# Reply Brief — Humble Oil & Refining Co. v. Sun Oil Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1952
- **Citation:** 342 U.S. 920

## Text

IN THE

Supreme Court of the Anited States
OCTOBER TERM, 1951

‘Humsie Om & REFINING COMPANY, ET AL,, Petitioners,
Vv.

Sun On. Company, Respondent

PETITIONERS’ REPLY TO RESPONDENT?’S BRIEF
IN OPPOSITION TO PETITION FOR
WRIT OF CERTIORARI

GorpDon Boone,

ALLEN V. Davis,

Jacos S. FLoyp,

RoBErT H. KELLEy,

R. E. SEAGLER,

Rex G. Baker,

K. C. MINTER,

CHARLES E. SHAVER,

NELSON JONES,

Counsel for Petitioners
ee aN a CCNA

ALPHA LAW BRIEF CO., HOUSTON

SUBJECT INDEX

PAGE
UNDER THE APPLICABLE SPANISH LAW, AS WELL

AS AT COMMON LAW, THE TIDE LIMITS THE SHORE 1
THE DECISION OF THE COURT OF APPEALS CANNOT

BE RECONCILED WITH THE APPLICABLE LOCAL
ses UCU

eee. sf elt; 6

LIST OF AUTHORITIES

;

~

IN THE

Supreme Court of the Gnited States
OCTOBER TERM, 1951

No. 481

HuMBLE Or & REFINING COMPANY, ET AL., Petitioners,
Vv.

SUN Om Company, Respondent

PETITIONERS’ REPLY TO RESPONDENT’S BRIEF
IN OPPOSITION TO PETITION FOR
WRIT OF CERTIORARI

Under the applicable Spanish Law, as well as at
Common Law, the TIDE limits the shore.

Recognizing that its sole claim must fail unless the land
in suit is “seashore” under Spanish law, respondent argues
that fide is not the criterion for determining the boundary
of the shore under Spanish law. Respondent says:

“* * * the Spaniards were not concerned with astro-
nomical tides. They were concerned, precisely as the
Romans were concerned, with nothing but sea water;
the extent to which the waves of the sea rolled in nor-
mal times.” (Brief for Respondent, p. 24.)

ae

2

Upon this contention hangs respondent’s entire case; this
is the basis upon which respondent seeks to uphold the de-
cision of the lower court. Yet this very contention was
expressly rejected by the Court of Appeals, which held that
tide, and nothing else, limits the seashore under Spanish
law as well as at Common law. Respondent’s contention is
wholly incompatible with the holding of the Court of Ap-
peals on the controlling question, as demonstrated by the
following quotation from the opinion:

“Under the civil law, from the Institutes of Justinian
until the present time, the seashore has been common
property, and the alluvion that was added thereto be-
longed to the owners whose lands were bounded by
the sea. This precept of the Roman law remains today
as the guiding principle in both civil and common-law
jurisdictions unless changed by code or statute * * *
The low tide* line is the seaward boundary of the shore
in both civil and common law countries * * * By the
civil law, the shore extends to the line of the highest
tide in winter. Galveston v. Menard, 23 Tex. %49:
Galveston City Surf Bathing Co. v. Heidenheimer, 63
Tex. 559; DeMerit v. Robison, 102 Tex. 358; Heard
v. Town of Refugio, 129 Tex. 349 * * *

“There would be no certainty as to the upland
boundary of the shore if we took into consideration
points to which sea water is driven by the wind * * *
The tide is another matter; there is nothing erratic
about it. The tide is the rising and falling of the water
of the sea that is produced by the attraction of the
sun and moon, uninfluenced by special winds, seasons
or other circumstances * * * The tide delimits the
shore, and it is no respecter of the conflict of laws
* * * Shore is sometimes said to be synonymous with
‘flats’; 19 Cyc. 1078; 29 Cyc. 355; but flats are not

*F-mphasis supplied throughout unless otherwise indicated.

3

shore unless the tide ebbs and flows over them * * *”
(R. 1935-1936; 190 F. 2d 194-195.)

Under this holding the flats in controversy could not be
“seashore” because the tide does not ebb and flow over them.
The fact that the tide does not ebb and flow over this land
is undisputed. The Court of Appeals said:

“It was admitted by plaintiffs below that the land in
controversy, at the time of suit, was above sea level
and above mean high tide, and that the waters of La-
guna Madre encroached upon this land only when blown
there by the wind.” (R. 1933; 190 F. 2d 194.)

The holding that side determines the boundary between
seashore and upland under Spanish law undoubtedly is cor-
rect. Any other holding would conflict with the definition
of “seashore” contained in Las Siete Partidas. In Texas the
accepted translation of the Partidas is by S$. P. Scott, pub-
lished for the Comparative Law Bureau of the American
Bar Association. That translation, which is cited by respond-
ent, contains the following definition of “seashore”:

“* * * All that land is designated the shore of the
sea which is covered with the water of the latter
at high tide during the whole year, whether in winter
or in summer.”

