BOUNDARY DISPUTES AND VACANCIES

JOHN C.D. DROLLA, JR. Law Offices of John C.D. Drolla, Jr. Town Lake Building 512 East Riverside Drive, Suite 200 Austin, Texas 78704 512.445.6838 512.445.0077 Fax [email protected]

* Copyright 1997 by John C.D. Drolla, Jr. All Rights Reserved

23rd ADVANCED REAL ESTATE COURSE STATE BAR OF TEXAS June 20-22, 2001 Dallas, Texas July 11-13, 2001 Houston, Texas August 22-24, 2001 Austin, Texas CHAPTER 2 CURRICULUM VITAE

JOHN C. D. DROLLA, JR. As of 11 June 2001 LAW OFFICES OF JOHN C. D. DROLLA, JR. The Town Lake Building,512 East Riverside Drive, Suite 200 Austin, Texas 78704 512.445.6838; 512.445.0077 FAX;e-mail: [email protected] PRACTICE AREA:General Civil Trial, Appellate and Federal Practice, Commercial and Residential Real Estate Law, Business Law, Bankruptcy, Corporation and Banking Law, Family Law and limited Criminal Law [Only Certified By The Texas Board Of Legal Specialization In Commercial and Residential Real Estate. Not Certified In Other Areas] EDUCATION & LEGAL BACKGROUND B.A. and J.D. University of Texas at Austin Admission to Practice State of Texas, 1972;Admissions to Practice Before:U.S. Supreme Court 1977;U.S. Court of Appeals, Fifth Circuit 1976 & 1982 (upon reorganization);U.S. District Court, Western District of Texas 1974; U.S. Court of Appeals For The Armed Forces 1988 Board Certified -- Commercial and Residential Real Estate Law, Texas Board of Legal Specialization, since 1983 and 1984 respectively. PROFESSIONAL ASSOCIATIONS State Bar of Texas 1972-present Member State Bar Of Texas Real Estate, Probate and Trust Section, Litigation Section, Corporate, Banking and Business Law Sections, Military Law Section (Council Member 1986 to 1990) and Family Law Section Travis County Bar Association (also member Real Estate Litigation Sections); Co-Chairman Continuing Legal Education Planning Committee [Member 1991 -2001] and Moderator of the Civil Litigation Institute conducted April 1991; Co-Chairman Public Image Committee 1991-1992; Volunteer Mediator, Travis County District Courts Settlement Week, 1992-1998; Member Gender Equity Committee 1996-97, 1997-98; Williamson County Bar Association, Volunteer Mediator, Williamson County District Courts Settlement Week, 1999, 2000 Federal Bar Association, Austin Chapter (Treasurer 1994-1995; Program Committee Chair, 1994-1995; Delegate National Convention 1995, 1997; Secretary 1995-1996; Vice-President 1996-1997; President-Elect 1997 - 1998; President 1998- 1999; Chapter Delegate to National Council 1999- 2000, National Presidential Appointee as Delegate to National Council 2000-2001) College of the State Bar of Texas 1985-1994; Fellow-College of State Bar 1995-present The Pro Bono College of the State Bar of Texas 1992 through 1998 Texas Association of Bank Counsel (former member) Texas Savings and Loan League Counsel (former member) Advanced Real Estate Law Course, State Bar of Texas Planning Committee, 1987, 1990, 1991, 1993, 1995, 1996, 1998, 1999 (Chairman & Course Director 1999) and 2001 Real Estate Litigation Institute, State Bar of Texas Planning Committee, 1981, 1985, 1987, and 1996 (Chairman 1987) Dealing with Insolvent Organizations Institute, State Bar of Texas Planning Committee, 1989 Strategic Use of Liens Institute, State Bar of Texas Planning Committee 1990 United States Army Reserve, Colonel, previously assigned to Department of Defense, Office of the Inspector General, Inspections from 1988-1993 Graduate, City of Austin Citizens Police Academy, 1993 Graduate, Travis County Sheriff's Department Citizens Sheriff Academy, Class No. II, 1994. AWARDS\HONORS Membership, Phi Delta Phi, University of Texas School of Law, 1970 Chairman, Trial Advocacy Association - 1971 Member, Moot Court Board - 1970 - 1971 Member, Board of Advocates and Order of Barristers - 1971 Best Brief Award (Criminal Case), University of Texas School of Law, Spring 1971 Best Brief Award (Criminal Case), State Bar of Texas, Summer 1971 Champion, State Bar of Texas Moot Court Competition Summer 1971 University of Texas School of Law CONSUL Award for Leadership by Faculty and Students - 1972 National Order of Barristers - 1972 Who’s Who In American Law - 1998 - 1999; 1999 - 2000 Fellow-College of the State Bar of Texas 1995 Fellow-Texas Bar Foundation 2000 State Bar of Texas Lawyer Referral and Information Committee-2001-2004 LECTURER Finkelstein Texas Bar Review Course Federal Courts and Procedure and Texas Workmen's Compensation Law, 1974-1976 Real Estate Litigation Course, State Bar of Texas, “Earnest Money Contract Litigation,” 1981; “Suits Affecting Title to Real Property”, 1985; and Ethics: “The Texas Lawyer's Creed” 1996 Professional Liability: A Performance Enhancement Course, State Bar of Texas, 1986 Advanced Real Estate Law Institute, State Bar of Texas, 1987, 1990, 1991, 1993, 1996, 1997, 1998 and 1999 Military Law Section Seminar, “Foreclosures and Loan Workouts,” State Bar of Texas, 1989 Dealing with Insolvent Organizations Institute, “Highlights of Federal Bankruptcy Law,” State Bar of Texas, 1989 Strategic Use of Liens Institute, “Do You Really Want To Foreclose (Environmental Concepts),” State Bar of Texas, 1990 Strategic Use of Liens Institute, “The New Texas Disciplinary Rules of Professional Conduct From The Perspective Of A Civil Practitioner,” State Bar of Texas, 1990 Selected Topics in Litigation, State Bar of Texas, 1992 Boundary Law And Adjoining Landowner Disputes, “Boundary Line Disputes and Agreements and The Basics of Easements,” Professional Education Systems, Inc., 1997 Ethics, Ethics, Ethics Seminar, Travis County Bar Association, “Ethics: The Texas lawyer’s Creed(Revisited)” 2001 ARTICLES PUBLISHED “Trial Techniques in Texas,” 34 Texas Bar Journal 895, 1971 “Use of Prior Testimony of an Unavailable Witness,” 35 Texas Bar Journal 929, 1972 “Suits Affecting Titles to Real Property in Real Estate Litigation,” State Bar Real Estate Litigation Institute Series, 1985 “Real Estate Agent Liability,” State Bar of Texas Professional Liability (A Performance Enhancement Course), 1986 “Broker Liability Issues” State Bar of Texas Advanced Real Estate Law Course, 1987 Chapter 14, “Real Estate Agents and Brokers,” Texas Torts and Remedies Treatise, Matthew Bender & Company, Inc., 1988 “Highlights of the Federal Bankruptcy Law,” (co-author), State Bar of Texas Dealing With Insolvent Organizations Institute Series, 1989 “Revision of Asbestos Regulations,” State Bar of Texas Advanced Real Estate Law Course, 1990 “Boundary Disputes--So You Think That's Your Property Line?”, (co-author), State Bar of Texas Advance Real Estate Law Course, 1991 “Title Disputes and Basic Causes of Action,” State Bar of Texas Advanced Real Estate Law Course, 1993 “Earnest Money Contract Disputes,” State Bar of Texas Advanced Real Estate Law Course, 1996 “Ethics: The Texas Lawyer's Creed,” State Bar of Texas Real Estate Litigation Institute, 1996 “Boundary Line Disputes and Agreements,” State Bar of Texas Advanced Real Estate Law Course, 1997 "Boundary Line Disputes and Agreements and The Basics of Easements," Professional Education Systems, Inc., 1997 “Adverse Possession and the Trespass To Try Title Lawsuit,” State Bar of Texas Advanced Real Estate Law Course, 1998 “Ethics: The Texas Lawyer's Creed (Revisited),” Travis County Bar Association, Ethics,Ethics,Ethics Seminar 2001 Boundary Disputes and Vacancies Chapter 2

