Petition — Terramar Beach Community Improvement Ass'n v. Carrithers

Supreme Court brief1983

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Supreme Court of the United States

OCTOBER TERM, 1982

TERRAMAR BEACH COMMUNITY IMPROVE-

MENT ASSOCIATION, INC.,

Petitioner,

Vv.

C. ED CARRITHERS AND

ROBERT G. COULTER,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF TEXAS

ROBERT M. MOORE

(Counsel of Record)

ROBERT M. Moore & ASSOCIATES

7511 Broadway

Galveston, Texas 77551

Attorneys for Petitioner

Alpha Law Brief Co., Inc.—5606 Parkersburg—Houston, Texas 77036—223-3003

QUESTIONS PRESENTED

1. Whether Congress’ Commerce Clause authority over

navigable waters precludes a private property owner from

granting an easement of use and control in a privately

financed and developed turning basin.

2. Whether a Texas Supreme Court ruling that the State

takes free of easements to privately developed navigable

waterways quitclaimed to the State, is a taking under the

Fifth Amendment requiring the payment of just compen-

sation to the easement owner.

LIST OF PARTIES

All parties to this proceeding in the Texas Supreme

Court are named in the caption.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED I

Liss OF PARTIES ..... soues : I

TABLE OF CONTENTS ..... (ous pie III

TABLE OF AUTHORITIES .. a ae ror Iv

OPINIONS BELOW l

JURISDICTION 2

CONSTITUTIONAL PROVISIONS INVOLVED 2

STATUTORY PROVISIONS INVOLVED 2

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT 5 . 1]

I. THE DECISION OF THE TEXAS SUPREME

COURT THAT A GRANT OF AN EASEMENT

OF USE AND CONTROL TO A PRIVATELY DE-

VELOPED MARINA IS PRECLUDED BY THE

COMMERCE CLAUSE AND THE STATE AND

UNITED STATES GOVERNMENTS’ SOVER-

EIGNTY OVER NAVIGABLE WATERS IS IN

CONFLICT WITH RECENT DECISIONS BY

THE UNITED STATES SUPREME COURT ON

THIS ISSUE.

II. THE DECISION OF THE TEXAS SUPREME

COURT THAT THE STATE TAKES FREE OF

EASEMENTS GRANTED TO OTHERS WHEN

PROPERTY UNDER NAVIGABLE WATERS IS

QUITCLAIMED TO THE STATE VIOLATES

PETITIONER’S RIGHTS UNDER THE TAKING

CLAUSE OF THE FIFTH AMENDMENT. .... 20

CONCLUSION 24

APPENDICES

APPENDIX A 26 Tex. Sup. Ct. J. 172 (Jan. 8, 1983) la

APPENDIX B 630 S.W.2d 648 (Tex. App —Houston,

1983) .. . 6a

APPENDIX C No. 118,560 (Tex. Dist. Ct. 56th Judicial!

Dist. ) l2a

APPENDIX D Judgment 1-5-83 (Tex. Sup. l7a

APPENDIX E Respondent’s Points of Error (Tex. App.) 19a

APPENDIX F Respondent's Assignments of Error: (Tex

APPENDIX G Conveyance of Easement 31a

APPENDIX H Motion for rehearing denied ike 34a

TABLE OF AUTHORITIES

CASES Page

Carrithers Terramar Beach Community Improvement As-

iation, Inc., 630 S.W.2d 648 (Tex. Civ. App.—Hous-

ton [Ist Dist.] 1981 ; dace ob ee er 2,7,8

Devines v. Mater, 665 F.2d 138 th Cir. 1981 pee on 22

Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383

197 9,11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22

Loreto Teleprompter Manhattan CATV Corp., 102 S.Ct

$i Oo i BE) severe vresesveessincenseeceearesern eves eenes

McMahon v. Fender, 350 S.W.2d 239 (Tex. Civ. App

‘Vaco 1961. err ref'd n.r.e es i -ewawe 4

Miller v. Letzerich, 121 Tex. 248, 49 S.W.2d 404 (1932) 21

tr? » i - ‘ “ aa 7 “ IAL iw +

Vaughn Vermilion Corporation, 444 US. 206, 100 S.Ct.

399 79) . cece we cee eee seeenes 9.11.13, 17, 18,19, 20, 22

> é LOnNGIiNgnicm, + S lex 165 157 S.W.2d 631 (1941) 21

nited Ste v. Causby, 328 U.S. 256, 66 S.Ct. 1062

194 .13, 15, 20, 21

STATUTES AND RULES

U.S. CONST rt. I, $8 - nadesuuye ...2,5, 18,19

U.S. CONST. Amend. V .. ewww eevee aeeeeeceeed, 10,20, 21

re te ee Be tS ee ee eee ee er ee 2

TEX. NAT. RES. CODE ANN. 311.012 (Vernon 1978)

; caw wc decemsedeseseassanewess Lin egn cudge Oe else

3 F_R 320.4(g 1980

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IN THE

Supreme Court of the United States

OcToBER TERM, 1982

NO.

TERRAMAR BEACH COMMUNITY IMPROYVE-

MENT ASSOCIATION, INC..

Petitioner,

Vv.

C. ED CARRITHERS AND

ROBERT G. COULTER,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF TEXAS

Terramar Beach Community Improvement Association,

Inc. respectfully petitions for a writ of certiorari to re-

view the judgment of the Supreme Court of Texas entered

in this case on January 5, 1983.

OPINIONS BELOW

The opinion of the state district court is unreported.

However, that court’s findings of fact and conclusions of

law are reprinted herein as App. C (12a). The opinion

of the Court of Appeals for the First Supreme Judicial

District of Texas, Houston, Texas, is reported at 630

S.W.2d 648 (Tex. App.—Houston [Ist Dist.] 1982) and

is reprinted herein as App. B (6a). The opinion of the

Supreme Court of Texas is reported in slip opinion form

at 26 Tex. Sup. Ct. J. 172 (Jan. 8, 1983), a copy of

which is reprinted herein as App. A (la). A copy of the

notice that the motion for rehearing was overruled is

attached as App. H (34a).

JURISDICTION

The court below entered judgment on January 5, 1983.

Petitioner's Motion for Rehearing was timely filed on

January 17, 1983, and denied on March 9, 1983.

This Court has jurisdiction to review the judgment of

the Texas Supreme Court by certiorari, pursuant to 28

U.S.C. § 1257(c).

CONSTITUTIONAL PROVISIONS INVOLVED

Art. I, $ 8, of the United States Constitution provides

in pertinent part as follows:

“The Congress shall have power .. . to regulate com-

merce with foreign nations, and among the several

States, and with the Indian tribes.”

The Fifth Amendment of the United States Constitution

provides in pertinent part as follows:

“. .. [NJor shall private property be taken for public

use, without just compensation.”

STATUTORY PROVISIONS INVOLVED

TEx. NAT. Res. CODE ANN. § 11.012 (Vernon 1978)

provides in pertinent part as follows:

“(b) The State of Texas has full sovereignty over

the water, the beds and shores, and the arms of the

Gulf of Mexico within its boundaries . . . , subject

only to the,right of the United States to regulate

foreign and interstate commerce under Article I.

Section 8, of the United States Constitution, and the

power of the United States over admiralty and mari-

time jurisdiction under Article III, Section 2, of the

United States Constitution.

“(c) The State of Texas owns the waters and beds

and shores of the Gulf of Mexico and the arms of

the Gulf of Mexico within the boundaries... , in-

cluding all land which is covered by the Gulf of

Mexico and the arms of the Gulf of Mexico either

at low tide or high tide.”

STATEMENT OF THE CASE

A. Terramar Beach Community Improvement Associa-

tion, Inc., is a property owners association which repre-

sents the homeowners of Terramar Beach Subdivision,

a privately developed community of waterfront and canal-

front homes on Galveston Island, Texas.

Prior to any improvements thereof, the property on

which the Terramar Beach Subdivision is now located

was dry land bordering Galveston Bay and was originally

owned by the HGC Development Corporation. In 1963,

HGC carved out a network of canals and a turning basin

from this land so as to create an extensive frontage for

the construction of canalfront homes. The canals and

turning basin were intended for the use of homeowners

in the subdivision who owned boats. The “turning basin”

was simply intended as an aquatic cul-de-sac to enable

boats to reverse direction after entering or exiting one

of the canals.

After the construction of the artificial canals and turn-

ing basin, but prior to further improvements of the prop-

erty into saleable homesites, HGC went bankrupt. HGC

conveyed the entire property to its trustee in bankruptcy

who, in turn, conveyed the property to the 7500 Bellaire

Corporation. Bellaire then proceeded to make the two

conveyances giving rise to this controversy. In 1975,

Bellaire granted an easement of the full, free and un-

interrupted use of the turning basin, including the over-

lying waters, to one Cary White. White assigned all his

rights under the easement to Terramar in 1977. Then in

1978, Bellaire conveyed the turning basin and canals to

the State of Texas through a quitclaim deed, subject to

the easement owned by Terramar.’

Carrithers and Coulter own a strip of property border-

ing the turning basin. This property was also acquired

/“from Bellaire. The deed to Carrithers and Coulter ex-

pressly recited the fact that the conveyance was made

subject to Terramar’s easement to the turning basin.

In 1980, Coulter and Carrithers sought and obtained

a permit from the United States Army Corps of Engineers

to construct a private marina, including approximately

201 feet of bulkhead, a dock, a boat ramp, and three

60’x195’ covered boat sheds.* The pier and boathouse

1. Under Texas law, a quitclaim deed passes only the interest

that the grantor has in the property at the time of executing and

delivering the instrument. If the grantor’s interest in the land is less

than the fee, a quitclaim transfers to the grantee only the title or

interest the grantor has and does not of itself establish title in those

holding under it. McMahon v. Fender, 350 S.W.2d 239 (Tex. Civ.

App.—Waco 1961, err ref’d n.r.e.); See also 19 Tex. Jur. 2d, Deeds,

; 11 (Supp. 1982), and cases collected therein.

2. Both the permit and the Corps’ rules and regulations upon

which the permit was issued expressly provide that no property rights

were conveyed by the permit itself: ‘‘Authorization of work or struc-

complex was to originate from the Coulter and Carrithers

property, but was to be located primarily in the turning

basin, anchored by pilings driven into the bottom of the

turning basin.

