
Mexican Government. In that case the history of this grant was exhaustively reviewed by justice
Smedley, speaking for this Court, and it was held that Mission River is a navigable stream and
that the title to that portion of the bed of Mission River which lies with- in the outer boundaries
of the four leagues of land surveyed for the Town of Refugio in 1834 did not pass to the town by
or under the grant then made, but that such title was acquired and held by the State of Texas. It
was also held that only the Town of Refugio and the State of Texas held any interest in the title
to the bed of Mission River within the four-league grant. If the Town of Refugio acquired any
interest in the title- to the bed of Mission River, it was under the Small Bill Article 5414a.
The case was remanded to the district court for determination of the rights of the State of Texas
and the Town of Refugio in the riverbed under the provisions of the Small Bill. Specific
instructions to guide the trial court in determining such rights were set out in the opinion. It was
ordered that if the State of Texas became a party to the suit and the issue was determined in
conformity with the rule announced by this Court, judgment would be rendered partitioning the
entire riverbed within the tract between the State of Texas and the Town of Refugio.
The State of Texas became a party to the suit, and in its pleadings claimed the bed of Mission
River within the four-league grant. The Town of Refugio likewise claimed the entire riverbed.
The issue was joined between the State of Texas and the Town of Refugio. In view of the
holding of this Court that only the State of Texas and the Town of Refugio had any title, right, or
interest in the bed of Mission River within the original grant, all other parties were dismissed
from that suit. Thereafter the case was called for trial, and the trial court, without a jury, heard
the pleadings and the evidence, including the testimony of P. C. Young, County Surveyor of
Refugio County, who testified that the land granted to the Town of Refugio was supposed to
contain four leagues or 17,713.6 acres of land; that he had made an office survey of the grant
from reliable data available to him, and found that the total acreage within the boundary lines,
including the river bed, was 17,740 acres, or an excess of 26.4 acres; that the total acreage in the
river bed within the grant was 132.29 acres; and that it was necessary to give to the Town of
Refugio 105.89 acres out of the bed to make up its complement of 17,713.6 acres, so that the
Town of Refugio would own four-fifths of that river bed and the State one-fifth. The trial court
on December 17, 1937. entered judgment that the Town of Refugio. held title to four-fifths and
the State of Texas held title to one-fifth of the bed of Mission River within the original grant to
the Town of Refugio by the Mexican Government. No appeal was taken from that judgment, and
it became final.
In this suit respondents alleged that on January 1, 1938, the Town of Refugio owned an
undivided four-fifths and the State of Texas an undivided one-fifth of the bed of Mission River
within the grant, same being subject to an oil gas, and mineral lease emanating from respondents,
and which mineral lease is now vested in Jack E. Gaines and the W. R. R. Oil Company as
assignees.
Petitioners do not assert that they held any title to the bed of Mission River at the time
judgment was rendered on. December 17, 1937, in Cause No. 1172. They claim that they are not
bound by the determination of the title involved in that suit, because they were not parties
thereto, and that the judgment entered therein was void. They assert however, that they hold title
to all this land by virtue of the Ten-year Statute of Limitation. The trial court held that the State
of Texas held no interest in. this land, and entered judgment for petitioners on this issue.
(1) Neither the State of Texas nor the Town of Refugio questioned the judgment rendered on
December 17, 1937. They accepted that judgment as fixing their rights in the bed of Mission
River, and they are now asserting such rights in this suit. Under the ruling of this Court in the
case of Heard v. Town of Refugio, supra, the trial court unquestionably had jurisdiction of the
subject matter and the parties in that case. The judgment shows on its face that it was rendered
after a hearing and upon evidence. If the judgment of the trial court is void it is subject to attack
in a collateral proceeding; but if the judgment be merely erroneous, that is not sufficient ground
to vitiate it. Martin v. Sheppard et al., Tex. Sup., 201 S.W.2d 810; Commonwealth of
Massachusetts v. Davis, 140 Tex- 39S, 168 S.W.2d 216.
The recent case of Martin v. Sheppard et al., supra, involved the validity of a judgment in which
Mrs. Martin and her children recovered the sum of $12,500 against the State. No appeal was
taken from that judgment. Justice Hickman, speaking for the Court, said (201 S.W.2d 812) "The
State takes the position that the judgment of the trial court is void. If that court did not have
jurisdiction, both of the parties and of the subject matter of the litigation, the judgment is void
and subject to attack in this collateral proceeding. If, on the other hand, the court had a
jurisdiction of the parties and the subject matter, the judgment is not void, however erroneous it
may be."