Table of Contents I. SCOPE OF ARTICLE ...... 1 II. BACKGROUND ...... 1 III. EXTENT OF OWNERSHIP ...... 1 A. Property Rights ...... 1 B. Uses of Land ...... 2 IV. LOCATING THE BOUNDARY ...... 2 A. Intent ...... 2 B. Construction ...... 3 C. Priority and Dignity of Calls ...... 3 1. A Little History ...... 3 2. Natural Objects ...... 4 3. Artificial Objects ...... 4 4. Courses ...... 4 5. Distances ...... 4 6. Quantities ...... 4 V. TYPES OF BOUNDARIES ...... 5 A. Private Land ...... 5 B. Roads ...... 5 C. Water Courses ...... 5 1. Natural Water Courses ...... 5 2. Navigable Water Courses ...... 6 3. Non-navigable Water Courses ...... 6 4. Tidal Waters ...... 6 5. Lakes ...... 7 6. Accretion, Avulsion, or Reliction ...... 7 VI. BOUNDARY LINE AGREEMENTS ...... 7 A. Oral Agreements ...... 7 B. Acquiescence ...... 8 C. Written Agreements ...... 9 VII. LITIGATION INVOLVING BOUNDARIES ...... 9 A. Jurisdiction ...... 10 B. Venue ...... 10 C. Parties ...... 10 D. Plaintiff's Petition ...... 10 E. Multiple types of allegations ...... 11 F. Property Description ...... 11 G. Discovery ...... 11 1. Abstract of Title ...... 12 2. Appointment of Surveyor ...... 13 H. Documentary Evidence ...... 13 I. Claim for Improvements ...... 13 1. Texas Property Code, Sec. 22.021 ...... 14 2. Texas Property Code, Sec. 22.041 ...... 15 J. Default Judgment ...... 15 K. Defendant's Answer ...... 15 1. Plea of "Not Guilty" or General Denial ...... 15 2. Issues Raised ...... 15 3. Admission of Possession ...... 16 Boundary Disputes and Vacancies Chapter 2

L. Trial ...... 16 1. Applicable Rules ...... 16 a. Presumptions and Burden of Proof ...... 16 b. Questions of Law and Fact ...... 17 c. Instructions ...... 17 M. Judgment ...... 17 VIII. VACANCIES ...... 18 A. Creation ...... 18 B. The Vacancy Act ...... 18 C. Procedures under the Act ...... 21 D. Res Judicata and the Vacancy Act ...... 23 Appendix A ...... 31 Boundary Disputes and Vacancies Chapter 2

BOUNDARY LINE DISPUTES AND AGREEMENTS SCOPE OF ARTICLE user. The marking of corners was not always uniform and sometimes difficult to do. The result Boundary disputes seem to surface around – hard to find lines, boundaries which conflict and, the State of Texas with regularity as we grow in at times, boundary lines which created what is population and development moves into the outer commonly known as the strips and gores doctrine, urban and rural areas. In response, this year’s a doctrine developed to help prevent vacancies. Advanced Real Estate Course Planning Markers, such as trees, which would disappear at Committee decided that it should be a topic the whim of a cowboy or a hunter present presented. Thus, my guidance was to update problems. Case law affecting boundary disputes previous presentations on this topic and add a was well established in the late 1800's, early touch of vacancies discussion. Hence this paper 1900's. While we have had little new case law is an updated rewrite of previous works to since 1997, the Texas Supreme Court has decided familiarize attorneys with some of the basic a case of first impression dealing with “natural” principles governing boundary line disputes, to versus “architectural” created accretion. See include a brief discussion on vacancies, and E.H. Brainard, II v State of Texas, 12 S.W. 3d 6 agreements incident to resolution. The paper also (Tex. 1999). Boundary disputes still, on occasion, touches on some of the considerations necessary occur between counties. The suits are governed to litigation of boundary disputes. Primarily, it is by Texas Local Government Code §72.009 an update and revision of previous article(s) which (Vernon 1999) In Re Tarrant County, 16 S.W. 3d dealt in part with this topic among others. 914 (Tex. App. – Fort Worth 2000, orig. Variances of this article have previously been proceedings). Most of the cases, to include the presented at the 19th Advanced Real Estate Law Brainard case, of late confirm and strengthen the Course, the summer of 1997, and a seminar on old well-established rules of resolution of boundary Texas Boundaries Law and Adjoining disputes and the interpretation and construction of Landowners Dispute in the fall of 1997. This surveys found in the cases decided in the last two article will not discuss the trial of a trespass to try centuries. At least one court has referred to older title case, except as to aspects which share surveying efforts as “inept at best.” Kilgore v. commonality with boundary line dispute cases. Black Stone Oil Company, 15 S.W. 3d 666 (Tex. Practitioners involved in a trespass to try suit or App. – Beaumont 2000 pet. denied [2 pet.]) other real estate cause(s) of action such as a suit to quiet title or adverse possession are referred to III. EXTENT OF OWNERSHIP John C.D. Drolla, Jr. and Eddie Vassalo, Title Disputes And Basic Causes of Action, in A. Property Rights STATE BAR OF TEXAS PROF. DEV. Unless otherwise specified in the conveyance PROGRAM, 15th ADVANCED REAL ESTATE instrument, Texas law presumes that each LAW COURSE R. For a discussion on conveyance vests in the Grantee an estate in fee easements, party walls, fences, encroachments simple, together with all of the rights appurtenant and nuisances, the practitioner may want to thereto. Russell v. City of Bryan, 919 S.W.2d review Richard Melamed and John C.D. Drolla, 698, 704. App. - Houston [14th Dist.] 1996, writ Jr., So, You Think That's Your Boundary?, in 2 denied); TEX. PROP. CODE ANN. § 5.001 STATE BAR OF TEXAS PROF. DEV. (Vernon 1984 and Supplement 2001). Deeds are PROGRAM, 13th ADVANCED REAL ESTATE construed to confer upon the grantee the greatest LAW COURSE P (1991). estate that the terms of the instrument will permit. Lott v. Lott, 370 S.W.2d 463, 465; Russell v. City II. BACKGROUND of Bryan, 919 S.W.2d at 705. A fee simple estate entitles the owner to (i) Boundary line disputes arise for numerous the entire property; (ii) unconditional powers of reasons, the primary of which is our reliance on disposition during the owner's life; (iii) title that metes and bounds surveys. Surveying instruments descends to his or her heirs or legal of old were probably only as accurate as their representatives upon his or her death; (iv) both legal and equitable title. Field v. Rudes, 204