Respondent avoids the words “at high tide” by simply
deleting them whenever quoting from Las Siete Partidas.
Such deletion occurs on pages 2, 3, 4, 33 and 45 of respond-
ent’s brief; in no instance does respondent quote the defini-
tion as it appears in Scott’s translation. In STATE Vv. BALLI,
144 Tex. 195, 250, the Texas Supreme Court expressly
adopted the Scott translation (exactly as it appears in Mr.
Scott’s book) as a correct statement of the Spanish law.

perenne: —
;

4

All of the Texas decisions recognize tide as the controlling
factor in the Spanish law concept of seashore. (See GaL-
VESTON Vv. MENARD, 23 Tex. 349, 399; GALVESTON CITY
SuRF BATHING Co. v. HEIDENHEIMER, 63 Tex. 559, 562;
DeEMeErir v. Rosison, 102 Tex. 358, 361.) There is no
Texas decision which supports respondent’s contention.
There is no translation of the Partidas which supports
respondent’s contention. It is plain that the Spaniards dis-
agree with respondent. In 1815 King Ferdinand 7th pro-
mulgated an order giving registered seafaring men the free
right to sell fish on seashore and piers. This order described
the shore as “ * * * All that space which the water of the
sea bathes in its daily flux and reflux and twenty ordinary
varas more above the high tide mark.” * King Ferdinand’s
order continued as a part of the law of Mexico after Mexico
achieved its independence.” There can be no doubt that
seashore, as defined in Las Siete Partidas, means land covered
by the daily ebb and flow of the tide to the Spaniards, the
Mexicans, the Texas courts and to the Court of Appeals.

The decision of the Court of Appeals cannot
be reconciled with the applicable local de-
cisions.

Respondent does not attempt to distinguish STATE v.
Batu, 144 Tex. 195, and does not deny that the BaLtr de-
cision is squarely in conflict with the decision in the present

1],as Leyes Federales Vigentes sobre Tierras, Bosques, Aguas,
Ejidos, Colonizacion y el Gran Registro de la Propiedad por el
Lic. Niceto Villamar and S. Moreno Cora, page 372, Second Edition,
Mexico, 1900.

2Code of Colonization and Vacant Lands of the Republic of
Mexico; arranged by Francisco F. de la Maza, published agreeable
to resolution of the President of the Republic, Mexico, 1893, pages
488-489. Id. pp. 711-713. Id. pp. 1106-1111.

er ON ee

case. These two cases involve the same question of local prop-
erty law arising out of identical factual situations. Yet the
Court of Appeals reached a result opposite to the result
reached in the BALLI case. Respondent recovered in the BaLLI
case on the ground that fide marks the boundary between
a Mexican grant and Laguna Madre. Application of this
principle of local law to the admitted facts of the present
case necessarily would defeat respondent’s claim.

The Court of Appeals did not hold that the land in con-
troversy is “seashore”. Its decision is expressly based upon
the holding that petitioners failed to prove that the land in
suit accreted to petitioners’ grants. That holding is contrary
to the fundamental rule that a plaintiff must recover upon
the strength of his own title and not upon the weakness of
his adversary’s. Respondent claims that it proved a prima
facie title by introducing in evidence its leases from the State,
citing STATE v. DELESDENIER, 7 Tex. 76. That case is not
authority for respondent’s contention because it is applicable
only to a suit by the State. No Texas decision holds that a
lessee from the State has the benefit of any presumption.
On the contrary, a lessee from the State must, like any other
plaintiff, recover upon the strength of its own title. Further-
more, such a presumption would not aid respondent, since
the land in suit admittedly is above the reach of the tide.

Petitioners would be entitled to judgment as to certain
of the tracts in controversy even if the evidence showed
conclusively that no accretion has occurred. The line of
mean high tide and highest tide in winter is shown on De-
fendants’ Exhibit 20, attached to the petition. That line
runs along the east side of Tracts 273, 280 and 281. Peti-
tioners’ grants call for Laguna Madre as their eastern boun-
dary. The enumerated tracts must be included in Los Mira-
soles and Little Barreta in order to give effect to the call for

6

Laguna Madre. If these tracts are not included in these
grants, then the grants are not bounded by Laguna Madre
at all. It is a fundamental rule of local law, recognized since
the earliest Texas decisions, that a call in a grant for a body
of water as a boundary must be given controlling effect in
locating the grant. Respondent makes no effort to justify
the decision of the Court of Appeals which disregarded the
call for this natural object.

Conclusion

WHEREFORE, petitioners pray that this Court issue a writ
of certiorari, directed to the United States Court of Appeals
for the Fifth Circuit, and that the judgment of the Court
of Appeals and the judgment of the District Court be re-
versed by this Honorable Court.

HuMBLE Or & REFINING
COMPANY,
Mrs. Sarita K. East,
Mrs. ELENA S. KENEDYy,
Petitioners

By Gordon Boone,
ALLEN V. Davis,
Jacos S. FLoyp,
RoBerT H. KELLEY,
R. E. SEAGLER,

Rex G. BAKER,
K. C. MINTER,
CHARLES E. SHAVER,

NELSON JONES,
Counsel for Petitioners

—

BY | A

7

IN THE | ne
Supreme Court of the United States

OcTOBER TERM, 1951

No. 481

HUMBLE OIL & REFINING COMPANY, ET AL.,
Petitioners

V.