Immediately after the issuance of the permit, Terramar

sought and obtained a permanent injunction prohibiting

Carrithers and Coulter from constructing the marina

complex. The Texas Court of Civil Appeals affirmed the

permanent injunction. However, the Texas Supreme Court

has found the injunction to be invalid on the ground that

Terramar’s easement to the turning basin was invalid in

light of state and federal sovereignty powers over navi-

gable waters. The court held:

“The exclusive right to control, impede or otherwise

limit navigable waters in this state belongs to the

governments of Texas and the United States. An

individual landowner is without such a right. Thus,

as grantor, the Bellaire Corporation could not give

White (or Terramar as his assignee) the exclusive

use of navigable waters which are owned by the

State of Texas. We hold that a grant of the easement

purporting to limit the use of navigable waters con-

flicts with the state and United States governments’

sovereignty over such waters.”

(Citing U.S. Const. art. I, § 8; Tex. Nat. REs. CODE

ANN. §11.012(b) (Vernon 1978), 26 Tex. Sup. Ct. J.

173; See App. A, 3a.)

tures by the Department of the Army does not convey a property

right nor authorize any injury of property or invasion of other rights.”

33 C.F.R. § 320.4(g) (1980). The permit itself provides: That this

permit does not convey any property rights, either in real estate or

material, or any exclusive privileges; and, that it does not authorize

any injury to property or invasion of rights or any infringement of

Federal, State or local laws and regulations, nor does it obviate the

requirement to obtain State or local assent required by law for the

activity authorized herein.

B. The federal questions presented by this case were

considered in the trial court, the Houston Court of Ap-

peals and the Texas Supreme Court. In the trial court,

Terramar’s petition for injunction was premised upon its

superior rights under the easement. A copy of the ease-

ment assigned to Terramar is reprinted herein as App. G

(31a). The trial court entered findings of fact and con-

clusions of law which are reprinted herein as App. C*

(12a). The trial court in its first conclusion of law found:

“Even though the Defendants have obtained a permit

for the construction of the improvements referred to

in the Findings of Fact, the permit is not controlling

since, although the permit may have been required

by the Corps of Engineers, consent by the Plaintiff

would also have been required since the underlying

lands were not public lands, or if they had become

public lands, the public’s rights are subject to the

Plaintiff's easement to the land beneath the water

of the Turning Basin.”

(App. C, 16a). The trial court then issued an order en-

joining the construction of the marina to the extent it

would intrude into the turning basin.’

3. See Vernon’s Tex. R. Crv. P. 296 (Supp. 1982)

4. The trial court’s order permanently enjoined the Respondents

trom:

(1) Digging or removing earth, sand, marl or in any way

displacing same, blocking, filling in, driving pilings of any size

or length into, anchoring into or on, dumping, dredging, or

placing any permanent or stationary objects or appurtenances

in or on the land area where the Plaintiff's exclusive easement

exists;

(2) Placing any objects on or over the surface waters of the

“turning basin’’ where Plaintiff's easement exists which are in

any way designed or meant to facilitate the temporary or perma-

nent storage of boats, barges, boat ramps, docks or any facility

which in any way blocks or impedes the full and complete

The Respondents appealed the trial court’s injunctive

order to the Houston Court of Appeals (lst Dist.). The

Respondents raised nine points of error in their brief,

all but one alleging, in various forms, the preemption of

Terramar’s right to prevent the project because of the

Superior authority over navigable waters of Congress

under the Commerce Clause.” All nine of Carrither’s and

Coulter’s points of error to the Court of Appeals are

reprinted herein as App. E, 19a. The Court of Appeals

affirmed the trial court’s order granting the permanent

injunction. The Court of Appeals found that the grant

by the U.S. Army Corps of Engineers to the Respondents

did not bestow upon them any property rights with respect

to the submerged lands in the turning basin. Carrithers

v. Terramar Beach Community Improvement Association,

Inc., 630 S.W.2d 648, 650 (Tex. App.—Houston [Ist

Dist.] 1981); see App. E, 19a.

The Court of Civil Appeals carefully delineated the

rights of Terramar relative to those of the Respondents

as private parties and the Court also delineated the rights

of Terramar relative to those of the public. The Court

of Appeals found that the injunction expressly recognized

the rights of the general public to use the waters over-

lying the bed of the turning basin. 630 S.W.2d 648, 650.

The court also found that the only rights in conflict were

usage of the surface waters of the ‘turning basin” where Plain-

tiffs’ easement exists; . .

(3) Obstructing or in any other manner impairing or inter-

fering with the Plaintiff's exclusive easement.

The order further provides that it shall not be construed to lin

enjoin any person from using the waters of the turning basis for

swimming, boating, fishing or water transportation.

SEVENTH POINT OF ERROR was based on

immit or

aeaaal

Respondents

> : } — P ade ! - O-

state sovereignty over navigable waters. See App. E, 19a

those of two private parties and that there was no conflict

between the rights of Terramar and the right. of the

public, which the court found were protected by state

and federal laws. 630 S.W.2d 648, 650.

The Respondents appealed the judgment of the Court

of Appeals to the Supreme Court of Texas. The Texas

Supreme Court granted a writ of error to consider eight

of nineteen assignments of error alleged by Carrithers and

Coulter in their Application for Writ of Error.” The main

thrust of Respondents’ argument was that Bellaire Cor-

poration, as owner of the turning basin, was precluded

by the Commerce Clause from granting any easements

for the use of the turning basin because Congress alone

had the exclusive authority to control the use of the

turning basin.’ The Respondents also argued that the

turning basin “went public” upon its being submerged

with navigable water and therefore all private property

rights in the turning basin after submergence became

totally subservient to the rights of the public in the use

and control of the turning basin.* The Respondents further

argued that the U.S. Army Corps of Engineers permit

for the construction of the marina gave them rights

superior to any of those held by Terramar in the turning

basin.’

The Texas Supreme Court granted the writ to consider assign-

ments of error Nos. 1, 5, 8, 10, 12, 15, 17, and 19. These are re-

printed herein as App F. 26a. See Vernon’s Tex. R. Civ. P. 476,

480, 483 (Supp. 1982) concerning the writ of error procedure in

Texas.

1, 5, 10, 12, and 17, App. F,

See assignment of error Nos

26a, 27a, 28a

8. See assignment of error Nos 10, 15, 17, and 19, App. F,

27a, 28a, 30a

9 12, App. F, 28a.

See assignment of error No

C. The Texas Supreme Court entered its opinion and

judgment in this case on January 5, 1983.'” The Texas

Supreme Court held that “a grant of the easement pur-

porting to limit the use of navigable waters conflicts with

the state and United States governments’ sovereignty Over

such waters”. (26 Tex. Sup. Ct. J. 173; see App. A, 4a.)

Having found the easement invalid, the court concluded

that the title the state took by the 1978 quitclaim deed

to the turning basin bed was unencumbered by the pur-

ported easement. Thus, construction of the marina was

subject only to the securing of the approvals of the per-

mitting agencies of the state and the United States. (slip

op. p. 3; see App. A, 3a).

Terramar filed a timely Motion for Rehearing.’ In its

motion, Terramar sought to redirect the court’s attention

to two United States Supreme Court cases advanced by

Terramar during oral argument to be controlling and

dispositive of this case.’* These cases expressly held, on

facts identical to those in Terramar’s case, that the owner

of a privately developed artificial waterway, regardless of

its characterization as “navigable,” had the right to ex-

clude the public from using those waterways absent

condemnation and payment of just compensation by the

government for a public right of way. The Texas Supreme

Court denied Terramar’s Motion for Rehearing without

10. A copy of the court’s slip opinion is reprinted herein as App

A, la. A copy of the court’s judgment is reprinted herein as App. D,

17a.

11. See Vernon’s Tex. R. Crv. P. 515 (Supp. 1982).

12. Kaiser Aetna v. United States, 444 US. 164 (1979), and

Vaughn v. Vermilion Corporation, 444 U.S. 206 (1979). These two

cases were not discovered in time for inclusion in Terramar’s written

brief but were presented to the court for consideration during oral

argument.

opinion on March 9, 1983. Thus, the first question now

presented to this Honorable Court, whether Congress’

Commerce Clause authority over navigable waters precludes

a private property owner from granting an easement of

use and control in a privately financed and developed

turning basin, was squarely presented to and considered

by the Texas Supreme Court, which found the answer

to this question in the affirmative."

The second question now presented to this Honorable

Court, whether the Texas Supreme Court’s ruling that the

State took title free of any previously granted easements

by the grantor-owner is itself a taking under the Fifth

Amendment, was also presented to the Texas Supreme

Court in Terramar’s Motion for Rehearing.’* Petitioner

specifically asked the court in Petitioner's Motion for Re-

hearing to consider whether its holding, that the easement

to the turning basin as a privately developed navigable

body of water was per se invalid under state and federal

Paragraph VI of Terramar’s Motion for Rehearing states in

ertinent part as follows

The position that this Honorable Court has taken in Re

is contrary to that taken by the United States

preme Court in both Karser Aetna, supra, and Vaughn, supra.”

14. Paragraph VIII of Terramar’s Motion for Rehearing states in

pertinent part as follows:

This Court has in effect said that any rights to use by private

owners of submerged land below navigable waters are impossible

This interpretation would imply that once any property becomes

merged avigable waters, the owner of that property loses

any rights of use of his land. The Commerce Clause does not

so hold would in itself be a violation of the

wa he weed

. lose 1 ot

the property’s submergence by, or development into, navigable

water. This is in direct conflict with the Commerce Clause, the

Taking Clause. and the Due Process Clause of the United States

Constitution.”

law, particularly the Commerce Clause, was in and of

itself a taking without just compensation of private prop-

erty for public use. By denying Terramar’s Motion for

Rehearing, the Texas Supreme Court has tacitly deter-

mined that it does not believe its prior decision in Peti-

tioner’s case amounts to an unconstitutional taking.

REASONS FOR GRANTING THE WRIT

The Texas Supreme Court's judgment is squarely con-

trary to the decisions of this Court in Kaiser Aetna vy.

United States, 444 U.S. 164, 100 S.Ct. 383 (1979), and

Vaughn v. Vermilion Corporation, 444 U.S. 206, 100

S.Ct. 399 (1979). The exact issues in Petit

have been previously considered and decided by this

Honorable Court in these two cases. These cases :

on the rights of a private developer of an artif

way. These cases hold that the owner of private property

subsequently submerged by and connected with navigable

waters through privately funded improvements, retains

the right to control the use of these waters. Petitioner

has never disputed the fact that this right is subject to

being preempted by an exercise of government power in

this area pursuant to the Commerce Clause. But Petitioner

does contend (1) that his rights against other private

parties are paramount and (2) that his rights against the

government, while subject to preemption, are nevertheless

protected from being taken without compensation by the

Taking Clause of the United States Constitution. Because

the Texas Supreme Court has taken a position on a federal

question contrary to that of this Honorable Court, its

judgment in this case should be reversed. The Texas

Supreme Court has erroneously interpreted the nature and

extent of federal power under the Commerce Clause and

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fet

its judgment will effect a taking of Petitioner’s property,

without just compensation. if allowed to stand.