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S.W.2d 1, 4 Tex. Civ. App. - El Paso 1947, rev. of the minerals. Acker v. Guinn 464 S.W.2d 348 on other grounds 204 S.W.2d 5 [Tex. 1947]). The (Tex. 1971). The test of reasonable use is owner of the fee simple estate owns the property whether an ordinary person would have made a to its boundary lines and "from the center of the similar use of the property, taking into earth to the top of the sky.” County School consideration the importance of the use and the Trustees v. Free 154 S.W. 2d 935, 937 (Tex. Civ. amount of damage inflicted on his neighbor. Gulf, App.–Texarkana 1941, writ ref’d w.o.m.). This C.&.S. F. R. Co. at 1000-1001; Gray vs. S.T. boundary can be violated on the surface, below Woodring Lumber Co. 197 S.W. 231, 234(Ct. the surface (in the form of subsurface trespass) Civ. App. Ft. Worth, 1917) writ ref. Dallas Land and in the airspace above the surface. & Loan Co. v. Garrett 276 S.W. 471, 474 (Tex. Civ. Ap. Dallas 1925, no writ). B. Uses of Land Owners of land may use their property as IV. LOCATING THE BOUNDARY they wish, provided it is used in such a way as not to injure others, and the use is not otherwise A boundary is the marking or dividing line specifically prohibited by statute, state or federal. between two parcels of land. A boundary point is Every person is entitled to make reasonable use of the end of such a line. In theory, the boundary line his or her property. No one may make is no wider than a pencil mark. unreasonable use of their property to the material injury of a neighbor's property. If an act or use is D. Intent a reasonable exercise of an owner's dominion, The primary purpose in a boundary line then simply by virtue of ownership the owner dispute is to locate the survey as it was traced on should be within his or her rights. Hoover v. the ground by the original surveyor. Moore v. Horton 209 S.W.2d 646, 649 (Tex. Civ. App.- Campbell, 254 S.W.2d 1018, 1024 (Tex. Civ. Amarillo 1948, no writ). A landowner may App. - Austin 1953, writ ref'd. n.r.e.). The lawfully use his or her land, as long as such use intention of the parties with respect to the location does not infringe on the legal rights of the an of boundaries is to be ascertained from the face of adjoining landowner, Gulf, C. & S. F. R. Co. v. the grant in light of the surrounding circumstances. Oakes 58 S.W.999, 1000-1001 (Tex. 1900); Stafford v. King, 30 Tex 257 (1867); City of Comanche Duke Oil Co. v. Texas Pac. Coal & Webster v. City of Houston, 855 S.W.2d 176, Oil Co. 298 S.W. 554, 560 (Tex. Comm. App. 178-179 (Tex. App. - Houston [14th Dist.] 1993, 1927); Texas & N.O.R.G. Co. v. Davis 60 writ denied); Stuart v. Coldwell Banker & Co., S.W.2d 505, 507-508 (Tex. Civ. App. Beaumont, 552 S.W.2d 904, 909 (Tex. App. - Houston [1st 1933, no writ). In the absence of nuisance, Dist.] 1952, writ ref'd. n.r.e.); Premier Royalty negligence, or physical harm, there is ordinarily no Co. v. New Birmingham Development Co., 150 liability on a landowner for diminution of the value S.W.2d 269, 274 (Tex. Civ. App. - Texarkana of adjoining land resulting from the lawful use of 1941, writ dism.). With respect to determining the his land. Johnson v. Dallas Power & Light Co. intent of the parties, case law apparently presumes 271 S.W.2d 443, 444 (Tex. Civ. Ap. Dallas, 1954); the intent of the parties is the same as that of the Rogers v. Scaling 298 S.W.2d 877, 897 (Tex. surveyor who accomplished the survey. Strong v. Civ. Ap. Ft. Worth, 1957, n.r.e.). When the use of Sunray DX Oil Company, 448 S.W.2d 728 (Tex. land is reasonable, lawful, and without negligence, Civ. App. - Corpus Christi 1969, writ. ref. n.r.e.). an adjoining landowner may not complain if his or In the Strong case, Justice Nye has written a her land is damaged. One's motive in the use of scholarly opinion on boundaries, vacancies, one's land is immaterial to liability if the owner is adjoinder and the ascertainment of the intent of acting within his or her legal rights regarding that the parties in a boundary dispute. Also in the use. However, liability may be imposed where a Strong case, then Chief Justice Green wrote a landowner's use of the property, even though concise and succinct concurring opinion on the law otherwise lawful, is found to have been negligent of vacancies and the interpretation of surveys. Of or to constitute a nuisance. For instance, an course, Justice Sharpe's dissert is a treatise in and owner of a mineral estate is entitled to make [only of itself. The reader is invited and urged to read a] reasonable use of the surface for the production the Strong case in spite of the fact that it entails

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some 62 pages inclusive of headnotes. After one on the ground, there is no need to resort to the has read the Strong case, he or she should read rules of construction, the calls speak for State of Texas v. Sunray DX Oil Company, 448 themselves. Wall v. Carrell, 894 S.W.2d 788, S.W.2d 728 (Tex. Civ. App.-Corpus Christi 1969, 794-795 (Tex. App. - Tyler 1994, writ denied); writ ref’d n.r.e.), wherein now Chief Justice Nye Gray v. King, 227 S.W.2d 872, 874 (Tex Civ writing for a unanimous court affirmed the trial App. - Austin 1950, writ ref'd.). When examining court's summary judgment in favor of persons conflicting surveys or field notes, the rules of claiming the land under chains of title to the construction provide that locative calls indicating colonial grants discussed in the Strong case. The the boundaries of the land by reference to State v. Sunray DX Oil Company case is a particular objects on the lines or on the corners concise text on construing grants and the effect of will prevail over descriptive or directing calls res judicata as well as the subtle distinction which are made without care to such exactness. between a separate trial on various issues and a Thomas Jordan, Inc. v. Skelly Oil Co., 296 severance. Chief Justice Nye set the record S.W.2d 279, 289 (Tex Civ App. - Texarkana 1956, straight on the apparent confusion of the day writ ref'd. n.r.e.). For a practical application of between separate trials and severances. The surveying procedures as applied to boundary Strong case and the State v. Sunray DX Oil determination, the reader is encouraged to review Company case are recommended reading to any Jim Johnson's article entitled, "Land Surveys.” attorney involved in a boundary dispute case James Noble Johnson, Land Surveys, in 1 and/or a trespass to try title case. STATE BAR OF TEXAS PROF. DEV. Both the Strong case and the State v. DX PROGRAM, 13th ADVANCED REAL ESTATE Oil will be discussed in more detail later in this LAW COURSE I, (1991). paper. See discussion infra paragraph VIII. D. It is an established rule that where possible in a C. Priority and Dignity of Calls boundary case, the footsteps of the surveyor shall be followed. Howland v. Hugh, 570 S.W.2d 876, 1. A Little History 882 (Tex. 1978); Stafford v. King, 30 Tex. 257; Justice Stokes of the Amarillo Court of Civil State of Texas v. Brazos River Harbor Appeals provides an informative discussion of the Navigation District, 831 S.W.2d 539, 542 (Tex. priority and dignity of calls along with some App. - Corpus Christi 1992, writ denied). Intent historical roots in Krider v. Winterman, 108 with respect to the location of boundaries is S.W.2d 452 (Tex. Civ. App. - Amarillo 1937, ordinarily a question of fact. Finkelstein v. n.w.h.), wherein he states: Carpenter, 795 S.W.2d 897, 898 (Tex. App. - Beaumont 1990, writ denied); Haby v. Howard, It is always the purpose of surveyors 757 S.W.2d 34 (Tex. App. - San Antonio 1988, and others dealing with land titles and writ denied). boundary lines to leave signs and records by which their footsteps may be E. Construction followed. Natural objects, such as The rules for ascertaining boundaries, as rocks, rivers, lakes, and prominent hereinafter discussed, are invoked only when the topographical points, have always been calls in an instrument are inconsistent or lead to used by surveyors in marking their trails, different results. The law in Texas is clear that in and are considered by them and by the locating disputed boundary lines, priority must be courts as of first importance. Next in given to the calls of the original grant that are the order of dignity come artificial more specific and definite in preference to those objects, such as trees, stakes, artificial merely general and indefinite. Stafford v. King mounds and pits. Also in this class 30 Tex. 257 (1867); Higginbotham v. Davis, 35 come such objects as public roads, S.W. 3d 194, 196 (Tex. App. – Waco 2000 pet. railroads, fences, and the like. Course denied); Mohnke v. Greenwood, 915 S.W. 2d and distance are generally, if not 585, 591(Tex. App. – Houston [14th Dist.] 1996, universally, subordinated in importance no writ). If there is no conflict between the calls to either natural or artificial objects. found in the field notes, the deed, and those found The reason for such a rule is obvious.