SUN OIL COMPANY,
Respondent

—

On Petition For A Writ of Certiorari to The United States
Court of Appeals For The Fifth Circuit

BRIEF FOR THE STATE OF TEXAS, AMICUS CURIAE,
IN OPPOSITION

PRICE DANIEL
Attorney General of Texas
JESSE P. LUTON, Jr.
Assistant Attorney General
BEN H. Rick, III
Of Counsel

INDEX
Page
Se ED uv danacdsessadacnwap nn ckekaeuemenal 1
IN 5k 4. 5c Nniecdss bb poe ea aa ke kee eee 1
a, Pe nS eee Te een eer re Cre re ee 2
IE op int an Ga AG eo ae ees aarp oles nena ee 3

I. The Court of Appeals correctly held that the con-
troverted area has not become a part of petitioners’
mainland grants by accretion or reliction........ 3

II. The opinion of the Court of Appeals does not con-
es ee ee ee 10

III. The Court of Appeals correctly held that this is
an equitable proceeding in which the parties were

not entitled to a jury trial as a matter of right... 13

IIOISUT ERIN. ool Chk Goa, Cree ng in ares ahi a lonaee ratehee Siaak eile 17

i lg a ir = es,

§
fe
7
s
§
re
Ud
pt
Pa
e

TABLE OF AUTHORITIES

CASES
Page
Allen v. Trust Company of Georgia, 326 U.S. 630........ 10
Anderson v. Ray, 37 S.D. 17, 156 N.W. 591............. 9
Baltimore & C. Line v. Redman, 295 U.S. 654........... 16
City of Victoria v. Schott, 29 S.W. 681................. 7
Comstock v. Group of Investors, 335 U.S. 211........... 10
Graver Mfg. Co. v. Linde Co., 336 U.S. 271............. 10
Hammond v. Shepard, 186 Ill. 235, 57 N.E. 867.......... 6
Hauber v. Gentry, 215 S.W. 2d 764...............0.... 4
Hillebrand v. Knapp, 65 S.D. 414, 274 N.W. 821........ 9
Hohl v. Iowa Cent. Ry., 162 Iowa 66, 143 N.W. 850...... 7
pees W. Ses, BRO TS. BBS oo occ hikck cece. 15
In re East River Drive, Borough of Manhattan, City of
Www Were, Dee LT, GOB. oi cvs veviccesvvcen, 4
Maufrais v. State, 142 Tex. 559, 180 S.W. 2d 144........ 7
McConihay v. Wright, 121 U.S. 201................... 16
Meeker v. Kautz, 213 Iowa 370, 239 N.W. 27............ 4
Mercurio v. Duncan, 131 Neb. 767, 269 N.W. 901........ 4
Perkins v. Adams, 132 Mo. 131, 33 S.W. 778............ 7
Peterson v. City of St. Joseph, 348 Mo. 954, 156 S. W. 2d
BORLA wew sare ern eee kEaRNCA Gr des oede ols eG bie neces 4
Sapp v. Frazier, 51 La. Ann. 1718, 26 So. 378........... 9
Schneider v. Lipscomb County Nat. Farm Loan Assn, 146
Ws I ON I aoc dis Kb cea eeneureuciins 3
Sheffield Furnace Co. v. Witherow, 149 U.S. 574........ 16
Short v. W. T. Carter & Bro., 133 Tex. 202, 126 S.W. 2d
PP SARS RMU cue lela wore tan wor tae & Leg ok 3
Simmons v. United States, 29 F. Rh ee ee 16

omy ¥. Ames, 100 US. O08... ... ooo occ ce 16

TABLE OF AUTHORITIES—Continued

Page
OR ®
State v. Balli, 144 Tex. 195, 190 S.W. 2d 71............ 10
State v. Longyear Holding Co., 224 Minn. 451, 29 N.W.
EE ASTER Bihan h Ue REG aoe ie Wied bade Fhe cs, 9
State v. Thompson, 134 Iowa 25, 111 N.W. 328.......... )
United States v. Louisiana, 339 U.S. 699............... 17
Wilmore Coal Co. v. Brown, 147 Fed. 931, aff. 153 Fed.
aG0, Cort. Gem. BOP USD. GOB... nc ccccccccccvccee 17
STATUTES
2 Gammel, Laws of Texas (Art. 7364, V.C.S.).......... 15
TEXTBOOKS
AGRE D te ied wad AEb ee Saba LS Ke ce bk 17
I os Cah Soue re Ga ee ee Vl rs 9
I ats rd akan ka dy ee ras nes 7
Se NY NS ie ons Wikw sia heel e See bande cles 7
No Es Spe titieeie Mate thie ait Rn sna tn Ae eet My eee 17
eT Rs Salon's Dac vix vat Goll x Ra wae Hew ea cn es 9
Se SG aia hens arate Canale oleae ee i ihe 7
Ey 5 io es Oks soe nioad ate sd alae c wereei ei claias 4
Coulson and Forbes, The Law Relating to Waters, (4th
EL wie uterus odka te aoa on ak icte kee at 8
ee Bs Mis, ud tn os BER bal oe ob @ kas lead 15
1 Farnham, Waters and Water Rights (1904).......... 7
Houck, Navigable Rivers (1868)...................... 7

1 Kinney, Irrigation and Water Rights (2d ed. re

1 White’s New Recopilacion of the Laws of Spain and the
kl RFE SES AP Tene ae risa oe Pe ae OS ir A 12

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3

IN THE

Supreme Court of the United States

OctoBER TERM, 1951
No. 481

HUMBLE OIL & REFINING COMPANY, ET AL.,
Petitioners
Vv.