The questions presented in this case involve important

questions of federal law concerning the rights of private

property owners versus federal power under the Commerce

Clause to control] the use of navigable waters. If allowed

to stand, the Texas Supreme Court decision will have the

effect of greatly deterring private owners of property from

developing and improving their property with navigable

waterways. No longer will a prudent investor or private

developer in Texas be apt to invest large sums of money

to improve property with navigable waterways absent the

right to contro] the use of these waterways. This is what

this Court in Kaiser Aetna, supra, must have realized

when it denied the existence of an automatic public right-

of-way in privately developed navigable waterways. This

Court in Kaiser Aetna, supra, expressly recognized what

the Texas Supreme Court failed to recognize—that the

right to exclude others is “one of the most essential sticks

in the bundle of rights that are commonly characterized

as property.” 444 U.S. 164, 176 (1979). To say, as the

Texas Supreme Court has said, that the owner of a pri-

vately developed navigable waterway lacks the power to

control the use of that waterway because of state and

federal sovereignty therein, fails to recognize the import-

ance of that right to the private property owner and mis-

states federal law on this question. Without the right to

regulate the use of his property, of what value is the

property to its owner? To say that federal law precludes

this right in private owners of navigable waterways be-

cause of the superior authority of Congress to control and

regulate this nation’s navigable waters misses the point.

Petitioner would respectfully suggest

that the Texas

e Cont the icsciue of Commerc ] cA

Supreme Court has confused the issue of Ommerce Clause

‘sy = with the ; ¢ + | in y hy re 7) ) | t; Y The Te 2

power with tne issue OF taxing OV reguialic ne exas

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Supreme Court has apparently failed to recognize th

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restriction on governm< ent regulatory power imposed DY

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the Taking Clause of the United States Constitution, in-

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cluding that regulatory power conferred by the Commerce

C] 11¢fa Thi H yore hla Cc rt expresaly rearnoeni7edn and

ause. Is OTlt at ic OU CAP ICssiv¥ TOCOSTULEG and

enforced this restriction 1

Vaughn, supra, and should now grant a writ of certiorari

to the Supreme Court of Texas to reaffirm this restriction

I. THE DECISION OF THE TEXAS SUPREME

COURT THAT A GRANT OF AN EASEMENT OF

USE AND CONTROL TO A PRIVATELY DE-

VELOPED MARINA IS PRECLUDED BY THE

COMMERCE CLAUSE AND STATE AND UNIT-

ED STATES GOVERNMENT SOVEREIGNTY

OVER NAVIGABLE WATERS IS IN CONFLICT

WITH RECENT DECISIONS OF THIS COURT

ON THIS ISSUE.

In its opinion of January 5, fai the Texas Supreme

Court held that a grant of an easement purporting to li

the use of navigable waters sales with the state and

United States governments’ sovereignty over such waters

(26 Tex. Sup. Ct. J. 173; App. A, 4a) li

in conflict with recent decisions ye

the rights of private property owners versus federal power

under the Commerce Clause to contro] the use of navi

able waters. See: Kaiser Aetna v. United States, 444 U.

164 (1979): Vaughn v. Vermilion Corporation, 44

206 (1979): and United States v. Causby, 328 USS.

66 S.Ct. 1062 (1946).

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put Ai 6a ULI Lid vin awWit Watt c VU} nion O tne

I =

. . ¢

Te mmreme C SyIrt me rraotir ct atac ha Lat ra d

exXas Supreme UUIL iii ee 2LalOs tne nature an

a } ’

aytrfant a lary] rn Ui er Neer The C mmmnerce ( la <A

extent of AVM GL } Wel wmliVivil tii UliICic’e use.

A. In Kaiser Actna vy. United States, 444 U.S. 164

(1979), the owners of a small pond in Hawaii connected

established a

fee for the use of the marina and attempted to exclude

the public from entering the pond area, claiming they

ude non-paying members from

@ al Ss e navigability of the

in question. The United States sought a declara-

t that the owners had no such right because

“the public enjoys a federally protected right of naviga-

tion over the navigable waters of the United States.” 444

U.S. at 164, 170. This Court disagreed and, in holding in

favor of the owners, stated: ipotaa ile feptini Pond may

Cor f Engineers... it

joes not follow that the pond is eh ere ect to a public

: 3. This Court ex-

pam |

444 U.S. 164, 172-17

AQ,

pon

—

arecp

Nr kN

Wates

Unti

sith

}

away

L-

to ta

the

ith

titution /d. at

r= \

ily an ease-

TN)

—

256

just compensa-

328 U.S.

Causby,

rty,

ment in prope

ken a position that is

fas |

The Texas Supr

ht of

ately owned land

—

, the private landowner,

es its power to take

in Kaiser Aetna, supra.

l€ private owner just

ove priv

Cour

at right

This Court in Kaiser Aetna, supra, found that the ri

use and control of th

belongs to the holder of tl

‘

rtv ris

prope

compensation.

away that

In Kaiser Aetna, supra, the owners of the pond con-

nected it to a bay. ase, the owner of the

land (Bellaire Corporation) dredged out a turning basin

and canals and donnecusd it to Galveston Bay. In Kaiser

Aetna, supra, the government claimed a loss of the right

In the recean C2

A a

of control over the navigable water above the owner's

land. In the present case. the Texas Supreme Court found

hat Terramar’s predecessor in interest (Bellaire) lost its

right of control over the navigable _ above its land.

In Kaiser Aetna, supra, this Court held that there was no

trol eager the Commerce

such automatic loss of con

Clause. The Texas Supreme Court is bound to follow the

decisions of this Court on questions of federal law and

should have affirmed the lower courts’ judgments that

Terramar’s predecessor in interest had the right to control

the use of the tu

this right of contro

courts’ judgments granti

~—

saforeenent of its easement “ights.

The Texas Supreme Court's holding that Terramar’s

predecessor in interest had no right to control the use of

the bottomland or the surface waters of the turning basin,

nor the power to assign this right of control to Terramar

on the ground that such a right would be an invalid limi-

tation on government sovereignty over such waters, is in-

consistent with this Court’s holding in Kaiser Aetna,

supra. In Kaiser Aetna, supra, the United States Supreme

Court expressly found to the contrary in holding that

federal power over navigable waters above private prop-

erty did not mean that the private property owner lost the

right of control over the use of his property, including the

navigable waters above, simply upon the submergence

under or connection of his land with navigable waters.

While this Court affirmed the power of the government

under the Commerce Clause to preempt and supersede the

right of the private property owner, it expressly required

that any such exercise of this power be in compliance with

the Taking Clause of the United States Constitution. In

short, the private property owner keeps all the “sticks”

in his bundle of property rights, unless and until the

government decides to take away some or all of these

“sticks” for some public good. None of these “sticks” of

ownership were lost upon the enactment of the Commerce

Clause, and there is no inherent preeminent right of con-

trol over navigable waters above non-public land in the

government.

B. Vaughn v. Vermilion Corporation, 100 S.Ct. 399

(1979), was a companion case to Kaiser Aetna y. United

States, supra. The facts of the cause before this Honorable

Court, and the facts of Vaughn, supra, are indistin-

guishable.

In Vaughn, the respondent, Vermilion Corporation,

was the lessee of private property upon which man-made

navigable canals had been constructed and maintained

with private funds. The lessee, Vermilion Corporation,

shared a joint right with its lessor, Exxon Company, to

use the canals which lay between the Intracoastal Canal

and the Gulf of Mexico. Vermilion subleased portions of

the Exxon land, for a price, to hunters and fishers and

sought an injunction to exclude the petitioners, non-paying

fishers and hunters, from use of the canals. The petitioners

claimed that notwithstanding Vermilion’s property rights,

they were entitled as a matter of federal law—without

obtaining respondent’s permission—to travel the canal

and engage in commercial fishing and shrimping activities.

Id. at 401.

This Court again ruled that the owners of the canals,

developed with private funds, retained the exclusive right

of control of access to those canals, regardless of their

being “navigable waters.” This Court did not say that this

right to keep others out was absolute. Of course, as noted

in Kaiser Aetna, supra, the federal government could have

ordered the canal owners to open the canals up to public

navigation. However, the Court expressly found that ‘no

general right of use in the public arose by reason of the

authority over navigation conferred upon Congress by the

Commerce Clause of Art. I of the United States Consti-

tution.” 100 S.Ct. 399, 401

The facts in the present case are indistinguishable from

those in Vaughn, supra. In Vaughn, abhi the plaintiff's

predecessor in interest owned dry land. constructed navig-

able canals with his own money, and then attempted to

keep others from using the canals without his permission.

In the present case, Terramar’s predecessor in interest

owned dry land, constructed navigable canals and a turn-

ing basin with his own money, then assigned his right of

control over the use of the waters above the turning basin

to Terramar, who, in turn, has sought to enforce this

tight through permanent injunction to keep Carrithers

and Coulter from using the property contrary to the

wishes of Terramar as easement holder.

The Texas Supreme Court has held that Terramar’s

predecessor in interest had no such power to grant an

easement to Terramar because of the superior authority

over navigation conferred upon Congress and the State.

This Court, on the same facts as present in this case,

found in Vaughn, supra, that “no general right of use in

the public arose by reason of the authority over naviga-

tion conferred upon Congress by the Commerce Clause of

Art. I of the U. S. Constitution.” /d. at 209. This Court

went on to hold that unless on remand it was found that

the man-made canals were created by the destruction of

natural waterways (a fact issue not present in this case),

then plaintiff was entitled to injunctive relief on the

ground that “channels built on private property and with

private funds, in such a manner that they ultimately join

with other navigable waterways” do not become subject

to general use by the public. /d. at 206.

C. The Texas Supreme Court has determined that

Terramar’s canals became subject to public use and con-

trol immediately upon their being impressed with the

character of “navigable waters.” Quoting from the court’s

slip opinion:

“In Texas, the state owns the water, the beds and

Shores of the Gulf of Mexico. .. . The waters of

public navigable streams are held by the state in trust

for the public, primarily for navigation purposes. . .

The exclusive right to control, impede, or otherwise

limit navigable waters in this state belongs to the

governments of Texas and the United States.

