# State v. Lain

> Texas Supreme Court · July 19, 1961 · 162 Tex. 549

URL: https://www.frixlaw.com/law-library/cases/9774588

## Case

- **Full name:** The State of Texas, Et Al v. T. W. Lain, Et Al
- **Court:** Texas Supreme Court
- **Decided:** July 19, 1961
- **Citations:** 162 Tex. 549; 4 Tex. Sup. Ct. J. 594; 349 S.W.2d 579; 1961 Tex. LEXIS 594
- **Precedential status:** Published
- **Opinion:** Dissent by Culver
- **Judges:** Calvert, Culver
- **Cited by:** 126 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9774588

## How later opinions describe it (automated extraction)

- explaining that sovereign immunity does not bar a suit to oust a “state official or employee . . . simply because he asserts a good faith but overzealous claim that title or right of possession is in the state and that he is acting on behalf of the state” and that “the mere as…
- explaining that sovereign immunity does not bar a suit to oust a “state official or employee ... simply because he asserts a good faith but overzealous claim that title or right of possession is in the state and that he is acting on behalf of the state” and that “the mere asse…
- concluding that legislative consent to sue was not prerequisite to maintenance of action in trespass to try title against governmental officials where governmental officials asserted rights to use submerged land for operation of ferry and finding that “plaintiffs’ title to the…
- noting that when “officials of the state'are the only defendants, or the only remaining defendants, and they file a plea to the jurisdiction based on sovereign immunity, it is the duty of the court to hear evidence on the issue of title and right of possession and, to delay ac…
- noting that the lower court judgment against state officials had awarded “title and possession . . . for plaintiffs, and defendants were enjoined from operating ferry boats over, or from going on the land”