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Chain carriers are likely to miscount the Houston [14th Dist.] – 1996, no writ) holding “the number of chains and the surveyor may law of legal preferences gives dignity to calls in inadvertently enter on his record a the following order (1) natural objects; (2) artificial course at variance to the one he is objects; (3) course; and (4) distance.” Mohnke at following, but natural objects to not 591. See also, Howland v. Hough, 570 S.W.2d change and artificial objects made upon 876 (Tex. 1978) the ground are generally susceptible of relocation or proof by trusted memories. 2. Natural Objects Krider at 454. Calls to natural objects include rivers, springs, mountains, types of soil and similar objects which Chief Justice Marshall, in Newsom v. Pryor, occur naturally on the ground. These types of 7 Wheat. 7, 10, 5 L.Ed. 382, is quoted by an early monuments are calls of the highest priority. Haby Texas authority in a statement of the rule "that the v. Howard, 757 S.W.2d 34, 40 (Tex. App. - San most material and most certain calls shall control Antonio 1988 writ denied); Strong v. Sunray DX those which are less material, and less certain. A Oil Company, 448 S.W.2d at 745. call for a natural object, as a river, a known stream, a spring, or even a marked tree, shall 3. Artificial Objects control both course and distance." Stakes placed in the ground, lines marked or marks made on trees by the surveyor and calls for The rule is well settled that, in locating land adjoinder are types of artificial monuments which lines, call for natural or artificial objects will rank second in priority. Hill v. Whiteside, 749 control calls for course and distance; that is to say, S.W.2d 144, 151 (Tex. App. - Fort Worth 1988, that calls for course and distance must, in case of writ denied); Strong v. Sunray DX Oil Company, conflict, yield to call for natural and artificial 448 S.W.2d at 736. objects. Stafford v. King, 30 Tex. 257, 94 Am.Dec. 304; Thatcher v. Matthews, 101 Tex. 4. Courses 122, 105 S.W. 317, 318 (1907); Temple Lumber A course is the direction of the boundary as Co. v. Felts et al. 260 S.W. 228, 230.(Tex. Civ. it varies from the north or south toward the east or App. – El Paso 1924, no writ) west. As between calls for course and calls for distances, the calls for course are considered more In Thatcher v. Matthews, supra, Justice reliable. Lilly v. Blum, 70 Tex 704, 6 S.W. 279, Gaines, speaking for the Supreme Court, said: 284-285 (1887); Strong v. Sunray DX Oil Company, 448 S.W.2d at 736. In Stafford v. King, 30 Tex. 257, 94 Am.Dec. 304, Mr. Justice Smith in a 5. Distances well-considered and very elaborate Except for a call for quantity, a call for opinion lays down the rules which should distance is the least satisfactory and least reliable govern in a case of this character, as of all calls. Bolton v. Lamb, 16 Tex 96 (1856); follows: In case of conflicting calls, the Strong v. Sunray DX Oil Company, 448 S.W.2d order of dignity and control are: (1) at 736. There is a presumption that the farther the natural objects; (2) artificial objects; and distance, the more room for error in the call. (3) course and distance. That is to say, Priority and dignity are not effected by the fact calls for course and distance must, in that scientific instruments have been used. Johns case of conflict, yield to calls for natural v. Schutz, 47 Tex 447 (1877). objects and to artificial objects, among which he expressly mentions “stakes.” 6. Quantities The principles so announced have since Calls for quantity are given small dignity and prevailed in this court without any low priority and always yield to calls for courses, important modification. Thatcher at 318 distances and all other modes of description. Jordan v. Young, 56 S.W. 762, 764 (Tex. Civ. The Thatcher case was followed by Mohnke v. App. - 1900, no writ). Greenwood, 915 S.W. 2d 585 (Tex. App. –