Thus, as grantor, the Bellaire Corporation could

not give White (or Terramar as his assignee) the

exclusive use of navigable waters which are owned

by the State of Texas. We hold that a grant of the

easement purporting to limit the use of navigable

waters conflicts with the state and United States

governments’ sovereignty over such waters.” (26

Tex. Sup. Ct. J. 173, citations omitted. )

The position that the Texas Supreme Court has taken

in the present case is contrary to that of this Court in both

Kaiser Aetna, supra, and Vaughn, supra. The canals and

turning basin were established in exactly the same way

as the bodies of “navigable water” in these two United

States Supreme Court cases. In Vaughn, supra this Court

1 r 2 ‘7 . - r rts im”Y Ve

held that the owners of private property who improve

that property with navigable canals do not lose any rights

of use or control over those canals. The Texas Supreme

C } he < lata ; > L, + Woh t r ] ] > th s| riah

ourt has determined that such owners do lose their rignts

ne i Te

of use and CC t rol because of State and federal sovereignt »

nonsiderations in the navigable water area. In Kaiser

- sae aa ~ et halt th 7 ere . j

Aetna, supra, this Court held that the government could

not force the owners of property improved with a navi-

gable waterway and marina to open up access to those

waters, absent a condemnation proceeding and payment

of just compensation. This approach is exactly what this

Court recognized was required in Kaiser Aetna,

and Vai ohn cura t Lan : 7 halei tha way r ron rth

ail aue 277, (pra, When it upneid tne private pri : oe | J

imed by the government

Supra

owners’ rights over those cla

based on navigable water authority. Therefore, Terramar’s

easement, a property ‘ight protected by the Taking

Clause under Unit ed. State s v. Caushy, supra, should be

found valid by this Honorable Court, and Terramar’s right

to injunctive relief affirmed.

II. THE DECISION OF THE TEXAS SUPREME

COURT THAT THE STATE TAKES FREE OF

EASEMENTS GRANTED TO OTHERS WHEN

PROPERTY UNDER NAVIGABLE WATERS IS

QUITCLAIMED TO THE STATE VIOLATES

PETITIONER’S RIGHTS UNDER THE TAKING

CLAUSE OF THE FIFTH AMENDMENT.

The Texas Supreme Court has determined that the right

of a private landowner to control and delimit the use of

his privately owned land below navigable waters is pre-

cluded by state and federal sovereignty over those waters.

This interpretation leads to the inescapable result that

hereinafter, once any private property in Texas becomes

submerged by navigable nie the owner of that prop-

this property.

Under this holding, Tere: landowners effectively if not

title to their property to the government upon

erty forfeits the right to dictate the use of

actually lose ti

the property’s submergence by o

gable water. The Commerce Clause

and to so hold in the present case

taking of Terramar’s property in

Clause.

r development into navi-

does not require this

is in and of itself a

lation of the Taking

The State of Texas took title from Terramar’s predeces-

h full kno wledge of Terramar’s ease-

his predecessor in interest.

sor in interest wit

me nt rights granted to him by

Neither TEx. NAT. RES. CopE ANN, $ 11.012(b) (Ver-

non 1978) or (c) should be interpreted as giving the

State of Texas ownership rights beyond those obtained

in compliance with the Taking Clause of the United States

. os : trAmal einiria : > A

Constitution. » traditional rules of statutory con-

¢ 1 +h ln oneas - ; fatiita 3 br Lad ano o}

Struct ion, yvnere tne language OT a Statute 18 dFroadad en¢ ugn

a +h, ‘ »)] t ; ; ; ¢

to cover matters without. as well as within. constitutional

boundaries. the courts should construe the statute in a

lv to matters lying within

}

as anpnivin?g On}

rt bJ | ee

BAMALL

the constitutional framework. Waco Landineham, 138

Under Texas property law, an easement has long been

recognized as property and an interest in land which is

protected by the Constitution. Miller v. Letzerich, 121

Tex. 248, 49 S.W.2d 404 (1932). This Court, almost

40 years ago, held that easements are such rights in

property that are protected under the Taking Clause.

United States v. Causby, 328 U.S. 256 (1946). This

Court has held repeatedly that a Fifth Amendment taking

can occur through the destruction of the use and enjoy-

ment of a legitimate private property right through an

exercise of state police power. Also, this Court has just

recently said that the states do not have unlimited power

to redefine property rights without running afoul of the

Taking Clause. Loreto vy. Teleprompter Manhattan CATV

Corp., 102 S.Ct. 3164 (1982). It has also been said

that a state may not severely limit or otherwise destroy

private property rights and escape the obligation of just

compensation by the circular reasoning that the private

jated by the regulation and therefore

right was inval.dé

never existed. Devines v. Maier, 665 F.2d 138 (7th Cir.

1981).

The Texas Supreme Court has held that Terramar’s

easement was invalid because of the paramount authority

of the state and federal governments to regulate the use

of navigable waters, including the bottomland of navigable

waters. The easement in question was granted by the

Bellaire Corporation at a time when Bellaire owned the

turning basin in fee simple. The Texas Supreme Court

has held that Bellaire had no right to grant the easement

because “an easement may not create a right or interest

in a grantee’s favor which the grantor himself did not

possess.” (26 Tex. Sup. Ct. J. 173; See App. 3a.) If it

is to be said now that Bellaire did not have the right to

ontrol the use of the turning basin. it is only because

the Texas Supreme Court has since determined that such

right was lost upon the turning basin becoming a navi-

gable body of water. This is nothing short of a retroactive

taking of Bellaire’s most valuable right—the right to use

its property the way it saw fit. Such a redefinition of

property rights is contrary to this Court’s holdings in

Loreto v. Teleprompter Manhattan CATV Corp., supra,

as well as Kaiser Aetna v. United States, supra, and

Vaughn v. Vermilion Corporation, supra. The turning

basin was private, not public, property at the time it was

conveyed by quitclaim deed to the State. As private prop-

erty, the State was obligated to pay for the acquisition

of all the rights it wanted in the property. The quitclaim

deed gave to the State only those rights the grantor

Bellaire had. The State knew or should have known of

the possibility that there were outstanding rights in the

turning basin which were not affected by the quitclaim

deed from Bellaire. The State of Texas should not now

be able, under the guise of a broad veil of regulatory

authority, to claim the entire interest in the turning basin.

The outstanding interests in the turning basin were subject

to compensation, the same as those obtained through the

quitclaim from Bellaire. Absent a condemnation of the

casement and payment therefor, the State of Texas should

not be able to take Terramar’s easement as its own. This

is exactly what the Texas Supreme Court has expressly

admitted to doing when it concluded: “Having found

the easement invalid, the title the State took by the 1978

quitclaim deed to the turning basin bed is unencumbered

by the purported easement. Consequently, construction of

the marina is subject only to the State’s consent as owner

of the bed, and authorization from the United States

government. .. .” (26 Tex. Sup. Ct. J. 172; See App. A

5a) (Emphasis added. )

It is important for this Honorable Court to understand

the circumstances under which the easement was granted

by Bellaire. First, Bellaire received good consideration

for the easement. Second, Terramar acquired the ease-

ment to regulate the use of the turning basin to protect

the members of the association from private uses of the

turning basin deemed undesirable, particularly the con-

struction contemplated by the Respondents. Third, the

Respondents took title to their property adjoining the

turning basin subject, in express terms, to Terramar’s

easement rights. The value of the easement to Terramar

and its membership was to keep the turning basin in its

undeveloped state, in order to maintain the environmental

quality and aesthetics of this turning basin, and to main-

tain its peaceful and quiet enjoyment. Bellaire received

consideration for the easement and from the State for

the remaining rights in the turning basin. The State,

through its Supreme Court, should not now be able to

take the “whole pie” when it only paid for a part. The

fact that the State justifies this taking under the Com-

merce Clause or state statute’® does not validate it or

make it any less a violation of the Taking Clause.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted to review the judgment of

the Supreme Court of Texas.

Respectfully submitted,

ROBERT M. MoorE & ASSOCIATES

By: CON MERIC

ROBERT M. MOORE

(Counsel of Record )

7511 Broadway

Galveston, Texas 77551

(409) 740-0224

Attorneys for Petitioner

Res. Cope §11.012(b) and (c) (reprinted

tatutes Involved’’).

APPENDIX A

THE TEXAS SUPREME COURT JOURNAL

C. ED. CARRITHERS AND ROBERT G. COULTER

‘.

TERRAMAR BEACH COMMUNITY

IMPROVEMENT ASSN., INC.

No. C-1066

From Galveston County, First District.

Writ of error granted April 21, 1982. (25 Tex. Sup.

Ct. Jour. 272) (Opinion of CA, 630 S.W.2d 648.)

Judgments of the courts below are reversed and the

permanent injunction by the trial court is dissolved and

the cause of action is dismissed. (Opinion by Justice Ray.

Justices Robertson and Kilgarlin not sitting. )

For Petitioners: Fred A. Lange, Houston, Texas.

For Respondents: Robert M. Moore, Galveston, Texas.

Terramar sought and obtained a permanent injunction

prohibiting the defendants, Ed Carrithers and Robert

Coulter, from constructing a marina partially on their

land, but mostly in a submerged “turning basin” in which

the plaintiff, Terramar Beach Subdivision, Inc., claims an

easement. The trial court determined Terramar owned

a perpetual, irrevocable and exclusive easement over all

the submerged land in the turning basin and found the

proposed marina would infringe on its easement rights.

Carrithers and Coulter were permanently enjoined from

constructing the marina. The court of appeals affirmed.

630 S.W.2d 648. At issue is the validity of the easement.

Finding the easement to be invalid, we reverse the judg-

ments of the courts below, dissolve the injunction and

dismiss the cause of action.

The area in dispute is an 8.27172-acre turning basin

on Galveston Island, which was submerged in 1963 by

artificial means. The parties have stipulated that the turn-

ing basin is a navigable body of water, open to the Gulf

of Mexico. At the time of submergence, the HGC Devel-

opment Corporation owned legal title to all of the land

which both plaintiffs and defendants now own. The turn-

ing basin and the canals leaving the basin were created

by HGC from the tract of land. HGC then conveyed all

of its rights to Timewealth Corporation, its trustee in

bankruptcy. Subsequently, Timewealth Corporation con-

veyed the turning basin and canals to the 7500 Bellaire

Corporation. In 1975, the Bellaire Corporation granted

Cary White an easement of the full, free and uninterrupted

use of all the turning basin and the waters overlying the

basin. In turn, White assigned the easement to Terramar.

Carrithers and Coulter acquired their property rights from

the Bellaire Corporation subject to Terramar’s easement.

In 1978, the bed of the turning basin was conveyed by

the Bellaire Corporation to the State of Texas by quit-

claim deed. Carrithers and Cou!ter obtained a permit in

1980 from the United States Army Corps of Engineers to

construct a marina located mainly in the turning basin.