(2) It is undisputed that petitioners claim only the title held by the Town of Refugio. If they
acquired any interest in the riverbed by limitation it was subsequent to the judgment rendered on
December 17, 1937. If that judgment is void, the title to the riverbed is undetermined, and it is
held by both the State of Texas and the Town of Refugio. If the judgment is not void, then the
Town of Refugio and the State of Texas are bound by the judgment. We hold that the judgment
entered by the District Court of Refugio County on December 17, 1937, vesting title in the Town
of Refugio and the State of Texas, is a valid judgment.
Petitioners' theory is that by the Small Bill the Town of Refugio on March 3, 1929, acquired
from the State of Texas all rights and title to the portion of the river bed here involved, and that
Mrs. Fannie V. W. Heard, by the use of the river bed in connection with the pasturing of stock on
her riparian lands, acquired the fee simple title from the Town of Refugio by adverse possession
before this suit was filed on March 6, 1939.
In 1917 Section 59a of Article XVI of the Constitution was adopted. That part of the
Constitution specifies certain things as public rights and duties. These rights and duties pertain to
the preservation of waters of rivers and streams for irrigation, riparian, and other uses, described
therein, as expressed in Article 7466, Vernon's Annotated Civil Statutes, which reads as follows:
"The conservation and development of all of the natural resources of this State, including the
control, storm preservation and distribution of its storm and flood waters, the waters of its rivers
and streams for irrigation, power and an other useful purposes; the reclamation and irrigation of
its arid, semi-arid and other kinds needing irrigation; the reclamation and drainage of its
overflowed lands, and other lands needing drainage; the conservation and development of its
forest, water and hydro- electric power; the navigation of its inland and coastal waters, and the
preservation and conservation of all such natural resources of the State are each and all hereby
declared public rights and duties." Acts 1895, p., 21 ; G. L, vol. 10, p. 751 ; Acts 1913, p. 358;
Acts 1917, p. 211; Acts 1921, p. 233. Furthermore, Article 7467, Vernon's Annotated Civil
Statutes, Acts of 1921, provides that the "waters of the ordinary flow and underflow and tides of
every flowing river or natural stream, and the storm, flood or rain waters of every river or natural
stream, * * * within the State of Texas, are hereby declared to be the property of the State, * *
*." The foregoing rights were retained by the Small Bill.
[3] The State holds title, under the judgment entered in Cause No. 1172, to one-fifth of the bed
of Mission River, and, of course, title to that part cannot be acquired by limitation. Article 5517,
Vernon's Annotated Civil Statutes.
[4] The validity of the Small Bill was sustained by this Court in State v. Bradford, 121 Tex.
515, 50 S.W. 2d 1065. That part of the riverbed involved here is not used as a street, alley, or
public place by the Town of Refugio, and Article 5517, Vernon's Annotated Civil Statutes, does
not apply. Articles 5510-5516, Vernon's Annotated Civil Statutes, describe how title to property
may be acquired by adverse possession. The courts of this State have consistently announced the
rule that to constitute adverse possession sufficient to deprive an owner of legal title to his
property by an adverse claimant, such possession must be continuous and uninterrupted for the
statutory period, and must be "actual, notorious, distinct and hostile, and of such character as to
indicate unmistakably an assertion of a claim of exclusive ownership in the occupant."
Satterwhite v. Rosser, 61 Tex. 166; Evans v. Templeton, 69 Tex. 375, 378, 6 S.W. 843, 5 Am.
St. Rep. 71; Hardy v. Bumpstead, Tex.Com.App., 41 S.W.ZD 226, 76 A.L.R. 1488.
[5] Justice Brown, speaking for this Court, in Nona Mills Co. v. Wright, 101 Tex. 14, 102 S.W.
1118, 1121, in discussing the character of possession required to support a title by limitation,
said: "To constitute adverse possession, the party occupying the land must in some way
appropriate the land for some purpose to which it is adapted. Mere occupancy of land without
any evidence of an intention to appropriate it will not support the statute of limitation."