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V. TYPES OF BOUNDARIES presumed that the grantee of land adjoining a A. Private Land street or highway owns the land to the center of As a general rule, most boundary line disputes the road. This is true whether the highway is a arise between private land owners. The rules private or public thoroughfare. Of course, this applicable to private landowners whose boundaries presumption assumes that the appurtenant strip are adjoining are applied reasonably and equally to exists in fact at the time of the conveyance. Id. at both. The term "adjoining landowners" signifies the 836. Nor will the presumption be overcome owners of land which are separated by a common simply because the property conveyed utilizes boundary line. As so used, the term "adjoining metes and bounds which stop at the street or landowners" excludes the owners of land lying highway. Likewise, the presumption does not along or bordering a highway, street or other apply if the strip is larger and more valuable than public place. Although such lands "adjoin" the the conveyed tract. Angelo v. Biscamp, 441 public property in a literal sense, such owners are S.W.2d 524, 527 (Tex. 1969). The presumption generally designated as "abutting landowners." 2 does not apply if the grantor owns both sides of TEX. JUR. 3d, Adjoining Landowners § 1 the strip. Rio Bravo v. Weed 121, Tex. 427, 50 (1995). "Boundary" is defined in Texas S.W.2d 1080, 1086 (1932), cert. denied, 288 U.S. Jurisprudence as the marking or dividing line 603, 535. Ct. 387, 77 L.Ed. 978 (1933) All of the between two parcels of land, and a boundary point foregoing cases were followed in Krenek v. is the extremity of such a line. The lines or points Texstar North America, Inc., 787 S.W.2d 566, are indicated by various natural or artificial 568-569 (Tex. App. - Corpus Christi 1990, writ descriptive elements, such as monuments, courses denied), a somewhat recent case which addressed and distances, area or quantity, plats or maps, and these issues. Public policy and the strips and adjoining lands or waters. Often, the description gores doctrine dictate that there is a presumption utilizes a combination of such elements, in which that the grantor did not intend to withhold his or case questions often arise as to the relative her interest in the road if he or she has otherwise importance of various inconsistent or conflicting conveyed to its edge. Word of Faith World v elements. 2 TEX. JUR. 3d, Adjoining Oechsner, 669 S.W.2d 364,367 (Tex. App.-Dallas Landowners § 28 (1995). Under the Submerged 1984, no writ). This rule would also apply where Lands Act of 1953, as amended, the term the property adjoins an alley using the Rio Bravo "boundaries" includes the seaward boundaries of Co. case analysis of reasons behind the a state or its boundaries in the Gulf of Mexico as presumption. Rio Bravo Co. 50 S.W. 2d at 1086- they existed at the time the state became a 1087. In order for the Grantor to withhold member of the Union, or as approved by conveyance of the strip running to the center of Congress, or as extended or confirmed pursuant to the road, an express reservation of the interest the act. 73 TEX. JUR. 3d, Water § 236 (1990). must be clearly and unequivocally set out in the Subject to applicable restrictions and zoning document of conveyance. The conveyance of a ordinances, each land owner has the right to erect tract of land adjoining a street, highway or right of improvements on his land up to the boundary line way will be deemed to convey the strip to the as deep or as high as he or she may desire. middle of the road even though the field notes do not specifically refer to the right of way. State v. B. Roads Williams, 161 Tex 1, 335 S.W.2d 834, 836 (1960); Roadways present a somewhat unique Goldsmith v. Humble Oil and Refining Co., 145 concern to the question of boundaries. Texas has, Tex 549, 199 S.W.2d 773, 775 (1947). in early cases, recognized the well-established rule of the common law that absent an express C. Water Courses reservation to the contrary, a conveyance of land 1. Natural Water Courses bound on a public street or highway carries with it Brooks, creeks, rivers and streams are the fee to the center of the road as part and parcel natural water courses. They exist where a of the grant. Mitchell v. Bass, 26 Tex. 372 permanent source of supply sends a current of (1862). Our jurisprudence continues to recognize water down a channel embracing a bed and its this presumption. State of Texas v. Williams, 161 banks. Hoefs v. Short, 114 Tex 501, 273 S.W. Tex. 1, 335 S.W.2d 834, 836 (1960). It is 785, 787 (1925). Where the boundary calls are

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along the meanders of a water course, even in v. Gonzales, 189 S.W.2d 519, 521-522 (Tex. Civ. precise metes and bounds, it is presumed that the App. - San Antonio 1945, writ ref'd w.o.m.). water course is the boundary, and that the However, if the water course changes suddenly boundary shifts as the water course shifts. Allen and leaves its old banks to form new ones, the v. Morales, 665 S.W.2d 851, 853 (Tex. App. - boundary will remain in the middle of the old Fort Worth 1984, no writ). Also, when the line channel even though water no longer flows there. along the sea is a “meander line,” the field notes Siddal v. Hudson, 206 S.W. 381, 382 (Tex. Civ. thereof do not make the outer boundary, but the App. - Galveston 1918, writ dism'd). See outer boundary is the shore line. Rudder v. discussion infra paragraph V.C.6. The Siddal Ponder, 156 Tex. 185, 293 S.W. 2d 736, 743 case’s decision came about as a result of the (1956). In such a description, the stream, and not United States Supreme Court decisions in State of the various courses and distances, is the real Arkansas v. State of Tennessee. 246 U.S. 158, boundary line. Dellana v. Walker, 866 S.W.2d 38 Sup. Ct. 305, 65 L. Ed. 638. Siddal v. Hudson, 355 (Tex. App. - Austin 1993, writ denied). 206 S.W. at 382. A grant of land contiguous to a However, the deed must clearly refer to the non-navigable stream, without reservation, is natural object as a boundary of the conveyed land presumed to pass title to the center of the stream. for the specific course and distance calls to be Strayhorn v. Jones, 157 Tex. 136, 300 S.W.2d construed as a meander line. State v. Brazos 623, 634 (1957); McDonald v. Alexander, 388 River, 831 SW2d 539, 543 (Tex. App. - Corpus S.W.2d 725, 727 (Tex. Civ. App. - Waco 1965, no Christi 1993, writ denied). The determination of writ). This rule will be applied even if the land is ownership of the bed of the water course is made conveyed by metes and bounds, fails to mention on the basis of whether or not the water course is the stream or calls for marked corners on the bank navigable or non-navigable. which do not correspond with the center of the stream. Muller v. Landa, 31 Tex 265 (1868). 2. Navigable Water Courses The exception to this rule, however, applies to The State is the owner of the soil underlying conveyances from the sovereign. Strayhorn 300 navigable streams. Maufrais v. State, 142 Tex. S.W. 2d at 634. The theory behind this exception 559, 180 S.W.2d 144, 148 (1944). A water course is that the surveyor usually cannot go into the is considered navigable if it is (i) navigable in fact stream to make a corner so the stakes will be (capable of being used in customary modes of placed where the surveyor stops. Typically when trade or travel on water) or (ii) navigable in law land is conveyed by acreage, the surveyor will use (retaining an average width of thirty feet from its a series of meander lines. These lines do not mouth up). TEX. NAT. RES. CODE ANN. § determine the boundary of the property conveyed 21.001 (Vernon 2001). but simply define the turns, curves and bends of Prior to December 14, 1837, the Republic of the banks of the stream or other body of water. Texas reserved title to the beds of perennial They assist in quantifying the amount of land. streams. Thereafter the state reserved title to all Simply stated, meander lines of surveys of land beds of all water courses that are navigable in adjacent to or bounding upon a stream are not to fact. Title to navigable waters, whether navigable be considered as boundaries, but they are to follow in fact or statutorily navigable, is in the state in the general course of the stream, which itself trust for the public. In Re The Adjudication of constitutes the real boundary. Stover v. Gilbert, Water Rights of the Upper Guadalupe Segment, 112 Tex. 429, 247 S.W. 841, 843 (Comm'n App. 642 S.W.2d 438, 444 (Tex. 1982); Motl v. Boyd, 1923, opinion adopted); State of Texas v. Brazos 116 Tex. 82, 286 S.W. 458, 468 (1926). River Harbor Navigation District, 831 S.W.2d at 542. 3. Non-navigable Water Courses As to grants made after the act of 1837, the 4. Tidal Waters property owner's boundary is at the center of the Under common law, a grant of land bounded water course. City of Victoria v. Schott, 9 Tex by a body of water in which the tide ebbs and App 332, 29 S.W. 681, 682 (1895, no writ). The flows does not convey title past the ordinary high boundary will follow the water course should it water mark. Galveston v. Menard, 29 Tex 349 change imperceptibly over a period of time. Tyler (1859). The Republic of Texas adopted the