Terramar sought this injunction prohibiting construction

on the basis of its exclusive easement to the land and

the overlying navigable waters. The trial court's injunctive

order permanently prohibits Carrithers and Coulter from

essentially placing any objects in or on the land area,

and on or over the surface water of the “turning basin”

where Terramar’s easement exists, or otherwise obstruct-

ing, impairing, or interfering with Terramar’s exclusive

easement. The order expressly provides, however, that it

should not be construed to limit or enjoin any person

from using the waters of the turning basin for swimming,

boating, fishing, or water transportation.

In Texas. the state owns the water, the beds and shores

of the Gulf of Mexico. TEx. NAT. RES. CODE ANN. art.

11.012(c). The waters of public navigable streams are

held by the State in trust for the public, primarily for

navigation purposes. Morl v. Boyd, 116 Tex. &2, 111,

286 S.W. 458 (1926). Texas has full sovereignty over

the waters of the Gulf within its boundaries, subject to

the United States government's right to exercise complete

dominion over navigable waters under the “commerce

clause” of the Constitution. U.S. Const. art. I, § 8, cl. 3;

Tex. NAT. RES. CoDE ANN. art. 11.02(c).

An easement may not be created by express grant, or

otherwise, if it is in contravention of a statute or is

against public policy. See Woolsey v. Panhandle Refining

Co.. 131 Tex. 449, 116 S.W.2d 675 (1938); Neff v.

Ulmer, 404 §.W.2d 644, 646 (Tex. Civ. App.—Amarillo

1966. writ ref'd n.r.e.); Wilson v. Meredith, Clegg &

Hunt, 268 S.W.2d 511, 518 (Tex. Civ. App.—Beaumont

1954. writ ref'd n.r.e.). Further, an easement may not

create a right or interest in a grantee’s favor which the

grantor himself did not possess. See Drye v. Eagle Rock

Ranch, Inc., 364 S.W.2d 196, 202 (Tex. 1962). The

exclusive right to control, impede or otherwise limit navi-

gable waters in this State belongs to the governments of

Texas and the United States. An individual landowner

is without power to convey such a right. Thus, as grantor,

the Bellaire Corporation could not give White (or Terra-

mar as his assignee) the exclusive use of navigable waters

which are owned by the State of Texas. We hold that a

grant of the easement purporting to limit the use of

navigable waters conflicts with the state and United States

governments’ sovereignty over such waters. U.S. Const.

art. I, § 8; Tex. Nat. Res. Cope Ann. art. 11.012(b).

The Bellaire Corporation purported to convey a per-

petual exclusive easement and right of way not only for

the full, free and uninterrupted use of the tract of land.

but also for the waters overlying the land. Terramar con-

tends the easement across the underlying beds would still

be valid and enforceable even though the public might

own the waters above the bed, relying on Port Acres

Sportsman Club v. Mann, 541 S.W.2d 847 (Tex. Civ.

App.—Beaumont 1976, writ refd n.r.e.). In Mann, a fee

simple owner of the bed of a navigable stream was en-

joined and prevented from maintaining a fence across the

navigable stream and from preventing the defendants and

other members of the general public the right of free

passage. The court in Mann held that since the waters

over the plaintiff's land were not navigable at the time

the land was acquired, the subsequent event of the waters

becoming navigable could not deprive plaintiffs of their

title to the underlying land. Although the fee owner owned

the bed. he could not control the use of the bed by main-

taining a fence to prevent the public use of the over-

lying waters. Mann, supra at 849. The facts of the instant

case are distinguishable in that Terramar does not own

a fee simple interest in the bed, but instead it claims an

easement therein.

Having found the easement invalid, the title the State

took by the 1978 quitclaim deed to the turning basin

bed is unencumbered by the purported easement. Con-

sequently, construction of the marina is subject only to

the State’s consent as owner of the bed, and authorization

from the United States government under 33 U.S.C.

Accordingly, the judgments of the courts below are

reversed and the permanent injunction issued by the trial

court 1s hereby dissolved.

c. LL. RAY

Justice

Justices Robertson and Kilgarlin not sitting.

Opinion delivered January 5, 1983.

APPENDIX B

C. Ed. CARRITHERS and Robert G. Coulter.

Appellants,

Vv.

TERRAMAR BEACH COMMUNITY

IMPROVEMENT ASSOCIATION, INC.,

Appellee.

No. 18026

COURT OF APPEALS OF TEXAS

Houston (1st Dist.).

Nov. 19, 1981.

Rehearing Denied Jan. 7, 1982.

Before EVANS, C. J., and DOYLE and STILLEY, JJ.

EVANS, Chief Justice.

The defendants appeal from a permanent injunction

prohibiting them from constructing a marina on their

land and in a submerged “turning basin” of the Terramar

Beach Subdivision in Galveston County.

The trial court determined that the plaintiff owned a

perpetual, irrevocable and exclusive easement over all the

submerged land in the turning basin and found that the

proposed marina would infringe on the plaintiff's ease-

ment rights.

The principal contention of the defendants is that they

hold a valid permit which was granted by the United

States Army Corps of Engineers to construct the pro-

posed marina, and that this permit supercedes any ease-

ment rights previously held by the plaintiff. In Support

of this contention, the defendants argue that State and

federal regulatory agencies have exclusive authority to

control all navigable waters, and that the plaintiffs ease-

ment rights must therefore be considered subservient to

their rights under the federally issued permit,

The parties stipulated that the area in dispute was a

navigable body of water, submerged by artificial means

in 1963 from dry land owned by the plaintiff's predecessor

in title. The easement held by the plaintiff was created

by written instrument in May 1975, and the defendants

acquired their property rights subject to the plaintiff's

easement. The trial court found the following facts, which

are unchallenged.

1. Plaintiff is the owner of a perpetual, irrevoc-

able and exclusive easement and right of way which

includes the full, free and uninterrupted use of all

of the turning basin of Terramar Beach Subdivision

in Galveston County and the waters overlying said

turning basin.

2. Defendants, owners of certain lands close to

the turning basin, were granted a permit from the

United States Army Corps of Engineers to construct

a marina, bulkhead, docks, boat ramps, timber pil-

ings, walkways and boat sheds. part of which would

be located on their land, but most of which would

be located in the turning basin where the plaintiff

has its easement.

3. Defendants’ proposed project would intrude

into the plaintiffs exclusive easement to the land

beneath the waters of the turning basin and would

deprive plaintiff and its members of the rights held

by them under such easement.

4. Although the surface wate

basin are open for public use, the underlyin

has never been dedicated to or appropriated for

public use and the plaintiff

its easement.

The trial court’s injunctive order permanently prohibits

the defendants from:

(1) Digging or removin

earth, sand, marl or in any

blocking, filling in, driving

nchoring into

way displacing same

pilings of any size or length into, a

or on, dumping, dredging, or placin .

nent or stationary objects or appurtenances in or

on the land area where the Plaintiffs exclusive

easement exists:

(2) Placing any objects on or over the surface waters

of the “turning bain” where Plaintiffs easement

exists which are in any way designed or meant

to facilitate the temporary or permanent storage

of boats, barges, boat ramps, docks or any facility

which in any way blocks or impedes the full and

complete usage of the surface waters of the “turn-

ing basin” where Plaintiff's easement exists:

(3) Obstructing or in any other manner impairing or

interfering with the Plaintiff's exclusive easement.

The order further provides that it shall not be con-

strued to limit or enjoin any person from using the waters

of the turning basin for swimming, boating, fishing or

water transportation.

[1] It is undisputed that the parties hold under a

common grantor and that the property rights of the de-

fendants were acquired subject to the easement held by

the plaintiff in the turning basin area. The instrument

conveying the easement to the palintiff's predecessor in

title contains covenants of general warranty, and the de-

fendants, claiming title under such common source of

Ownership, are therefore estopped to question the validity

of the estate which the deed purports to convey. Burns

v. Goodrich, 392 S.W.2d 689, 691 (Tex. 1965). Thus,

because of the relationship between the plaintiff and the

defendants, it is immaterial that the waters overlying the

bed of the turning basin are navigable. Lorino v. Crawford

Packing Co., 142 Tex. 51, 175 S.W.2d 410, 416 (1943).

[2] The grant of a permit by the U. S. Army Corps

of Engineers to the defendants did not bestow upon them

any property rights with respect to the submerged lands

in the turning basin. In fact, both the permit and the

Corps’ rules and regulations upon which the permit was

issued, expressly provide to the contrary:

“Authorization of work or structures by the Depart-

ment of the Army does not convey a property right

nor authorize any injury of property or invasion of

other rights.” 33 C.F.R., § 320.4(g) (1980).

The permit itself provides:

That this permit does not convey any property rights,

either in real estate or material, or any exclusive

privileges; and, that it does not authorize any injury

to property or invasion of rights or any infringement

10a

of Federal, State or local laws and regulations, nor

does it obviate the requirement to obtain State or

local assent required by law for the activity author-

ized herein.

The grant of a permit by the U. S. Army Corps of

Engineers merely reflects the determination by that agency

that it has reviewed and approved the proposed activity

as being in the “public interest” with respect to navigation,

fish and wildlife, conservation, pollution and other en-

vironmental considerations. 33 C.F.R. § 209.120 (1968);

Zabel v. Tabb, 430 F.2d 199 (Sth Cir. 1970).

[3] No dispute exists between the plaintiff and the

public at large concerning the use of the turning basin,

and the injunction order expressly recognizes the rights

of the general public to make appropriate use of the

waters overlying the bed of the turning basin. Thus, there

is no conflict between the rights of the plaintiff, which

the injunction order seeks to protect, and the rights of

the public, which are protected by State and Federal laws.

The relationship between the plaintiff and the defendant

makes it unnecessary to decide the question of ownership

of the bed of the turning basin as between the plaintiff

and the State of Texas, and this court has made no

determination with respect to that issue.

[4] The defendants further contend that the sub-

mergence of the turning basin effected an abandonment

of the easement, arguing that the public character of the

waters made it impossible for the owner of the easement

to control the installation of piers, pilings and docks in

the turning basin without interference with the public's

right of use. This contention will be overruled. It is un-

disputed that the purpose of the easement was to control

The plaintiff's

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l2a

APPENDIX C

NO. 118.560

IN THE DISTRICT COURT OF

GALVESTON COUNTY, TEXAS

S6TH JUDICIAL DISTRICT

TERRAMAR BEACH COMMUNITY IM-

PROVEMENT ASSOCIATION, INC.