The strict rule announced above applies to land not encumbered with the rights of the public or
riparian owners. We are here dealing with the bed of a navigable stream, in which the State, the
public, and the riparian owners have certain valuable rights, and certainly the rule is no less strict
with such rights involved. Those rights have been exhaustively discussed in Motl v. Boyd, 116
Tex. 82, 286 S.W. 458; Diversion Lake Club v. Heath, 126 Tex. M, 86 S.W. 2d 441; and State v.
Bradford, 121 Tex. 50 S.W.2d 1065, 1077. The Small Bill has specifically protected those rights.
This Court in the Bradford case, in discussing those rights, said: "The grant does not impair any
mineral rights reserved by the state. No excess acreage shall be recognized under this law. Again
the state's title to the sand and gravel in the beds of navigable rivers is in no way impaired. The
reservation to the state and the public of the waters of streams would, under well-established
rules of construction, carry with the reservation all things necessary to the practicable and
substantial use of and enjoyment of the things reserved. It carries with it the power to construct
dams or other works upon or across the bed of the river in order that the public might enjoy the
rights of irrigation or other use of the waters. The decisions of this state hold that grants for
public purposes will be liberally construed so as to fully effectuate such purpose. It is equally
true that reservations for public purposes in a grant will be liberally construed so as to give full
effect to reservation, and that the reservation named rig4t will necessarily carry any use of the
property to effectuate the reserved.
The testimony introduce as follows: From 1891 down to the time of the trial, the Heard land
was used for grazing purposes, and the Heard livestock grazed thereon. It is undisputed that the
land in controversy was not separately fenced, but there were fences separating the Heard 600
acre tract from all the surrounding adjoining land. The fences on the east and west sides of the
Heard land crossed the stream with "water gaps," and these “water gaps" were so constructed
that they would unhook in case of high water. The fences did not touch the land in controversy
except on the west end, and the fences on the west side of the Heard land crossed the river with
"water gaps" and touched the land in controversy on its west side. From 1904 to the time of the
trial there was never a time when somebody did not have cattle running on the land.
Mission River, though navigable in law, was not navigable in fact. It did vent the passage of
stock to and lands of the riparian owners on each side of the stream, and the river without a
across it would not have prevented the passage of cattle and other live stock up down the bed of
the river. To prevent their cattle from leaving their land, it necessary for petitioners to erect
fences across the stream, as was done, or to erect fences on each side of the river, so as to
enclose their land and hold their live stock thereon. If they had erected fences on both sides of
the river, they would have thereby deprived themselves of their riparian rights to the use of the
river.
The evidence further shows that the Houston Oil Company installed a pipeline
across the riverbed, which extended from its wells on the north side of the river down to its tank
farm on the Rooke lease. It is not shown just how and where the pipeline was installed across
the riverbed. The Union Producing Company also had a pipeline crossing the river, but
disclaimed any interest in the land. No oil or gas wells were drilled in the riverbed, and the pipe
lines were used only for the gathering and transportation of oil and gas produced on land outside
of the river bed.
(6-7) Under Article 1497 it is provided oil company "shall have the right to lay its pipes and
pipelines across and under any** stream in this State*** This Article was originally enacted in
1899, and it was enacted in its present form in 1919. It was the law in 1929 when the Small Bill
was enacted, which preserved to the public certain rights in the waters of streams. It is not shown
whether such pipeline owned by petitioners was operated under Article 1497 or as a private
pipeline. However, if the laying of a private pipeline by petitioners gave them any claim to the
riverbed as against the title held by the Town of Refugio, it would be at most only an easement
on the land where the pipeline was laid. To even the claim of an easement on the river bed, the
evidence must be clear and positive, and must show that the claimant intended to hold adverse
title to the river bed as a right and not as a mere privilege. 15 Tex. Jur. 791, s 21.
(8) In testing the sufficiency of the evidence to support the claim of petitioners to the river bed
by limitation, it must be kept in mind that under the law this river is a navigable stream, and that
the State, the public, and riparian owners have certain rights therein. 'The State owned title
to the river bed prior to the enactment of Small Bill, and still holds title to one-fifth the river bed
and certain rights for the benefit of the public. Those have already been described. This river bed
was used and occupied when the State owned it prior to the enactment of Small Bill, and little
change, if any, has been made in the use and occupancy thereof since then. Petitioners had a
right then and have the right now, to use and occupy for certain purposes. The Town of Refugio
owns title to an undivided four-fifths interest in the riverbed, but that does not include the rights
in the stream retained by the State for the benefit of the public. The Town of Refugio
had no control over the right held by the State, and they could not be acquired by limitation.