SUN OIL COMPANY,
Respondent

On Petition For A Writ of Certiorari to The United States
Court of Appeals For The Fifth Circuit

BRIEF FOR THE STATE OF TEXAS, AMICUS CURIAE,
IN OPPOSITION

OPINIONS BELOW

The opinion of the Court of Appeals for the Fifth
Circuit is reported at 190 F. 2d 191. The opinion of
the Court of Appeals on petition for rehearing is re-
ported at 191 F. 2d 705. The opinion of the District
Court on the intervention of the State of Texas is
reported at 88 F. Supp. 658.

JURISDICTION

The jurisdictional requisites are adequately set forth
in the petition.

——

a

STATEMENT

This suit was instituted by respondent, Sun Oil Com-
pany, a New Jersey corporation, against petitioners,
Mrs. Sarita K. East and Mrs. Elena S. Kenedy, both
citizens of Texas, and Humble Oil & Refining Com-
pany, a Texas corporation, lessee of the Kenedy Ranch.
The purpose of the suit is to remove cloud from the
title to 26 described tracts leased by the State of Texas
to respondent in Laguna Madre, a lagoon between the
mainland and Padre Island, in Kenedy County, Texas,
and to enjoin petitioners from interfering with the
development of the area by respondent for oil and gas
purposes. The State of Texas was allowed by the trial
court to intervene under its claim of ownership of
these tracts and the minerals thereunder, subject to
the oil and gas leases held by Sun.

Petitioners claimed title to the area by accretion or
reliction to their mainland grants (Big Barreta, Los
Mirasoles, and Little Barreta), issued by Spain and
the Mexican State of Tamaulipas. Respondent and the
State of Texas contended that the area is a part of
the seashore under the controlling civil law and also
that none of the area has become a part of petitioners’
mainland grants as a result of accretion or reliction.
These allegations and contentions are fully set forth
in the opinion of the Court of Appeals (190 F, 2d at
193-194), the pertinent portions of which are quoted
on pages 2-3 of the petition for certiorari.

After filing extensive findings of fact and «onelu-
sions of law (R. 1829-1868), the trial court rendered
judgment for respondent and the State of T.xas. ad-
judging the State to be the owner of the area. subject
to the oil and gas leases held by respondent, removing

en ee ce

a

the clouds from the title of the State and respondent,
and enjoining petitioners from interfering in any way
with respondent and the State in the development of
the area for oil and gas (R. 1895-1910).

The Court of Appeals reversed the action of the trial
court in allowing the intervention of the State and
denied the petition to intervene; otherwise, the judg-
ment was modified so as not to be binding upon the
State, and as so modified the judgment was affirmed.

ARGUMENT
I.

The Court of Appeals correctly held that the con-
troverted area has not become a part of petitioners’
mainland grants by accretion or reliction.

The issue in this case is whether the portion of La-
guna Madre in controversy has become a part of peti-
tioners’ mainland grants as a result of accretion or
reliction. As stated by the Court of Appeals:

‘The appellants do not assert a grant from any
sovereign to this controverted area; but they claim
it by accretion to the shore of the mainland. The
crucial question for determination is whether land,
which admittedly was a part of the original bed
of Laguna Madre and outside of appe’ lants’ main-
land grants, has become a part of the mainland
under the doctrine of accretion.”’ (190 F. 2d at
199. )

Respondent established a prima facie case by intro-
ducing in evidence oil and gas leases from the State
covering the area in question. Short v. W. T. Carter
& Bro., 133 Tex. 202, 219, 126 S.W. 2d 993, 963 (1938) ;
Schneider v. Lipscomb ( ‘ounty Nat. Farm Loan Ass’n,

a

ae ae

146 Tex. 66, 75, 202 S.W. 2d 832, 837 (1947). The
burden then devolved upon petitioners to prove that
the location of the boundary line of their mainland
grants had been changed by accretion or reliction so
as to include this area. Peterson v. City of St. J oseph,
348 Mo. 954, 156 S.W. 2d 691 (1941); In re East River
Drive, Borough of Manhattan, City of New York, 289
N.Y.S. 433 (1936); Meeker v. Kautz, 213 Lowa 370,
239 N.W. 27 (1931); Mercurio v. Duncan, 131 Neb,
767, 269 N.W. 901 (1936) ; Hauber v. Gentry, 215 S.W.
2d 754 (Mo. Sup. 1948); 65 C.J.S. 183, Navigable
Waters, Sec. 85.

Petitioners rely primarily upon the fact that this
area is above the reach of the daily ebb and flow of
the tide. Petitioners’ principal witness was Dr. Fisk,
an employee of Humble Oil & Refining Company, who
said that the area ‘gradually filled wp, layer on laver,
until it reached sea level, and then built up to its pres-
ent sea level position, at which time the flats became
connected with the mainland, and that aceumulation
has been continuing layer on layer, even now, where it
is, in places, several feet above sea level.”’ (R. 1289.)
No evidence was presented by petitioners of any grad-
ual and imperceptible addition of sediment to their
shore line so as to extend the shore into Laguna Madre
or that the water began receding from their shore line.