## Opinion text

CULVER, Justice
(dissenting).
The point of jny disagreement with the court’s decision relates to the question of the State’s right to possession and use of this land for highway purposes. In 1943 the State Highway Commission entered upon a project to construct State Highway No. 87 northward from Second Street and operate ferry service across the Galveston channel and thence connecting across the Texas Coast. With full knowledge of that plan and in furtherance thereof respondents’ predecessors in title sold and conveyed the right-of-way up to the area in dispute, knowing full well that the highway would be extended across the flats and submerged land, that the wharf or terminal facilities would be established, and the ferry service put into operation. The highway was constructed at considerable cost, ferry terminal built ferry boats purchased and put into operation and until 1951 no objection was raised nor was the right of the State to the possession of this right-of-way and to the operation of ferry boats questioned by either respondents or their predecessors in title.
Summary judgment was rendered by the trial court in favor of the respondents decreeing title and right of possession in them as against the State Highway Commission of Texas and the members thereof individually and in their official capacity and against officials and employees of the State of Texas individually and officially.
The trial court .also perpetually enjoined the State Highway *560 Commission, the Texas Highway Department, and all of the defendants, both as state officials and employees and individually from going in or upon the premises and from operating ferry boats or other means of transportation thereover.
Respondents’ vendors evidently construed their grant from the State of Texas, as qualified and explained by later legislative enactments, to provide for the construction of streets and thoroughfares over this land and tacitly, if not expressly, consented to its use by the State for that purpose.
I am of the opinion that the title held by respondents is not an absolute one but is burdened with a public interest, namely, the right on the part of the public —the City— of access to the channel over the flats and submerged land granted to Menard.
In City of Galveston v. Menard, 23 Tex. 349 , the court construes this grant by the State of Texas as follows:
“In view of the full force of this rule of construction, we are satisfied, that this legislative grant was intended by the contracting parties to include the flats, so as to build a city upon Galveston island, with streets and lots running up to, and bordering on the channel of the bay.” (P. 398)
“That the private appropriation of lots on the channel, for wharves, was contemplated, and that streets were to be left open for public use, out to the channel, was abundantly illustrated by the practical action of the founders of the city, in reference to the subject.” (P. 403)
“The right, then, of Menard, and his vendees, to the soil in the flats, in front of the lots, out to the channel, is fully recognized. This may, in the course of time, when they are reclaimed, by being filled up, so as to become the site of business houses, be subject to the right of opening cross streets, when it can be practically done, and where such right may not have been lost.” (P. 408)
“The right, also of the city to the opening, improvement, and use of the streets, running out to the channel, with the right to build and control wharves in front of them, is fully recognized.” (P. 408)
The decision on the merits of this case turns almost wholly *561 upon the interpretation of the law as announced in Galveston v. Menard. The opinion in that case delineated the correlative rights and property relationship of Menard’s assigns and public. As pointed out the sole purpose that the Legislature had in mind in making this unusual grant to Menard was to build a commercial city and a port of entry on the channel and in the language used by the court which I re-emphasize:
“* * * not to be shut up and taxed for private aggrandizement, but to give it ultimately the means of self-preservation, by a control of the appropriate avenues to the channel of commerce, upon which it was built, whenever it became able to establish and improve them. 23 Tex. at page 405 .
The City of Galveston was to be developed upon an island. It was envisioned as an important port on account of its excellent and easily-accesible harbor. The court in Menard again and again demonstrates that the public was entitled to reasonable access to the harbor over the flats and the shore and that the Legislature so intended as necessary to the growth and development of a city and a port.
The legislative Act approved December 8, 1851, which expressly confers upon the City of Galveston the right and privilege of opening streets to the channel and to erect wharves at the end of the streets is discussed by the court and held to be declaratory of the legislative intent when the Menard grant was made. 2 The respondents here do not otherwise contend.
*562 The majority in this connection also refer to an act of the Legislature of February 16, 1852 (Laws of the State of Texas, 1851-52, Vol. 4, Part 2, Ch. 78, p. 181), declaring that nothing in the Act of December 8, 1851 “shall be so construed as to alter or impair any of the rights heretofore conveyed to Michael B. Menard, his heirs and assigns.” It is not to be implied that this later act in any way limited the rights granted in the former act to the city of opening streets and erecting wharves at the end of the streets. As demonstrative of that fact, the Act of February 16, 1852, additionally provides “that this act shall not be construed so as to prevent the Mayor, Aldermen and inhabitants of the City of Galveston from erecting wharves and collecting wharfage in front of streets running from the gulf to the bay, not occupied at the time of the passage of this act by wharves owned by individuals.” At any rate, this court in Menard construed these acts in connection with the original grant and sets that question at rest.
For the following reasons the respondents deny the right of the State to occupy the land in question for highway purposes and for terminal facilities and the operation of ferry service across the channel. (1) The language in Section 1 of the 1951 Act empowers the City only to open up the streets that existed within the corporate limits of the City of Galveston at that time; that if the City had power to open additional streets to the channel it would have the right to destroy many plants and installations that had theretofore been erected and build on the validity of the Menard patent. (2) The dredged-out portion of the land being used as a ferry channel is not in fact the opening up of a street within the meaning of Section 1, Act 1851; that while the highway does connect with Second Street the right-of-way was not in a direct line but curved to the east and could just as easily have been connected with First or Third Streets; that since it is not a continuation of Second Street upon the same course and distance it cannot be considered as an opening up of Second Street. (3) Highway 87 was not intended by the City as an extension of Second Street because the area between the end of Second Street and the channel has been built up with homes and other structures. (4) The City of Galveston has not attempted to declare State Highway 87 as an extension of Second Street and has not taken any formal and affirmative action toward that end. (5) The right to extend streets to the channel and build wharves did not include the right to dredge out the soil and operate a ferry. (6) At all events any opening up of Second Street, the City and the State would be limited to an 80- *563 foot street and not be allowed to install the ferry terminal facilities which would require a greater width.