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common law of England on 20 January 1840. It (Tex. 1999); Maufrais v. State, 180 S.W. 2d at adopted the common law as to the boundary of the 148. The Brainard case dealt with the effect of sea. This boundary was the mean high tide of the a government-built dam located some 15 to 45 sea waters. Rudder v. Ponder, 293 S.W. 2d. 736 miles upstream from the disputed land of the (1956). Under civil law, the boundary is the mean riparian owners which had resulted in changes that higher high tide (the highest tide in winter). "Mean were not inherently avulsive, and with Court high tide," in Anglo-American law is the average holding that the riparian owners were entitled to of the highest daily tides over a long period. It gain title to the new land formed by the accretion must be distinguished from the "mean higher high or reliction that was influenced by artificial means. tide" of the Mexican (Spanish) law, which is a Brainard at 23-24 The Brainard case defined higher or more landward line. The line is accretion as “the process of increasing real estate calculated over regular tidal cycles of 18.6 years. by the gradual and imperceptible disposition by Luttes v. State, 159 Tex 500, 324 S.W.2d 167, water of solid material, through the operation of 181, 191-192 (1958); Campbell v. State, 626 natural causes so as to cause that to become dry S.W.2d 91 (Tex. App. - Corpus Christi 1981, no land that was once before covered by water;” it writ). Justice Garwood provides a very scholarly defined accretion by alluvion as “the gradual opinion in the Luttes case, an opinion containing a addition made to land by the washing of the review of Spanish, Roman and Mexican law and water;” and it defined accretion by reliction as a history of tidal waters shorelines. Its reading is “the gradual addition made to and by a recession recommended. of the water, as when the water shrinks below the ususal water-mark; reliction is the uncovering of 5. Lakes previously submerged land by a permanent A conveyance of land and adjoining lakes and recession of a body of water, rather than a mere other bodies of still water generally contain a call temporary or seasonal exposure of the land.” for a margin edge of water, high or low water Brainard at 17. Citing Coastal Indus. Water mark, shore or bank. Such calls establish the Auth. v. York, 532 S.W. 2d 949, 952 (Texas boundary at the edge of the water rather than at 1976), the Texas Supreme Court went on to the center of the bed. This rule is based on the comment and conclude that where as avulsion practical impossibility of partitioning such a body may arise from sudden abandonment by a stream of water. Ulbricht v. Friedsam, 159 Tex 607, of it old channel and the creation of a new one, in 325 S.W.2d 669, 674 (1959). The Ulbrecht case the present case “the doctrine of accretion” is recommended reading to all practitioners who controlled. While under the doctrine of accretion, may have questions regarding lakefront properties, the owner of riparian land would gain title to land especially along rivers ultimately dammed to that accretes to his or her property by natural and create lakes. imperceptible deposit. Norrell v. Aransas County Navigation Dist. No. 1, 1 S.W. 3d 296, 6. Accretion, Avulsion, or Reliction 298 (Tex. App. – Corpus Christi 1999, no pet.); Any time an individual is dealing with water Ely v. Briley, 959 S.W. 2d 723, 726 (Tex. App. – and water courses, and the boundaries thereof he Austin 1998, no pet.). “Avulsion” is a sudden and or she must have some familiarity with the perceptible loss or addition of land by the action of meaning and effect of accretion, avulsion and water, or a sudden change in the bed or course of reliction. These terms are often used in a stream. 2 TEX. JUR. 3d, Adjoining discussions involving changes or potential changes Landowners § 25 (1995). Gains to or losses to boundaries of property bordering on water or from land abutting a stream that take place by water courses. As a general rule, where the avulsion do not effect a change in ownership. location of the margin or bed of a body of water Brainard, 12 S.W. 3d at 17; Coastal Indus. that constitutes the boundaries of land and is Water Auth. v. York, 532 S.W. 2d at 952. gradually and imperceptibly changed or shifted by accretion, reliction or erosion, the margin or bed of VI. BOUNDARY LINE AGREEMENTS the body, as so changed, remains the boundary line A. Oral Agreements of the tract, which is extended or restricted Boundary lines may be established by an oral accordingly. Brainard v. State, 12 S.W. 3d 6, 17 agreement. The leading case on oral boundary

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line agreements appears to be Gulf Oil Corp. v. its existence. Although the agreement will not be Marathon Oil Co., 137 Tex. 59, 152 S.W.2d 711, binding upon a subsequent purchaser without 714 (1941). The case held that when there is notice, McCabe v. Moore, 38 S.W.2d 641, 642 uncertainty, doubt or dispute as to the location of (Tex. Civ. App. - Austin 1931, writ dism'd), a a boundary, it may be fixed by oral agreement, subsequent purchaser will be deemed to have mutually binding upon the adjoining landowners, notice if improvements have been executed in even though they may have been mistaken as to accordance with the agreed boundary. Houston the true location of the line. The existence of v. Sneed, 15 Tex. 308 (1855). A party to a uncertainty, doubt or dispute is essential to the boundary agreement must have some interest in validity of the agreement. Gulf Oil Corp. v the property. Tilton v. Macejewski, 723 S.W.2d Marathon Oil Co., 152 S.W. 2d at 714. See also 288 (Tex. App. - Beaumont 1987, no writ). McAllister v. Samuels, 857 S.W.2d 768 (Tex. App. - Houston [14th Dist.] 1993, no writ), and B. Acquiescence Thompson v. Jamison, 699 S.W.2d 687 (Tex. A boundary line may be established by App. - Texarkana 1985, no writ). The line must recognition and acquiescence by all interested not have been definitely established and must be parties for a sufficient length of time. This period doubtful and uncertain. The agreement must not is not precise but is in excess of the time required be an attempt to reproduce the true line. If the by the statute of limitations for the acquisition of true boundary line were ascertainable, there would property by adverse possession. Yates v. be no need for the agreement and therefore, it Hogstrom, 444 S.W.2d 851 (Tex. Civ. App. - could be non-binding or invalidated. Duval Houston [14th Dist.] 1969, no writ). To establish County Ranch Co. v. Foster, 318 S.W.2d 25, 30 a boundary by acquiescence, one must show that (Tex. Civ. App. – San Antonio 1958, writ ref'd the agreed boundary line, be it by fence or n.r.e.). The oral agreement is not considered to otherwise, was agreed to as a result of a violate the statute of frauds since the parties do disagreement between landowners over the not undertake to acquire title but simply to boundary line of their respective properties and the determine the location of what they already own. existence of uncertainty, doubt or dispute is Lecompte v. Toudouze, 82 Tex. 208, 17 S.W. essential to the agreement’s validity. Mohnke 915 1047, 1050 (1891). Likewise, oral agreements S.W. 2d at 595. As in the case of oral establishing boundary lines, where there is agreements, establishment of a boundary line by uncertainty, doubt or dispute as to the location of acquiescence only applies when there is the boundary, are not invalidated by the general uncertainty as to the true boundary line. conveying statute found in TEX. PROP. CODE Acquiescence constitutes a strong presumption ANN. § 5.021 (Vernon 1984). An oral boundary except against the state or its subdivisions. agreement, if binding, has the same effect as Although the passage of time for an established execution of a deed to the strip in question. fence is not conclusive of an agreed line, it is Houston Title Guaranty Co. v. Fontenot, 339 strong evidence creating a presumption of S.W.2d 347, 351 (Tex. Civ. App. - Houston [14th acquiescence. Floyd v. Rice, 28 Tex. 341 (1860); Dist.] 1960, writ ref. n.r.e.). The agreement must Higgibotham v. Bagley, 346 S.W.2d 142, 144 be executed by the erection of physical (Tex. Civ. App. - Beaumont 1961, writ disms'd). monuments on the agreed line or by actual Acquiescence will also not apply as a matter of possession or use or by improvement to the law if there is no evidence of any agreement other property with reference to the line. Farmer v. than just the acquiescence. It is a fact question Kornfeuhrer, 271 S.W.2d 501, 502 (Tex. Civ. for a jury. Taylor v. Benton, 390 S.W.2d 509, App. - San Antonio 1954, no writ); Thompson v. 512-513 (Tex. Civ. App. - Eastland 1965, no writ). Jamison, 699 S.W.2d 687, 688 (Tex. App. - 1985, The question of whether or not predecessors in no writ). The oral agreement is binding upon the title have established a fence boundary by parties and subsequent purchasers with notice of agreement is generally a question of fact.