Furthermore, the Town of Refugio could not have fenced off the river bed without interfering
with the rights of riparian owners; and the riparian owners, on account of the width and depth of
the river and the nature of the land, could not have enclosed their cattle an their lands and fully
enjoyed their right as riparian owners without extending their fences across the river bed. The
evidence shows that Mrs. Heard pastured cattle on her riparian land, and that fences separated
her land from that of her neighbors, crossing the river with a "water gap," so that her cattle could
be kept on her land and have access to the river. Mm Heard was availing herself of the rights
given her as riparian owner, and was using the river bed as a convenience and a privilege, and
not under a claim of right inconsistent with and hostile to the claim of the Town of Refugio. She
was not permitted to obtain title to the riverbed by limitation by the use of such riparian rights.
When all the evidence is considered in the most favorable light to petitioners, such evidence
fails to meet the rule described in Article 5515, which reads as follows: "'Adverse possession is
an actual and visible appropriation of the land, commenced and continued under a claim of right
inconsistent with and hostile to the claim of another."
The Court of Civil Appeals correctly held that the uncontroverted facts as shown by the record
would not sustain the judgment of the trial court in vesting title by limitation in petitioners.
The Court of Civil Appeals also held that the survey of the river bed was not made in
accordance with the rule announced by this Court in Motl v. Boyd, supra; Diversion Lake Club
v. Heath, supra; Heard v. Town of Refugio, supra; and Maufrais v. State, 142 Tex. 559, 180
S.W.2d 144. For this reason the Court of Civil Appeals reversed and remanded the cause with
instructions to the trial court to cause the portion of the river bed involved here to be correctly
resurveyed, at the cost of appellants, who are respondents here, in accordance with the rule
announced by this Court the cases above cited. We approve this holding-
This Court holds that the judgment of the trial court entered on December 17, 1937, that the
Town of Refugio held title to four-fifths and the State of Texas held title to one-fifth of the bed
of Mission River, within the original grant of the Town of Refugio by the Mexican Government,
is valid and such title is hereby quieted.
This cause is remanded to the district court with instructions to have the area of the river bed
involved surveyed in accordance with the rule announced by this Court in the cases above cited,
such resurvey to be at the cost of the respondents; and when the proper boundary lines shall have
been established by such resurvey, judgment is to be entered for respondents for their respective
interests in the river bed.
SLATTON, BREWSTER, and FOLLEY, JJ., dissenting. SLATTON, Justice (dissenting).
In my opinion the evidence of petitioners is sufficient in law to support the trial courts
findings of title under the ten-year statute of limitation.
If the Court of Civil Appeals was dissatisfied with the weight or sufficiency of the evidence, it
had the power to reverse the trial court’s judgment and remand the cause for another trial, but in
my opinion it had not the right to render a judgment against the petitioners.
The trial court made, among other, the following findings:
“That the original grant to the Town of Refugio contained, including the river bed,
exactly four leagues of land;
“That consequently on March 3, 1929, the effective date of the Relinquishment Act
(Small Bill) and under said Act, title to the river bed vested in the town; and,
“That consequently on March 3, 1929, the effective date of the Relinquishment Act
(Small Bill) and under said Act, title to the river bed vested in the town; and,
“That continuously after said March 3, 1929, petitioners had said lands enclosed by good
fences under claim of ownership, which was adverse, open, visible, notorious and hostile
to said town.”
Specifically, the trial court found that on said date the land here involved was fully enclosed in
good fences capable of turning cattle, which fences crossed the Mission River and enclosed the
same and defendants, maintained these fences in good condition for a period of ten consecutive
years after March 3, 1929, and prior to the filing of this suit on March 6, 1939, continuously
using said land during that period for the grazing of cattle and the Houston Oil Company of
Texas as lessee under a mineral lease which covered the bed of said river here involved asserted
a determinable fee in said river bed, paying taxes thereon before they be- came delinquent; that
the Town of Refugio therefore on March 3, 1929, had notice of defendants' claim of ownership,
which was adverse, open, visible, notorious and hostile to the Town of Refugio during all of said
ten year period, and defendants and their privies in title had said property so enclosed in good
fences, maintaining same by fence riders and other agents continuously since 1904.