C. ED. CARRITHERS and

ROBERT C. COULTER

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

TO THE HONORABLE JUDGE OF SAID COURT:

After the trial of the above styled cause, subsequent to

the entry of judgment, and upon timely request of the

defendants, I. ALLAN LERNER, the presiding Judge

of the trial in the above cause, rendered the following

FINDINGS OF FACT AND CONCLUSIONS OF LAW

which are hereby ORDERED, ADJUDGED and DE-

CREED to be a part of the proceedings in this cause, to

be filed by the District Clerk as a part of the record:

FINDINGS OF FACT

TERRAMAR BEACH COMMUNITY IMPROVE-

MENT ASSOCIATION, INC. is the owner of a per-

petual, irrevocable and exclusive easement and right-of-

way which include the full, free and uninterrupted use of

all of the Turning Basin of Terramar Beach Subdivision

l3a

situated in Galveston County, Texas and the waters over-

lying said Turning Basin, said area being more particularly

described in that instrument which is recorded in Volume

2899, Pages 674-678 of the Deed Records of Galveston

County, Texas, to-wit:

8.27172 acre tract, more or less, out of Division

Fourteen (14), Section Thirteen (13), Hall and

Jones Survey, Abstract 121, Galveston County,

Texas, being the same tract described in Exhibit

“A” attached to that certain instrument for easement

executed by 7500 Bellaire Corp. to Cary C. White,

Trustee, dated May 1, 1975, recorded in Volume

2569 at Pages 466-469, in the Deed Records of

Galveston County, Texas.

The Defendants, through ROBERT G. COULTER,

Trustee, own certain real property described of record in

the Deed Records of Galveston County, Texas, Volume

3011, Pages 655-659, and Volume 3036, Pages 421-425

in Section 13, Hall and Jones Survey, Galveston Island,

Galveston County, Texas and the lands described in these

Deeds are close to the Turning Basin described in Finding

Number I.

IT.

The Turning Basin was created mechanically on or

about 1963 from a dry land area owned by the Plaintiff's

predecessor in title and is now an extension of that body

of water known as “West Bay” and is considered to be a

navigable body of water.

IV.

The Plaintiff's easement was originally given and

created subsequent to the creation of the water area de-

l4a

scribed above by the successors in interest to the fee

simple title of the land where the Turning Basin was

created.

The Defendants were granted a permit from the United

States Army Corps of Engineers pursuant to Section 10

of the River and Harbor Act of 1899, which would allow

them to construct a marina, bulkhead, docks, boat ramps,

timber pilings, walkways and boat sheds, part of which

would be located on the Defendants’ land, but most of

which would be located in the Turning Basin and the area

where the Plaintiff has its easement.

VI.

Such a project or development by the Defendants would

be an intrusion into the Plaintiff's exclusive easement to

the land beneath the waters of the Turning Basin.

VIL.

The project would deprive the Plaintiff and its mem-

bers those rights held by them and the same would con-

stitute an infringement of the rights to the exclusive, full

and uninterrupted use of the easement.

VIII.

Although the surface waters of the Turning Basin are

open for public use and are navigable waters, the under-

lying land has not been dedicated to nor appropriated for

public use.

IX.

On August 14, 1978 the 7500 Bellaire Corporation

conveyed a Quit Claim Deed of the land underlying the

15a

Turning Basin to the State of Texas. Such Deed is re-

corded in Volume 3021, Pages 250-252, of the Deed

Records of Galveston County, Texas. Such Deed to the

State of Texas was subsequent to and subject to the

Plaintiff's exclusive easement rights.

The Defendants acquired their pr roperty rights and

permits subsequent to Plaintiff's acqu! isition of their ease-

ment and with knowledge of Plaintiff's claim of easement

rights.

XI.

The Plaintiff has never abandoned its easement.

XII.

The Turning Basin is very small and, based upon the

amount of boat traffic which comes into the area, the

Basin would be much too small to accommodate any sub-

stantial outside boat traffic.

XII.

If the Turning Basin is built in accordance with the

Defendants’ plans and specifications, there would be a

substantial increase in the amount of boat traffic in the

area: and, boat storage in the Turning Basin area will

cause weakening of the channel bulkheads, pollution and

damage to the aesthetics of the Turning Basin, accelera-

tion of the fill-in where the channel enters Galveston Bay,

will increase the necessity of maintenance dredging and

generally degrade the quality of life for the subdivision

as a whole by attracting a large number of people in such

16a

a small area, causing greater road congestion, noise and

disturbance of the peaceful and tranquil atmosphere which

exists in the subdivision.

CONCLUSIONS OF LAW

Even though the Defendants have obtained a permit

for the construction of the improvements referred to in the

FINDINGS OF FACT, the permit is not controlling since,

although the permit may have been required by the Corps

of Engineers, consent by the Plaintiff would have also

been required since the underlying lands were not public

lands, or if they had become public lands, the public’s

rights are subject to the Plaintiff's easement to the land

beneath the water of the Turning Basin.

The Plaintiff has no adequate remedy of law or other-

wise for the harm threatened to be done by the Defend-

ants and it and its members will suffer irreparable harm,

damages and injuries by virtue of such intrusion in and

on such a small area as the Turning Basin, unless the

proposed project and development are enjoined.

ENTERED this ______ day of , 1981.

JUDGE ALLAN LERNER,

Acting Judge,

District Court of Galveston

County, Texas—S6th Judicial

District

17a

APPENDIX D

NO. C-1066

From Galveston County, First District

C. ED CARRITHERS AND

ROBERT G. COULTER

Petitioners

Vv.

TERRAMAR BEACH COMMUNITY IM-

PROVEMENT ASSOCIATION, INC.

Respondent

This cause was heard on writ of error to the Court of

Appeals for the First Supreme Judicial District. After con-

sideration of the original transcript and the transcript

showing the proceedings in the Court of Appeals, it is the

opinion of the Court, (Justices Robertson and Kilgarlin

\ not sitting.), that there was error in the judgments of the

o courts below and judgment is rendered as follows:

It is ordered that: 1) the judgments of the Court of

Appeals and the trial court

which permanently enjoined

Carrithers and Coulter from

constructing a marina are re-

versed.

2) The injunction is dissolved and

the cause of action is dismissed

in accordance with the opinion

of this Court.

Improvement Association, Inc

shall pay the costs in this Court

the Court of Appeals and the

ict Court

ia}

are |

io al

a+ w

em |

ne costs

—

. a + 17 Bi

WIrPTer Chail PCO RP

JULLOl Sildil recover

they incurred in said courts

from Terramar Beach Com-

munity Improvement Associa-

tion, Inc

jgment with a copy of the opinion

t with C

District Court of Galveston

(Opinion of the Court by Justice Ray)

19a

APPENDIX E

POINTS OF ERROR TO COURT OF CIVIL APPEALS

FIRST POINT OF ERROR

THE TRIAL COURT ERRED AND ABUSED ITS

DISCRETION WHEN IT GRANTED APPELLEE’S

PETITION FOR A PERMANENT INJUNCTION BE-

CAUSE SUCH ARBITRARY ACTION BY THE

TRIAL COURT WAS CLEARLY CONTRARY TO

THE COMMERCE CLAUSE OF THE U. 5S. CON-

STITUTION AND THE LAWS OF THE STATE OF

TEXAS WHICH PLACE THE SOLE CONTROL

OVER NAVIGABLE STREAMS OR WATERS IN

REGULATORY AGENCIES OTHER THAN PRIV-

ATE PARTIES CLAIMING UNDER AN EXCLU-

SIVE EASEMENT AS THE APPELLEE IN THIS

CASE.

SECOND POINT OF ERROR

THE TRIAL COURT ERRED AND ABUSED ITS

DISCRETION WHEN IT GRANTED APPELLEE’S

PETITION FOR A PERMANENT INJUNCTION BE-

CAUSE APPELLEE THROUGH ITS OWNERSHIP

OF AN EASEMENT DID NOT HAVE THE RIGHT

AND POWER TO PRE-EMP AND VETO A PERMIT

GRANTED UNDER THE COMMERCE CLAUSE

THROUGH THE U. S. CORPS OF ENGINEERS TO

THE APPELLANTS UNDER THE AUTHORITY OF

SUCH PERMIT.

THIRD POINT OF ERROR

THE TRIAL COURT ERRED IN ITS FINDING OF

FACT NO. 1 THAT THE APPELLEE WAS THE

20a

OWNER OF A PERPETUAL. IRREVOCABLE AND

EXCLUSIVE EASEMENT AND RIGHT-OF-WAY

WHICH INCLUDED THE FULL, FREE AND UN-

INTERRUPTED USE OF ALL OF THE TURNING

BASIN AND THE WATERS OVERLYING SAID

TURNING BASIN, COVERING 8.27172 ACRES. IN

THAT THE RECORD SHOWS THAT THE WATERS

COVERING SAID TURNING BASIN WERE NAVI-

GABLE WATERS, AND HAD BEEN SINCE 1963

WHICH WAS PRIOR TO THE CREATION OF THE

EASEMENT CLAIMED BY APPELLEE, ALL OF

WHICH PRECLUDED THE APPELLEE FROM EX-

ERCISING CONTROL OVER SUCH NAVIGABLE

WATERS AND THE ERECTION OF ANY STRUC-

TURES WITHIN SUCH WATERS. SINCE SUCH CON-

TROL WAS VESTED IN THE U. S. CORPS OF ENGI-

NEERS BY THE COMMERCE CLAUSE OF THE

U. S$. CONSTITUTION.

FOURTH POINT OF ERROR

THE TRIAL COURT ERRED IN ITS FINDING OF

FACT NO. VI AND VII THAT THE PROJECT OR

DEVELOPMENT FOR WHICH THE APPELLANTS

HAD BEEN GRANTED A PERMIT BY THE U. S.

ARMY CORPS OF ENGINEERS PURSUANT TO

SECTION 10 OF THE RIVER AND HARBOR ACT

OF 1899, WHICH WOULD ALLOW THEM TO CON.

STRUCT A MARINA, BULKHEAD, DOCKS, BOAT

RAMPS, TIMBER PILINGS, WALKAWAYS AND

BOAT SHEDS, PART OF WHICH WOULD BE LO.