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Thompson v. Jameson, 699 S.W.2d 687 (Tex. careful not to place plaintiff's title to all of his or App. - 1985, no writ). Lastly, when one of the her property in issue, if only a part of the realty parties, by their own acquiescence, misleads the described by his or her deed is in dispute. To do other to his or her injury, the line acquiesced in so may result in loss of title to the entire property becomes established by estoppel. including that in which no dispute exists as a formal pleading of trespass to try title puts both C. Written Agreements title in issue which defendant plea of not guilty is Boundary line agreements should be in entered. Permian Oil Co. v. Smith, 129 Tex. 413, writing. Written boundary line agreements are 107 S.W.2d 564, 570 (1937). Justice Elwood recordable, not susceptible to fading memories, or Fouts, speaking for the Court stated: the elements of nature. Such an agreement can endure for time immemorial if properly drafted. Had the pleadings in this case confined All owners and lienholders should join in or the parties to the issue of locating a subordinate their interests to the boundary line boundary, we possibly might face a agreement. Parties not so joined or subordinated different case. The cause of action will not be bound, unless the evidence shows which was asserted against the ratification and adoption. Gulf Oil Corp. v. defendant by the plaintiff in the trespass Marathon Oil Co., 152 S.W.2d at 721. The to try title suit of Monroe v. Hickox, agreement should contain appropriate quitclaim pleaded in general form, was the claim language subject to any easements, liens, to the title and possession of the land restrictions, mineral interests or other described. The defendant’s plea of encumbrances. As an added note, attention not guilty admitted his possession and should be paid to Texas Agriculture Code put in issue the plaintiff’s cause of Annotated §143.121 (Vernon 1982 and action. The plaintiff failed and the Supplement 2000), and Texas Penal Code defendant prevailed. In such an Annotated §28.03 (Vernon 1994 and Supplement instance both the title and the 2001)should be reviewed to prevent violation for possession of defendant was wrongful fence removal in arriving at any established as between the parties by boundary line agreement. the judgment. In this state a petition limited to the statutory form of VII. LITIGATION INVOLVING trespass to try title always put in issue BOUNDARIES both title and possession. Any one of Actions to try title might involve questions of a number of facts may determine the boundaries, but this does not in and of itself make issue, but the cause of action remains every such case a boundary line case. Chanoux the same. If the plaintiff seeks to limit v. Title Insurance Co., 258 S.W. 2d 867-868 the issue to one of such facts, he must (Tex. Civ. App. - El Paso 1953, writ ref'd. n.r.e.). do so by special pleading in appropriate A trespass to try title suit is a proper method of form. By so doing he may limit the case settling boundary questions, though not the only to the portion of his land involved in the method. Long v. Chapman, 151 S.W.2d 879, 880 boundary dispute, or possession, or to (Tex. Civ. App. - Fort Worth 1941, no writ). some other incident of title. Permian Oil Boundary line litigation does not require a plaintiff Co. at 570 [emphasis supplied, not that to prove superior title to the degree required in of the Court]. trespass to try title actions. A recorded deed is sufficient to show an interest in the disputed A high degree of care should be taken to property. Brownlee v. Sexton, 703 S.W.2d 797, accurately describe only the property in 800 (Tex. App. - Dallas 1986, writ ref'd. n.r.e.). dispute in the plaintiff’s petition. In litigation In a boundary dispute, attorneys should be involving boundary disputes over privately held

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land, retaining a surveyor to review the property nature of the suit is determined for venue purposes descriptions in muniments of title, perform an from the plaintiff's pleadings. Spiritas Holdings, accurate survey on the ground, and be prepared to Inc. v. Darling-Delaware Company, Inc., 875 testify concerning the findings is a must. Van S.W.2d 14, 16 (Tex. App. - Fort Worth 1994, writ Zandt v. Holmes, 689 S.W.2d 259 (Tex. App. - denied); Energy Reserves Group, Inc. v. Tarina Waco 1985, no writ) has concisely set forth the Oil Co., 664 S.W.2d 169, 171 (Tex. App. - San test to be utilized to determine whether or not a Antonio 1983, no writ); Pinkston v. Johnson, 578 suit is a trespass to try title or boundary dispute S.W.2d 184, 186 (Tex. Civ. App. - Waco 1979, no case. Questions of title notwithstanding, if there is writ). no case but for the boundary question, then it is a boundary suit. Id at 261-262; See also Brownlee C. Parties v. Sexton, 703 S.W.2d 797 (Tex. App. - Dallas A person must have a right to assert 1986). The ruling in Nye v. Hawkins, 65 Tex. ownership to property to prevail in a boundary line 600 (1866) established early on that suits to dispute Farrow v. Simms, 311 S.W.2d 473, 478 establish a boundary may not be maintained in (Tex. Civ. App. - Dallas 1957, writ ref'd. n.r.e.). equity where total relief can be obtained by a While title is not necessarily an essential element trespass to try title proceeding. Still, equity may of a boundary line suit, title and right to possession well be ancillary to the boundary question where are essential elements of a suit in trespass to try there is misconduct on the part of an individual title. Thus, a plaintiff in a trespass to try title suit having a special duty requiring him or her to must have a present legal right to lawfully possess pursue or perpetuate the boundary in question. the land in question. The only necessary party defendant is the party in possession. Kennesaw A. Jurisdiction Life & Acc. Ins. Co. v. Gross 694 S.W. 2d 115, Exclusive jurisdiction for trespass to try title 118 (Tex. App. – Houston [14th Dist.] 1985, writ suits is in the district courts by virtue of Texas ref’d n.r.e.). A proper defendant is one who has Constitution Article V Section 8. Chapter 25, possession, with or without claim to title, or claims Texas Government Code (Vernon 1988 and in interest in title, with or without possession. See Supplement 2001)has granted certain statutory TEX. R. CIV. P. 784. A necessary party is one county courts jurisdiction to hear trespass to try who is so vitally interested in the property in title cases, to-wit: Harris, Hopkins, Nueces, Smith, question that a valid judgment could not be Starr, and Tarrant Counties. Additionally, any rendered without his presence. Stanolind Oil & probate court or court properly having probate Gas Co. v. State of Texas, 136 Tex. 5, 133 jurisdiction may hear suits involving title to real S.W.2d 767, 770 (1939), mod'd on other property so long as the same are incident to an grounds, 136 Tex. 5, 145 S.W.2d 569. Proper estate. TEX. PROB.CODE ANN §5 (Vernon parties include landlords, remaindermen, 1980 and Supplement 2001). reversioner or others who may claim any part of or interest in the disputed property, TEX. R. CIV. B. Venue P. 785, or warrantors, TEX. R. CIV. P. 786. Rule Venue is mandatory in the county where the 786 allows a mortgagor to intervene as a matter of land or any part thereof is situated. TEX. CIV. right. Williams v. Ballard, 722 S.W.2d 9,11 (Tex. PRAC. & REM. CODE ANN §15.011 (Vernon App.-Dallas 1986, no writ). A plaintiff claiming Supp. 1998 and Supplement 2001). Proper venue title by limitation should join all joint owners of the is determined by the character of the lawsuit as a disputed property in order to defeat title in all of whole, and inclusion of a plea in trespass to try them. Conversely, one tenant in common or joint title cannot by itself change the character of the tenant may maintain a trespass to try title suit lawsuit nor the proper venue therefor. Phillips against a trespasser without joining the other Petroleum Co. v. Mecom, 375 S.W.2d 335, 339 cotenants, and may recover the entirety of the (Tex. Civ. App. - Austin 1964, no writ). The common property against the trespasser for the