The majority have thought it only necessary to discuss the reason assigned in No. 4, namely, that the resolutions of the City Council do not purport to authorize an extension of Second Street, but only authorized the State Highway Department to construct a state highway within the City’s corporate limits. The other reasons assigned are not decided. I assumed the majority singled out this as the one most compelling to their decision.
In my opinion the majority have too narrowly construed the grant of power and the purposes for which the power was granted. The import is that if the City had taken formal action and by resolutions authorized an extension of Second Street this action would have sufficiently empowered the state authorities to take possession of the necessary right-of-way over this tract and construct its highway and facilities thereon, at least absent the other objections.
In my opinion the grant and explanatory legislation pertaining thereto and as construed in Menard gave the City and the public the right of reasonable access to the channel for the normal development and growth of the City. It is immaterial and unimportant that the formal resolutions adopted by the City described the route as a highway instead of a street. The right existed in either event. It is to be recalled that after the resolutions were adopted the highway and terminal facilities were constructed. It was not until eight years thereafter when for the first time complaint was made. It would seem that if there had been any objection as to the form or nature of the resolutions the objection should have been timely raised rather than to wait until the state has spent a tremendous amount of money in affording this means of ingress and egress to the citizens of Galveston and the members of the public generally.
None of the other reasons assigned by the respondents, I think, are valid. In my opinion the power of the City to open streets was not limited to those streets that were within the corporate limits of the City at the time of the act of incorporation.
The following two quotations from the Menard case, to my mind, are clearly indicative of the contrary:
*564 “By the strict letter of the legislative grant, Menard’s right of property did not extend to the channel. It is extended there, only by resort to the plain intention of the contracting parties. Shall it be extended, then, for the benefit of one contracting party, and not the other? That would pre-suppose that the object of the government, was to enable him to make a private speculation. Whatever may have been his object, the only object which, it can be presumed, the government had, was to build a commercial city, and port of entry, on this channel; not to be shut up and taxed for private aggrandizement, but to give it ultimately the means of self-preservation, by a control of the appropriate avenues to the channel of commerce, upon which it was built, whenever it became able to establish and improve them.” 23 Tex. at Page 405.
“The appropriation of the streets to the channel in front of these laid off, according to the plan of the town, by the understanding of the contracting parties in its foundation, was necessarily prospective, from the condition of things at the time of the grant, and at the time of laying off the city, and selling the lots; * * 23 Tex. at Page 407.
Again, there is no conclusion to be drawn from Menard or from the 1951 Act that the street must be extended in a direct projection and that it cannot be curved somewhat on account of th lay of the land or for other reasons. At any rate the extension was in a northerly direction to the channel. So far as the right to dredge out the soil and operate a ferry is concerned, I think this power is implicit. Express permission is granted the City to build wharves on or over the land, the only limitation being that it could not interfere with wharves already established by private individuals. By definition a wharf is but a dock where passengers or freight may be discharged or otherwise taken aboard. Webster’s New International Dictionary, Second Edition.
In my opinion the grant to Menard was clearly burdened with the public right of reasonable access to and from the island across the flats, submerged lands and the channel, and in summary that is the only right that is claimed here on behalf of the State and the public, and the only right which is being contested.
I do not share respondents’ anxiety over the destruction of *565 wharves, docks, boat clubs and other installations erected on the flats and over the submerged land by subsequent opening up of streets or highways in the future should petitioners’ position be upheld. That is clearly enjoined by the Menard decision. The right to open the streets is limited by rights that have become vested in others by actual occupation and user. In this case the land occupied by the Highway Commission for the benefit of the State of Texas and the public was not being put to any other use. It was vacant and unoccupied.
I would reverse and render in favor of petitioners.
Laws of the State of Texas 1851-52, Vol. 4, Part 2, Chap. 13, pp. 11-12 “Section 1. Be it enacted by the Legislature of the State of Texas, That the corporation of the City of Galveston shall have the power and privilege of opening all the streets running North and South on the Bay side of said City to the channel; and shall also have the power and right to erect wharves at the end of such streets as they may deem proper.
“Sec. 2. That the said corporation shall have power to fix the rates of wharfage and to collect the same, on all goods, wares and merchandise, landed upon said wharf or wharves; to bring suit to recover the same before any Court having jurisdiction of the amount in controversy.
“Sec. 3. That the said corporation shall have the power to fill up such portions of the flat covered by water, between ordinary low tide water mark, and the channel on the Bay side, as said corporation may deem necessary for public purposes.
“Sec. 4. That the State of Texas hereby relinquishes and releases unto the corporation of the city of Galveston, all the rights and privileges above mentioned; provided, that nothing in the third and fourth sections of this act shall be construed to affect any legal title to wharf privileges held by persons in said City; and that this act take effect and be in force from and after its passage.
“Approved, December 8, 1951.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9774588. Public record. Not legal advice.