CATED ON APPELLANTS LAND, BUT MOST OF

WHICH WOULD BE LOCATED IN THE TURNING

BASIN AND THE AREA WHERE APPELLEE HAS

2la

ITS EASEMENT, WOULD BE AN INTRUSION INTO

APPELLEES EXCLUSIVE EASEMENT TO THE

LAND BENEATH THE WATERS OF THE TURNING

BASIN, AND AN INFRINGEMENT TO THE RIGHTS

TO THE EXCLUSIVE, FULL AND UNINTERRUPTED

USE OF THE EASEMENT, SINCE SUCH FINDINGS

ARE NOT SUPPORTED BY THE RECORD IN THAT

THE ERECTION OF THE MARINA AND THE

OTHER STRUCTURES COMPLAINED OF ARE AL-

LOWED BY VIRTUE OF THE CONTROL IN THE

U. S. CORPS OF ENGINEERS OVER NAVIGABLE

STREAMS TO GRANT PERMITS FOR SUCH PRO-

JECTS IRRESPECTIVE OF ANY RIGHTS HELD BY

PRIVATE EASEMENT HOLDERS WHICH ARE SUB-

SERVIENT TO SUCH PERMITS BY ACT OF CON-

GRESS, AND SUCH A PERMIT HAD BEEN GRANT-

ED TO APPELLANTS.

FIFTH POINT OF ERROR

THE TRIAL COURT ERRED IN ITS CONCLUSION

OF LAW NO. I THAT EVEN THOUGH THE AP-

PELLANTS HAVE OBTAINED A PERMIT FOR THE

CONSTRUCTION OF THE IMPROVEMENTS RE-

FERRED TO IN THE FINDINGS OF FACT, THE

PERMIT IS NOT CONTROLLING SINCE, AL-

THOUGH THE PERMIT MAY HAVE BEEN RE-

QUIRED BY THE CORPS OF ENGINEERS, CON-

SENT BY THE APPELLEE WOULD HAVE ALSO

BEEN REQUIRED SINCE THE UNDERLYING

LANDS WERE NOT PUBLIC LANDS, OR IF THEY

HAD BECOME PUBLIC LANDS, THE PUBLIC’S

RIGHTS ARE SUBJECT TO APPELLEES EASE-

MENT TO THE LAND BENEATH THE WATER OF

22a

THE TURNING BASIN, BECAUSE SUCH CONSENT

OF THE APPELLEE WOULD NOT BE REQUIRED

WHERE A PERMIT HAS BEEN ISSUED BY THE

U. S$. CORPS OF ENGINEERS UNDER THE “COM-

MERCE CLAUSE” WHICH GIVES EXCLUSIVE CON-

TROL OF NAVIGABLE BODIES OF WATERS TO

THE FEDERAL GOVERNMENT, THEREFORE, ANY

SUCH ACTION BY THE APPELLEE AS HOLDER

OF THE EASEMENT WOULD BE UNLAWFUL AND

NOT AUTHORIZED BY CONGRESS AND WOULD

BE AN OBSTRUCTION TO THE NAVIGATION OF

SUCH TURNING BASIN AND AN INTERFERENCE

WITH SAME.

SIXTH POINT OF ERROR

THE TRIAL COURT ERRED IN ITS CONCLUSION

OF LAW NO. THAT THE APPELLEE HAS NO

ADEQUATE REMEDY OF LAW OR OTHERWISE

FOR THE HARM THREATENED TO BE DONE BY

THE APPELLANTS AND IT AND ITS MEMBERS

WILL SUFFER IRREPARABLE HARM, DAMAGES

AND INJURIES BY VIRTUE OF SUCH INTRUSION

IN AND ON SUCH A SMALL AREA AS THE TURN

ING BASIN. UNLESS THE PROPOSED PROJECT

AND DEVELOPMENT ARE ENJOINED, BECAUSE

APPELLEE AS THE PRIVATE HOLDER OF THE

EASEMENT HAS NO STANDING TO ENJOIN THE

ACTIONS OF APPELLANTS ACTING UNDER THE

AUTHORITY OF THE PERMIT ISSUED TO THEM

BY THE U. S. CORPS OF ENGINEERS WHO, UN-

DER THE “COMMERCE CLAUSE” HAD THE EX-

CLUSIVE CONTROL OVER THE PLACING OF

STRUCTURES IN THE NAVIGABLE WATERS OF

23a

THE TURNING BASIN TO THE EXCLUSION OF

THE EASEMENT RIGHTS CLAIMED BY APPEL-

LEE.

SEVENTH POINT OF ERROR

THE TRIAL COURT ERRED IN ITS CONCLUSION

OF LAW NOS. I, VI, VII, VIII AND IX, IN HOLDING

THAT APPELLANT'S PROPOSED STRUCTURES

WITHIN THE TURNING BASIN WOULD BE AN

INFRINGEMENT OF APPELLEE'S EASEMENT;

THAT THE PUBLIC’S RIGHTS ARE SUBJECT TO

APPELLEE’S EASEMENT BECAUSE SUCH HOLD-

INGS ARE CONTRARY TO LAWS AND STATED

POLICY OF THE STATE OF TEXAS AS CONTAIN:

ED IN V.A.T.S. NATURAL RESOURCES ACT SEL.

a2.

EIGHTH POINT OF ERROR

THE TRIAL COURT ERRED IN ITS FINDING OF

FACT NO. XI THAT THE APPELLEE HAS NEVER

ABANDONED ITS EASEMENT SINCE BY THE

RECORD IN THIS CASE IT IS SEEN THAT THE

PURPOSE OF THE EASEMENT WAS TO LIMIT

THE USE OF THE OVERLYING WATERS IN

TRAVELING TO AND THE USE OF THE MARINA

THEN IN EXISTENCE, OR TO THE LANDS AD-

JOINING SUCH BASIN, AND TO LIMIT THE PLAC-

ING OF STRUCTURES WITHIN THE BASIN AREA,

AND NOT ANY INDICATED USE OF THE BED OF

SUCH BASIN WHICH IS OF NO BENEFIT AS CON:

CERNS THE USE OF THE OVERLYING NAVI-

GABLE WATER IN SUCH BASIN. WHEN THE

OVERLYING WATERS WENT “PUBLIC” THE PUR-

24a

POSE AND OBJECT OF THE 1975 EASEMENT HAD

NO FURTHER REASON FOR ITS EXISTENCE AND

BECAME DORMANT, AND HAD THE SAME STAT-

US AS IF ABANDONED, SINCE THE OWNERSHIP

OF THE BED OF ANY NAVIGABLE STREAM HAD

NO RELATION TO A LIMITATION OVER THE

CONTROL TO BE EXERCISED OVER NAVIGABLE

WATERS UNDER THE “COMMERCE CLAUSE” BY

THE U. S. CORPS OF ENGINEERS.

NINTH POINT OF ERROR

THE TRIAL COURT ERRED IN ITS FINDINGS OF

FACT NO. XIII THAT IF THE TURNING BASIN

IS BUILT IN ACCORDANCE WITH THE APPEL-

LANT’S PLANS AND SPECIFICATIONS FOR WHICH

A PERMIT HAD BEEN ISSUED BY THE U. S. CORPS

OF ENGINEERS, THERE WOULD BE A SUBSTAN-

TIAL INCREASE IN THE AMOUNT OF BOAT

TRAFFIC IN THE AREA; AND, BOAT STORAGE

IN THE TURNING BASIN AREA WILL CAUSE

WEAKENING OF THE CHANNEL BULKHEADS,

POLLUTION AND DAMAGE TO THE AESTHETICS

OF THE TURNING BASIN, ACCELERATION OF

THE FILL-IN WHERE THE CHANNEL ENTERS

GALVESTON BAY, WILL INCREASE THE NECES-

SITY OF MAINTENANCE DREDGING AND GEN-

ERALLY DEGRADE THE QUALITY OF LIFE FOR

THE SUBDIVISION AS A WHOLE BY ATTRACT-

ING A LARGE NUMBER OF PEOPLE IN SUCH A

SMALL AREA, CAUSING GREATER ROAD CON-

GESTION, NOISE AND DISTURBANCE OF THE

PEACEFUL AND TRANQUIL ATMOSPHERE WHICH

25a

EXISTS IN THE SUBDIVISION, SINCE ALL OF THE

ABOVE FACTORS ARE CONCERNED WITH NAVI-

GABLE WATERS AND NAVIGATION PROJECTS

AND ERECTION OF STRUCTURES THEREON UD-

DER THE EXCLUSIVE CONTROL OF THE “COM-

MERCE CLAUSE” AND THE U. S. CORPS OF EN-

GINEERS AND ARE NOT REACHED BY THE

EASEMENT CLAIMED BY APPELLEE.

26a

APPENDIX F

ASSIGNMENTS OF ERROR TO

SUPREME COURT OF TEXAS

FIRST ASSIGNMENT OF ERROR

THE COURT OF CIVIL APPEALS ERRED IN

AFFIRMING THE JUDGMENT OF THE TRIAL

COURT WHICH REPRESENTED AN ABUSE OF

THE TRIAL COURT'S DISCRETION WHEN IT

GRANTED RESPONDENT'S PETITION FOR A

PERMANENT INJUNCTION BECAUSE SUCH AR-

BITRARY ACTION BY THE TRIAL COURT WAS

CLEARLY CONTRARY TO THE COMMERCE

CLAUSE OF THE UNITED STATES CONSTITUTION

AND THE LAWS OF THE STATE OF TEXAS WHICH

PLACES THE SOLE AND EXCLUSIVE CONTROL

OVER NAVIGABLE STREAMS OF WATERS IN

REGULATORY AGENCIES OTHER THAN PRIVATE

PARTIES SUCH AS THE RESPONDENT CLAIMING

UNDER AN EXCLUSIVE EASEMENT UNDER NAV-

IGABLE WATERS.

FIFTH ASSIGNMENT OF ERROR

THE COURT OF CIVIL APPEALS ERRED IN

ITS HOLDING THAT THE USE PERMITTED IN

THE INJUNCTION ORDER CALLED “APPROPRI-

ATE USE” IS NOT SUCH A RIGHT THAT THE DIS-

TRICT COURT OR THE COURT OF CIVE. APF-

PEALS COULD LABEL, LIMIT AND RESTRICT

BUT IS ONE CONTROLLED BY THE LAWS AP-

PLICABLE TO THE USE OF NAVIGABLE WATERS

AND THE COMMERCE CLAUSE AS ADMINIS-

27a

TERED BY THE APPROPRIATE GOVERNMENTAL

AGENCIES AND IS NOT DEPENDENT UPON OR

SUBJECT TO THE WILL OF PRIVATE OWNER-

SHIP.

EIGHTH ASSIGNMENT OF ERROR

THE COURT OF CIVIL APPEALS ERRED IN

ITS HOLDING THAT THE IMPROVEMENTS AU-

THORIZED TO BE CONSTRUCTED UNDER THE

PERMIT HELD BY THE PETITIONERS FROM THE

U. S. ARMY CORPS OF ENGINEERS DID NOT PRO-

MOTE THE COMMERCE OF THE STATE AL-

THOUGH OTHER AUTHORITIES HOLD THAT THE

ERECTION OF PIERS, WHARVES AND LIKE IM-

PROVEMENTS ALONG THE WATERS ARE IN THE

INTEREST OF COMMERCE AND TRADE.