The Court of Appeals summarized the evidence and
findings as to the physical features of this area and
the action of the water in covering the area as follows:

‘“‘“From maps, photographs, aerial mosaics, and
the oral testimony of witnesses, the court below
found that what commonly has been regarded as
Laguna Madre, prior to this controversy, is clearly

a

defined and easily visible. Around the grass line
on the island and the mainland, there is a short
sandy beach, which constitutes the shore of La-
guna Madre, Spanish for mother lake or lagoon.
The area in controversy is above sea level, sloping
according to the contour from one one-hundredth
of a foot above sea-level to three or four feet. Some
of the islands in Laguna Madre at their high
points are as much as 25 feet or more above sea
level. It is impossible to determine what has ae-
creted to the islands and what to the mainland.
Deer and rattlesnakes have been seen on some of
the islands in the Lagoon; on some of them are
grass, cactus, sunflowers, and heavy brush, inelud-
ing large mesquite trees, especially on Toro Island.

“Waters of the Laguna Madre stand through-
out the year from Corpus Christi Bay on the
north to a point approximately even with the south
end of Lopena Island; and from the Brazos-San-
tiago Pass near Brownsville, on the south, to and
including Redfish Bay, at a point less than a mile
from Block 369, one of the tracts in controversy.
It is from these bays and passes that sea water
rolls over the lands in suit, throughout the vear,
driven by the prevailing winds, which continue
from 9 to 10 months of the year. Within 24 hours
after these strong winds start blowing, the waters
of the sea roll in rapidly, inundating great por-
tions of the entire area, including the inlets be-
tween the various islands and the shore of the
mainland. The sea water rolls over the small sandy
beaches to the grass lines leaving foam, driftwood,
and the like. The water is extremely salty; it cov-
ers all of the land in controversy for appreciable
portions of the year. At such times this water con-
tains literally millions of Seafish; seagulls and
pelicans are seen feeding on the fish. The water
varies from three to four inches to many feet in
depth; seaplanes can and do land upon it, and

¢
3
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boats navigate it safely. Often the waters of the
south and north basins are joined, and the various
islands are isolated by water. When the water re-
cedes, salt is deposited, fish die, and all of the area,
except that on the beaches, is mud, sand, and
leathery algae. During the dry season a large part
of the area is dry. There is no grass or plant life
of any kind in the entire area, except upon the
islands. Some testimony dealt with the effect of
storms and rainfall, but the court below thought
that this had no substantial effect upon the move-
ment of sea water over the lands in controversy,
The finding is that sea water rolls over the entire
area throughout the year, irrespective of storms
or rainfall; that the movement of this sea water
over the entire area is formidable, the pictures
resembling general coastal water with considerable
waves; and that there is a regular movement of
sea water repeated many times throughout the
year over all or part of the lands in controversy,
but that this movement is eaused by the prevailing
winds and not by the ebb and flow of the tide.”
(190 F. 2d at 196-197.)

It is clear that under the above evidence, which is
undisputed, the Court of Appeals correctly held that
petitioners had not proved that this area has become a
part of their mainland grants by accretion or reliction,

The controlling principle is stated in Hammond v.
Shepard, 186 Il. 235, 243, 57 N.E. 867, 868 (1900), as
follows:

‘All of the authorities agree that, in order that
a shore owner take land by way of accretion or
reliction, it must appear that the addition was to
his shore either by the deposit of earth or by the
receding of the water from his land, and that such
addition must be by slow and imperceptible proe-
esses. ”’

ae a a ar aia a

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on
In 56 Am. Jur. 897, Waters, Sec. 483, it is said:

‘In order to effect a change of boundary, for-
mations resulting from accretion or reliction must
not only be made to the contiguous land, but must
operate to produce an expansion of the shore line
outward from the tract to which they adhere.”’

For similar statements of this principle, see Perkins
v. Adams, 132 Mo. 131, 33 S.W. 778 (1896) ; 1 Kinney,
Irrigation and Water Rights (2d ed. 1912) 928: 1
Farnham, Waters and Water Rights (1904) 320:
Houck, Navigable Rivers (1868) 147-148: 65 C.J.S.
179, Navigable Waters, See. 82.

It is thus established that ‘‘accretions belong to the
land from which they begin and, in order to entitle
the riparian owner to the alluvion, the accretion must
begin from his land and not from some other point so
as to finally reach his land. Hence where his ownership
is only to the bank or shore, the accretion must begin
at that point.’’ 65 C.J.S. 179, Navigable Waters, See.
82; Hohl v. Lowa Cent. Iy., 162 Lowa 66, 143 N.W. 850
(1913) ; 56 Am. Jur. 899, Waters, Sec. 485.

Any alluvion deposited on the bed of Laguna Madre
in the manner described by petitioners’ principal wit-
ness, Dr. Fisk, is, under the above rule, an aceretion
to the bed and, as held by the Court of Appeals, be-
longs to the owner of that bed, the State of Texas. This
was recognized in City of Victoria v. Schott, 29 S.W.
681, 682 (Tex. Civ. App. 1895), where the court said:
“The islet, when formed, was an accretion to the soil
in the bed of the stream, and the owner of such bed
became the owner of the accretion.” See Maufrais v.
State, 142 Tex. 559, 571, 180 S.W. 2d 144, 150 (1944).