The mineral lease to the Houston Oil Company was executed in 1925 and was duly recorded in
the deed records of Refugio County on October 3, 1925. An amended lease was recorded later, in
October, 1928. The evidence shows without dispute that the oil company, prior to and during
said ten-year period, drilled and operated wells producing oil and gas from the lands included in
the lease. During that ten-year period the oil company drilled some twenty-four wells under its
lease. One of the wells was located probably within one hundred feet of the thread of the stream.
The wells were located on the north and to the south of the river, and some of them are situated
close enough to make it appear reasonably certain that the wells drained oil from under the bed
of the river. The leasehold was operated by the oil company as a unit.
The petitioners did not establish a limitation title to the land or to the minerals against the
State, but under the Small Bill the State's title to the bed of the river was relinquished to the
Town of Refugio. Thus on the effective date of the Small Bill the continued use and possession
of the surface owners and their lessees was notice to the Town of Refugio. In the case of
Wingfield v. Smith, Tex. Civ. App., 241 S.W. 531, 533, writ refused, the adverse claimant
fenced the land involved while the land was owned by the State. After the State of Texas
awarded the land to another, the adverse claimant continued to claim the enclosed land for a
period of more than ten years after the award of the State. The court used the following language
in disposing of the awardees claim:
"It is next contended that, appellee having placed the fence on the land while it was
owned by the state, he acquired no right or title in the fence, and when the land was
awarded by the state to appellant the fence became his property, and its further use by
appellant for enclosing the land in controversy would not give him exclusive possession
of the land north of the fence, because the existence of the fence on the land would not
give appellant notice that the land north of the fence was enclosed with other lands of
appellee and was held and claimed by him.
"It seems to us that to state this contention makes its unsoundness obvious. Of course, the
title to the fence passed to appellant with the land; but it continued to enclose the land on
its north side with the other land of appellee, and when appellant allowed this enclosure
to continue and appellee to have the exclusive use and enjoyment of the land, claiming it
as his own for more than 10 years after it was awarded to appellant by the state, such
possession of appellee ripened into title. Appellant was bound to take notice of the use
and possession of the land by appellee."
It is readily seen that the same principle is applicable to the Town of Refugio. We may
paraphrase the expression, the Town of Refugio was bound to take notice of the use and
possession of the land by the surface owners and their lessee, the oil company.
Moreover, the fencing of an alley in an incorporated town has been held to be notice to the
county of an adverse limitation claim. Guadalupe County v. Poth, Tex. Civ. App., 163 S.W.
1050.
It is believed that the use of the land by the oil company under its lease, which was of record
and in which the riverbed was included within the lease, the acts of the oil company in drilling
oil wells, the running pipelines, and of ways over and across the thread of the stream, show an
assertion of ownership sufficient to notify the world of its adverse claim. That oil wells were not
drilled in the river bed is immaterial when the adjacent wells to the river were close enough to
drain oil from under the stream, and particularly is this true where, as here, the entire lease of the
oil company was operated as a unit.
That title was obtained under adverse possession under the authoritative decisions in this state
is clearly shown from the following authorities: Jones v Siler, 129 Tex. 18, 100 S.W. 2d 352;
Kilpatrick v. Gulf Production Co., Tex.Civ. App., 139 S.W.2d 653; Laird v. Gulf Production
Co., Tex.Civ.App., 64 S.W.2d 1080; Leverett v. Leverett, Tex. Civ. App. 59 S.W. 2d 252;
Broughton v. Humble Oil & Refining Co., Tex. Civ. App., 105 S.W.2d 480; Crawford v.
Humble Oil & Refining Co., Tex. Civ.App., 150 S.W.2d 849.
The title is so acquired do not militate against the navigability of Mission River; nor do they
preclude the ordinary riparian rights of the owner of uplands contiguous to a navigable stream.
The primary and dominant purpose of the Small Bill was to relinquish unto the citizen the
minerals. under the beds of streams like the Mission River where the citizen had been awarded a
specific number of acres and it required the acreage contained in the bed of the streams to
complete the acreage awarded to him.
For the reasons stated, I respectfully enter my dissent to a contrary holding of the majority.
BREWSTER and FOLLEY, JJ., join in this dissent.