TENTH ASSIGNMENT OF ERROR

THE COURT OF CIVIL APPEALS ERRED IN

ITS HOLDING THAT PETITIONERS CONTENDED

THAT THE SUBMERGENCE OF THE TURNING

BASIN EFFECTED AN ABANDONMENT OF THE

EASEMENT BECAUSE THE EASEMENT DID NOT

EXIST AT THE TIME OF THE SUBMERGENCE OR

WHEN THE WATERS BECAME PUBLIC, AND THE

GIST OF PETITIONERS CONTENTION WAS THAT

THE USE OF THE OVERLYING PUBLIC WATERS

OF THE BED OF THE TURNING BASIN RENDER-

ED SUCH EASEMENT DORMANT BECAUSE ANY

USE THEREOF WOULD INTERFERE WITH THE

USE BY THE PUBLIC OF THE OVERLYING PUB-

LIC WATERS.

28a

TWELFTH ASSIGNMENT OF ERROR

THE COURT OF CIVIL APPEALS ERRED IN

AFFIRMING THE TRIAL COURT'S CONCLUSION

OF LAW NO. I. THAT EVEN THOUGH THE PETI-

TIONERS HAVE OBTAINED A PERMIT FOR THE

CONSTRUCTION OF THE IMPROVEMENTS RE:

FERRED TO IN THE FINDINGS OF FACT, THE

PERMIT IS NOT CONTROLLING SINCE, AL-

THOUGH THE PERMIT MAY HAVE BEEN RE-

QUIRED BY THE CORPS OF ENGINEERS, CON.

SENT BY THE RESPONDENT WOULD HAVE AL:

SO BEEN REQUIRED SINCE THE UNDERLYING

LANDS WERE NOT PUBLIC LANDS, OR IF THEY

HAD BECOME PUBLIC LANDS, THE PUBLIC'S

RIGHTS ARE SUBJECT TO RESPONDENT'S EASE-

MENT TO THE LAND BENEATH THE WATER OF

THE TURNING BASIN, BECAUSE SUCH CONSENT

OF THE RESPONDENT IS NOT REQUIRED WHERE

A PERMIT HAS BEEN ISSUED BY THE U. S.

CORPS OF ENGINEERS UNDER THE “COMMERCE

CLAUSE” WHICH GIVES SOLE AND EXCLUSIVE

CONTROL OF NAVIGABLE BODIES OF WATER

TO THE FEDERAL GOVERNMENT, AND THE

STATE GOVERNMENTS, THEREFORE, ANY SUCH

ACTION BY THE RESPONDENT AS HOLDER OF

THE EASEMENT WOULD BE UNLAWFUL AND

NOT AUTHORIZED BY CONGRESS AND WOULD

BE AN OBSTRUCTION TO THE NAVIGATION OF

SUCH TURNING BASIN AND AN INTERFERENCE

WITH USE OF SAME.

FIFTEENTH ASSIGNMENT OF ERROR

THE COURT OF CIVIL APPEALS ERRED IN

29a

AFFIRMING THE TRIAL COURT'S FINDING OF

FACT NO. 1 THAT THE RESPONDENT WAS THE

SOLE OWNER OF A PERPETUAL, IRREVOCABLE

AND EXCLUSIVE EASEMENT AND RIGHT-OF-

WAY WHICH INCLUDED THE FULL, FREE AND

UNINTERRUPTED USE OF ALL OF THE TURNING

BASIN AND THE WATERS OVERLYING SAID

TURNING BASIN, COVERING 8.27172 ACRES, IN

THAT THE RECORD SHOWS THAT THE WATERS

COVERING SAID TURNING BASIN WERE NAVI-

GABLE WATERS, AND HAD BEEN SINCE 1963

WHICH WAS PRIOR TO THE CREATION OF THE

EASEMENT CLAIMED BY RESPONDENT, ALL OF

WHICH PRECLUDED THE RESPONDENT FROM

EXERCISING CONTROL OVER SUCH NAVIGABLE

WATERS, SINCE THE CONTROL WAS VESTED IN

THE U. S. CORPS OF ENGINEERS BY THE “COM-

MERCE CLAUSE” OF THE U. S. CONSTITUTION

AND IMMUNE FROM THE INFRINGEMENT BY

THOSE HOLDING PRIVATE RIGHTS.

SEVENTEENTH ASSIGNMENT OF ERROR

THE COURT OF CIVIL APPEALS ERRED IN

ITS HOLDING THAT THIS CASE SHOULD BE

TRIED ON THE THEORY THAT THE PROPERTY

WAS “DRY LAND” AND APPLIED RULES SO AP-

PLICABLE INSTEAD OF TREATING THE EASE-

MENT CLAIMED BY RESPONDENT AS BEING UN.

DER NAVIGABLE WATERS AND THEREFORE

SUBJECT TO NAVIGABLE WATER DOCTRINES

AND RULES.

30a

NINETEENTH ASSIGNMENT OF ERROR

THE COURT OF CIVIL APPEALS ERRED IN

ITS HOLDING THAT THE RESPONDENT COULD

EXERCISE RIGHTS IN THE RESTRICTION OF

STRUCTURES ERECTED THEREIN AND THE CON.

TROL OF MARINE TRAFFIC, UNDER ITS EASE-

MENT UNDER NAVIGABLE WATERS WITHOUT

REGARD TO THE PUBLIC CHARACTER OF SUCH

WATERS AND EVEN THOUGH SUCH EASEMENT

RIGHTS WERE CREATED AFTER THE BED OF

THE TURNING BASIN WAS SUBMERGED BE-

NEATH NAVIGABLE WATERS.

3la

APPENDIX G

thF:

THE STATE OF TEXAS

COUNTY OF GALVESTON _ §

KNOW ALL MEN BY THESE PRESENTS:

THAT 7500 BELLAIRE CORP., a Texas corporation

(also known as “7500 Bellaire Corporation”), with its

principal place of business in the County of Harris, State

of Texas (herein called “Grantor”), for and in considera-

tion of Ten and No/100 Dollars ($10.00) and other

good and valuable considerations paid to Grantor by

CARY C. WHITE, TRUSTEE, of Harris County, Texas

(herein called “Grantee”), the receipt and sufficiency of

which is hereby acknowledged, does hereby GRANT and

CONVEY unto Grantee, his successors and assigns, a

perpetual, EXCLUSIVE easement and right of way for

the full, free and uninterrupted use of all the following

described tract of land situated in Galveston County,

Texas, and the waters overlying said tract of land, to-wit:

A tract of land containing 8.27172 acres, more or

less, out of Division 4, Section 13, of the Hall and

Jones Survey, Abstract No. 121, Galveston County,

Texas, said 8.27172 acre tract of land being more

particularly described in Exhibit “A” attached hereto

and made a part hereof for all purposes;

together with the full and free right of ingress and egress

over and across said land and the waters overlying said

land, to and from Grantee's land unto Grantee, his suc-

cessors and assigns and to Grantee's tenants, employees,

agents, customers, guests, visitors or invitees, and for

any and all purposes connected with the full and com-

reafter situated

ssigns of [

S and a

f° recent

SULCESSO

s land

‘

on Grant

ent and right

=) >

Case

AND TO HOLD sa

TO HAVE

and

isions h

essors

SULLY

forever:

ereo!

OVIS

rnr

aid easement and

and

claiming,

33a

EXHIBIT “A”

A 8.27172 ACRE TRACT, MORE OR LESS. OUT OF

DIVISION 4, SECTION 13, OF THE HALL AND

JONES SURVEY, ABSTRACT NO. 121. GALVESTON

COUNTY, TEXAS, SAID TRACT BEING MORE

PARTICLLARLY DESCRIBED AS FOLLOWS. To-

Wit:

Commencing at the Southwest corner of Terramar

Beach, Section 3, according to the map or plat recorded

in Volume 1616, page 89 in the Office of the County

Clerk of Galveston County, Texas; THENCE from said

beginning point, along the West line of a 3.88204 acre

tract § 31° 22’ 35” E, a distance of 100.00 feet: S 31°

33’ 16” E, a distance of 77.03 feet, $ 41° 40’ 17” E.

a distance of 78.18 feet to a point for corner being the

Northeast corner of a 1.82849 acre Marina Tract:

THENCE along the Northerly line of said 1.82849 acre

tract S$ 57° 35’ W, a distance of 405.62 feet to a point

for curve: THENCE in a Westerly direction around a

curve to the right having a radius of 67.26 feet, an arc

length of 26.32 feet to a point for tangent: THENCE

S 80° 00’ W, a distance of 193.79 feet to a point for

corner being the Northwest corner of said 1.82849 acre

tract; THENCE S 10° 00’ E, along the West line of said

1.82849 acre tract, a distance of 11.86 feet to a point

for corner in the Easterly line of a 12.91081 acre tract:

THENCE along the Easterly line of said 12.91081 acre

tract, N 66° 02’ 17” W, a distance of 87.06 feet, N 60°

55’ 05” W, a distance of 214.58 feet, N 0° 22’ 41” E.

a distance of 256.20 feet, N 55° 03’ 58” W, a distance

of 119.17 feet to a point for corner being the Northeast

corner of said 12.91081 acre tract, THENCE N 58° 48’

04” E, a distance of 500.24 feet to a point for corner

in the Westerly line of Terramar Beach, Section 3;

THENCE along the West line of Terramar Beach, Section

3, S 32° 25’ E, a distance of 101.86 feet, § 32° 03’ 58”

E, a distance of 82.99 feet and S 31° 33’ 44” E, a dis-

tance of 100.01 feet to the place of beginning and con-

taining 8.27172 acres, more or less.

34a

APPENDIX H

THE SUPREME COURT OF TEXAS

P. O. Box 12248

Capitol Station

Austin. Texas 78711

Mr. Fred A Lange, Attorney

1938 Bank of the Southwest

Houston. Texas 77002

Mr. Robert M. Moore, Attorney

Moore Professional Building

7511 Broadway

Galveston. Texas 77551]

Dear Sirs:

CARRITHERS ET AL. v. TERRAMAR BEACH

COMMUNITY ASSN., No. C-1066 was this day

overruled.

Motion for rehearing in the case of C. ED

Motion to stay issuance of mandate is granted.

Very truly yours,

s/ GARSON R. JACKSON

Garson R. Jackson, Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.