—8—

In St. Louis v. Rutz, 138 U.S. 226, 247 (1891), this
Court said:

“*. . . It is well settled that the owner in fee of
the bed of a river, or other submerged land, is the
owner of any bar, island or dry land which sub-
sequently may be formed thereon.”’

All of the evidence shows that the boundary of La-
guna Madre is still clearly visible and well known,
being demarked in this area by the shore of petitioners’
mainland grants, which, with well-defined banks, still
rises above the bed of Laguna Madre (R. 1838-1840,
1843, 177, 249, 1242; D. Ex. 23-28). This is shown also
by the ‘‘Advance Print” of the United States Coast
& Geodetic Survey map of the area submitted by peti-
tioners, of which they seek to have this Court take
judicial notice. The following statement in Coulson and
Forbes, The Law Relating to Waters (4th ed. 1924)
37, is therefore particularly applicable here:

‘*... The doctrine of accretion will never apply
when the old line of demarcation between the land

and water has always been in existence and still
remains patent for all to see.’’

The above ‘‘Advance Print’? submitted by petition-
ers, which, incidentally, states that it is ‘subject to
correction after verification and review,” in fact sup-
ports the evidence presented by respondent and the
findings of the trial court as to the action of the water
in this area. The following ‘‘Note”’ is found on this
print:

“Water stages in this area vary widely with
meteorological conditions. The high-water line has

been omitted where it is indefinite and is not
marked by visible evidence on the ground. The

RN EE RS CALs

—

broken line indicates the approximate inshore lim-
its of areas subject to inundation. The dotted line
represents the approximate low-water line.’’

The print shows that the entire area in controversy is
subject to inundation by the high water and that the
bed is covered by ‘‘sand and mud.”

‘*Where water periodically rises over land and then
recedes, there is no reliction.”” Anderson v. Ray, 37
8.D. 17, 22, 156 N.W. 591, 593 (1916) ; 56 Am. Jur.
892, Water, Sec. 476. There must be a ** permanent
uncovering of the land or laying bare of the bottom
by permanent retirement of the waters,” 69 C.J.S. 173,
Navigable Waters, Sec. 81; State v. Longycar H olding
Co., 224 Minn. 451, 29 N.W. 2d 657 (1947) ; Willebrand
v. Knapp, 65 8.D. 414, 274 NW. 89] (1937); Sapp v.
Frazier, 51 La. Ann. 1718, 26 So. 378 (1899); State v.
Thompson, 134 Lowa 25, 111 N.W. 328 (1907). There
being no dispute that the prevailing winds cause the
sea water to roll over the area in question many times
throughout the year, the Court of Appeals correctly
held that there has been no reliction.

The Court of Appeals concurred in the findings of
the trial court that there has been no accretion or relie-
tion to petitioners’ mainland grants. (190 F. 2d at
199.) In the opinion denying the petition for rehear-
ing, the Court said:

‘After an extended hearing of much oral and
documentary evidence, the trial court found that
the sea has not abandoned these lands; that what-
ever building up has taken place has been by de-
positions to the bed of the Sea, by accretions to the
islands (mainly if not entirely to Toro) by relic-
tions from Padre Island, and not by accretions to

the shore of the mainland, which is still plainly
discernible. The lower court specifically found
that: ‘The line of demarcation between the La-
guna and the Mainland is still patent for all to
see. The area in controversy ... is not fast land.’
It also found that there has not been any substan-
tial change or building up of the area since the
original surveys, particularly since the survey by
Lieutenant Meade in 1846. In the last analysis,
our decision must rest upon these findings, as in
our judgment they are not clearly erroneous. . . .”
(191 F. 2d at 716.)

It is well settled that these concurrent findings of
fact by the two courts below ‘will be accepted here
without re-examination of the evidence.” Allen v. Trust
Company of Georgia, 326 U.S. 630 (1946): Graver
Mfg. Co. v. Linde Co., 336 U.S. 271, 275 (1949) ; Com-
stock v. Group of Investors, 335 U.S. 211, 213-214
(1948).

Il.

The opinion of the Court of Appeals does not con-
flict with the Balli case.

Petitioners assert that the opinion of the Court of
Appeals conflicts with the decision in State v. Bulli.
144 Tex. 195, 190 S.W. 2d 71 (1944), cert. den. 328
U.S. 852, saying that the Texas Supreme Court in that
case “held that the Mexican grant conveying Padre
Island to respondent’s predecessors extended to the
line of mean high tide because Laguna Madre was
called for as the west boundary of the island.” ( Peti-
tion, p. 4.) That the alleged conflict does not exist is
shown clearly by an examination of the facts and hold-
ing in the Balli ease.

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State v. Balli was a suit in trespass to try title
brought by the State of Texas. The grant involved in
that case was a Mexican grant of an island, confirmed
by the Legislature as an island. The State in its peti-
tion described the island by field notes prepared by
J. S. Boyles, which, as shown in the opinion of the
Texas Court of Civil Appeals, were “based upon what
Boyles considered the line of mean high tide.” (173
S.W. 2d 522, 543.) No findings of fact were made hy
the trial court, which rendered judgment against the
State. On appeal, the State for the first time sought to
attack Boyles’ location of the boundary of the erant
along the line of mean high tide. The following extract
from the opinion of the Supreme Court shows the basis
of the Court’s holding on that point:

“There remains the question of the location of
the boundary of the grant. The survey was based
upon what the survevor considered the line of
mean high tide. The judgment of the lower courts
was to the effect that the State had no interest in
and to the lands enclosed by the survey. No survey
was made of a line purporting to be the line of
high winter tide. It is the contention of the State
that the grant is limited by this line under the law
in force in Tamaulipas at the time of the grant
and that the State should have judgment for the
land lying between the line of winter high tide
and mean tide. The respondents contended in the
Court of Civil Appeals, and make the same con-
tention here, that the evidence is sufficient to sup-
port a finding that there is no substantial differ-
ence in fact between the line of high winter tide
and the line actually surveyed by the surveyor
Boyles. The Honorable Court of Civil Appeals
reviewed the evidence and sustained the conten-

= ee

tions of respondents. We are in accord with that
view.”’ (144 Tex. at 252, 190 S.W. 2d at 101.)

It is apparent from the above extract that the Texas
Supreme Court in the Balli case did not, either ex-
pressly or otherwise, deny the proposition stated ear-
lier in its opinion that the controlling law was “the
civil law in effect at the time of the grant as it existed
in the State of Tamaulipas,’? which the Court. said
Was ‘‘the law as incorporated in Las Siete Partidas.”
(144 Tex. at 248, 190 S.W. 2d at 99.) The Court stated
that under that law

‘*. . . The seashore was defined to be ‘all that
ground is designated the shore of the sea which js
covered with water of the latter during the whole
year, whether in winter or summer.’ ’? (144 Tex.
at 201, 190 S.W. 2d at 100.)

The Court thus adopted White’s translation of. the
Partidas, which is in accord with the official Gregorio
Lopez edition (1555) and all other English transla-
tions except one.'

The Court of Appeals also reeognized the controlling
effect of the Spanish law in this ease, saying:

“Under the Spanish law, the seashore extends
to the line of the highest tide in winter. Mavor,
ete., of City of Galveston v. Menard, 23 Tex. 349,
399. In inland seas, at some places, the tides are
nearly insensible. Precisely speaking, where there
is no tide there is no shore; but, beeause a portion
of the sea has no shore, it does not follow that it

‘1 White’s New Recopilacion of the Laws of Spain and the
Indies (1839) 70 contains the following translation: “By
shore of the sea we understand whatever part is covered with
water, whether in winter or summer.”

has no bed. The area in controversy was formerly
the bed of the sea. The burden on the appellants
was two-fold: first, to prove that the sea had aban-
doned this area; second, to prove that appellants
had acquired it by accretion or reliction. Accord-
ing to the findings below, the appellants did not
meet either burden.”’ (191 F. 2d at 716.)

It is clear that there is no conflict between the deci-
sion of the Texas Supreme Court in the Balli case,
which recognized that Padre Island ‘is bounded by
..- Laguna Madre on the west.’ and the holding of the
Court of Appeals in this case that petitioners’ main-
land grants are bounded by Laguna Madre on the east
and do not include the area in question. This area has
always been and is now a portion of the bed of Laguna
Madre which is held in trust by the State of Texas
for the benefit of all its people.

Il.

The Court of Appeals correctly held that this is an
equitable proceeding in which the parties were not
entitled to a jury trial as a matter of right.

A jury was appointed in this case In an advisory
capacity (R. 1882-1884), and evidence was presented
for nearly three weeks before the court and jury. How-
ever, after counsel for petitioners and all other counsel
agreed that there were no issues of fact to go to the
jury, the jurv was discharged (R. 1368-1395).

As shown in the opinion of the Court of Appeals on
rehearing, petitioners did not there complain ‘of the
discharge of the Jury in itself, but of the court having
made findings of fact after having decided the case on

‘144 Tex. at 200, 190 S.W. 2d at 73.

a" 7
the undisputed facts.”’ (191 F. 2d at 714.) Petitioners
urged the Court of Appeals ‘‘to decide the case on the
merits if possible,’’ stating that ‘‘the trial was lengthy,
arduous, and expensive; that the case was fully devel-
oped by both sides; and that they should consider it
most regrettable if the entire case should be sent back
for another trial.’’ (191 F. 2d at 714.) Petitioners do
not ask this Court to send the case back for a retrial
before a jury but contend that the findings of fact by
the trial court should be disregarded.

In denying the petition for rehearing, the Court of
Appeals discussed at length the nature of this suit and
petitioners’ right to a jury trial, concluding that this
was an action to remove cloud or to quiet title “in-
herent in equity, and that the parties were not entitled
toa jury trial as a matter of right.’”’ (191 F. 2d at 708. )

In seeking to show this is not an action in equity,
petitioners assert that respondent was not in posses-
sion of the area and that petitioners were in possession
of the area by reason of their possession of the main-
land.

The allegations as to possession of the controverted
area were discussed by the Court of Appeals as follows:

‘The plaintiff alleged in its complaint that, at
the time of suit, it was in the actual possession of
all of said land. The defendants denied that plain-
tiff was in possession of ‘each of said tracts,’ but
admitted that plaintiff had a camp located on said
land and had done some surveying thereon. Later,
the answer denied that the plaintiff was actually
in possession of any of said land except the small
area surrounding said camp. The defendants did
not allege that they were in possession of any of

—i.

the controverted area, but only that it was accreted
land, above mean high tide, on which they had
mineral leases. Neither side alleged that the de-

fendants were in possession of the land. . . .” (191
F. 2d at 708-709.)

The record shows that respondent “had such posses-
sion as the character of its leasehold interest entitled
it to exercise.’” (191 F. 2d at 712.) Even if there were
some question about this, however, there can be no
question about the fact that petitioners were not in
fact in possession of this area. Therefore, respondent
could not have brought an action in ejectment at com-
mon law. Holland v. Challen, 110 U.S. 15, 25 (1884).
Since the right to jury trial exists ‘only if the relief
sought were appropriate to ejectment,’* petitioners
would not have been entitled to a jury even if the
statutory trespass to try title action had been brought.

The Texas trespass to try title statute provides that

‘All fictitious proceedings in the action of eject-
ment are abolished. The method of trying titles to
lands, tenements or other real property shall be by
action of trespass to try title.’

Insofar as this statute authorizes a suit at law by
one in possession, it is a remedy ‘‘subsequently pro-
vided by statute and which did not previously exist’’
at common law, and thus is a case in which no consti-
tutional right to jury trial exists in the federal courts.

‘R. 208-211, 214-272, 273-312 ; P. Exs. 12-50, 92-570, 591-
611.

*3 Cyc. Fed. Proc. 490, Sec. 791.
‘Laws of the Republic of Texas, 3rd Cong., 1st Sess. (1840),

Pp. 136; 2 Gammel, Laws of Texas 310; codified as Article
7364, Vernon’s Texas Civil Statutes.

a,

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Simmons v. United States, 29 F. Supp. 285, 286 (W.
D. Ky. 1929). The right of trial by jury preserved
under the Seventh Amendment ‘‘is the right which
existed under the English common law when the
Amendment was adopted.’’ Baltimore & C. Line v.
Redman, 295 U.S. 654, 657 (1935).

That the equity jurisdiction of the federal courts is
not ousted by state legislation providing a remedy by
an action at law has long been established. McConihay
v. Wright, 121 U.S. 201 (1887) ; Sheffield Furnace Co.
uv. Witherow, 149 U.S. 574 (1893). As stated in Smyth
uv. Ames, 169 U.S. 466, 516 (1898) :

‘« |. One who is entitled to sue in the Federal
Cireuit Court may invoke its jurisdiction in equity
whenever the established principles and rules of
equity permit such a suit in that court; and he
cannot be deprived of that right by reason of his
being allowed to sue at law in a state court on the
same cause of action. It is true that an enlarge-
ment of equitable rights arising from the statutes
of a State may be administered by the Circuit
Courts of the United States. Case of Broderick’s
Will, 21 Wall. 508, 520; Holland v. Challen, 110
U.S. 15, 24; Dick v. Foraker, 155 U.S. 404, 415;
Bardon v. Land & River Imp. Co., 157 U.S. 327,
330; Rich v. Braxton, 158 U.S. 375, 405. But if
the case in its essence be one cognizable in equity,
the plaintiff—the required value being in dispute
—may invoke the equity powers of the proper Cir-
euit Court of the United States whenever juris-
diction attaches by reason of diverse citizenship
or upon any other ground of Federal jurisdiction.
Payne v. Hook, T Wall. 425, 480; MeConthay v.
Wright, 121 U.S. 201, 205.”

Respondent prayed for a removal of the clouds cast

—_

pas ee

upon its title by petitioners and for an injunction re-
straining petitioners from interfering with respond-
ent’s enjoyment of its rights to the property (R. 76-
77). Suits to remove cloud or to quiet title have always
been the subject of equity jurisdiction, and ‘‘may be
resorted to under proper circumstances even where the
legal title is involved, and although it may not have
been previously established at law.’’ Wilmore Coal Co.
v. Brown, 147 Fed. 931, 946 (W. D. Pa. 1906), aff. 153
Fed. 143, cert. den. 209 U.S. 546; 51 C.J. 148, Quieting
Title, See. 22.

The latest pronouncement by this Court of the rule
that there is no right to jury trial in ‘‘an equity action
for an injunection’’ is found in United States v. Lou-
isiana, 339 U.S. 699, 706 (1950). For a collection of
the cases on this question, see the annotation in 117
A.L.R. 9, 12 (1938), where it is said that

‘« |. the mere fact that in deciding as to whether
equitable relief shall be granted a court must dis-
pose of issues of legal title or right is not general-
ly regarded as rendering the suit one at law where-
in a jury trial may be had as of right, the char-
acter of the appropriate relief and the inadequacy,
or nonexistence, of legal remedy being sufficient
as a foundation of equity jurisdiction.”

Therefore, petitioners’ contention that they were

wrongfully deprived of a trial by jury is wholly with-
out merit.

CONCLUSION

For the foregoing reasons it is respectfully sub-

—

mitted that the petition for a writ of certiorari should
be denied.
Respectfully submitted,

PricE DANIEL
Attorney General of Texas

JEssE P. Luton, JR.
Assistant Attorney General

Ben H. Ricg, III
Of Counsel

January, 1952

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_0976%3A6. Public record. Not legal advice.