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benefit of all cotenants. Boone v. Knox, 80 Tex. such facts as show the plaintiff to be entitled 642, 16 S.W. 448 (1891). thereto and the amount thereof.

D. Plaintiff's Petition 11. It shall conclude with the prayer for the relief Texas Rule of Civil Procedure 783 contains sought. the requirements for a statutory petition in trespass to try title, but Rule 783 does not apply to a pure The formal averments as set forth in Rule boundary suit. Yet, there are similarities in the 783 are all that is required to establish jurisdiction two pleadings. These similarities lend themselves in the trespass to try title action. A petition to discussion in the context of Rule 783's alleging nothing more is legally sufficient Yoast v. requirements. Yeast, 649 S.W. 2d 289, 292 (Tex. 1983). A petition in a boundary suit must describe Manured v. Texas Power & Light Co., 448 the land [the boundary in dispute] by metes and S.W.2d 566, 568 (Tex. Civ. App. - Fort Worth bounds. Dotson v. Allen, 259 S.W.2d 343 , 1969, no writ). Under these formal averments a 344(Tex. Civ. App. - Eastland 1953, writ ref. plaintiff can recover upon a showing of equitable n.r.e.). The boundary line or lines in question as well as legal title. Binford vs. Snyder, 144 should be identified by objects found on the ground Tex. 134, 189 S.W.2d 471, 473 (1945). The law and ambiguous calls should be avoided. Any recognizes that the petition in a formal action of present or past boundary line agreements as well trespass to try title is often fictitious. Maxwell v. as the ratification thereof should be plead. Rule Campbell, 282 S.W.2d 957, 959 (Tex. Civ. App. - 783 requires, a petition for trespass to try title to Waco 1955, writ ref'd). include: E. Multiple types of allegations 5. The real names of the plaintiff and defendant Multiple types of allegations may be joined and their residences, if known. with either a boundary suit pleading, trespass to try title, suit to quiet title, or specially pled title. 6. A description of the property by metes and Many times a boundary dispute will be plead with bounds, or with sufficient certainty to identify a trespass to try title cause of action. Commonly, the same, so that from such description a plea to quiet title or a plea to remove cloud on possession thereof may be delivered, and title will be pled in conjunction with a trespass to state the county or counties in which the try title allegation. An action for damages to land same are situated. sought to be recovered may also be joined to a boundary suit or a trespass to try title suit. 7. The interest which the plaintiff claims in the property, whether it be a fee simple or other F. Property Description estate; and, if he or she claims an undivided The property or boundary line which is the interest, the petition shall state the same and subject matter of a suit should be described in the amount thereof. plaintiff's petition by metes and bounds or otherwise as sufficient to allow delivery of 8. That the plaintiff was in possession of the possession upon final judgment of the court. The premises or entitled to such possession. plaintiff has the burden of adequate description of the property so as to put defendant on notice of 9. That the defendant afterward unlawfully which boundary plaintiff seeks to establish or entered upon and dispossessed him or her of which lands plaintiff seeks to recover. Valdez v. such property, stating the date, and withholds Barrera, 647 S.W.2d 377, 382 (Tex. App. - San from him or her the possession thereof. Antonio 1983, no writ). Failure to adequately describe the realty in dispute precludes recovery 10. If rents and profits as damages are claimed, against owners of record, Coleman v. Waddell,

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151 Tex. 337, 249 S.W.2d 912, 913 (1952). copies of such instrument, with the names of the subscribing witnesses, shall be included, or if such G. Discovery unrecorded instrument is lost or destroyed, the Boundary line litigation holds no mystique, the parties shall state the nature of the instrument and same discovery rules applicable to all civil suits are its loss or destruction. Thus, the abstract of title also applicable in a boundary suit. Interrogatories, needs to set forth only the documentary evidence requests for admissions, requests for production of upon which the party expects to rely in showing documents, depositions, requests for disclosure title. Davis v. Dewlen, 136 S.W. 2d 900, 904 and other discovery tools should be utilized where (Tex. Civ. App.-Beaumont 1939, writ dism’d); appropriate. The prudent practitioner may also Jay v. United Fidelity Life Insurance, 285 want to utilize two discovery tools of particular use S.W.2d 957, 958 (Tex. Civ. App. - Amarillo 1955, in trespass to try title actions--an abstract of title writ ref'd n.r.e.). Limitation title is included within and a surveyor. the scope of Rule 793, Reeves v. Fonville, 267 S.W.2d 238, 240 (Tex. Civ. App. - Texarkana 1. Abstract of Title 1954, no writ). More precisely, the rule applies Texas Rules of Civil Procedure 791 through where defendant seeks to uncover a plaintiff's 794 deal with demand for abstract of title, muniments of title establishing a limitation claim, amendment of abstract of title, time for filing and but does not apply when evidence in support of a contents of abstract, in trespass to try title cases. plea of limitation is a defense to defeat plaintiff's Since a boundary dispute may be involved in a claim to disputed property. Davis v. Dewlen, 136 trespass to try title suit, the practitioner is urged to S.W.2d at 904; Reeves v. Fonville, 267 S.W. 2d be familiar with these rules. A brief discussion is at 240: Hays v. Hinkle, 193 S.W. 153 (Tex. Civ. in order. App. - Texarkana 1917, writ ref'd n.r.e.). Rule 791 provides that either party may, by Rule 794 permits a court to allow either party notice in writing duly served, demand an abstract to file an amended abstract of title. A complete of title to the premises in question. This must be abstract may be critical to a case, as this same made not less than ten (10) days before the trial of rule limits the documentary evidence of title at trial the cause. Since Rule 792 allows the party served solely to those matters contained in the abstract of with the demand for abstract of title twenty (20) title. A local title company (for a price) may be days to file his abstract unless the court shortens very helpful and cost-effective in preparing a the time for filing, a demand for abstract should be complete abstract. After due service of a demand made early in the course of discovery. for abstract, Rule 792 provides a twenty day The purpose of Rules 791 and 792...is to deadline for filing an abstract of title with the enable the person demanding such abstract to papers of the cause. On good cause, the court investigate the records and thereby determine the may extend time for filing the abstract. Good character of the instruments upon which the cause requires a showing that the additional time opposing party relies, so that an informed defense is not prejudicial nor would result in an injustice. may be prepared. Corder v. Foster, 505 S.W. 2d Corder v. Foster, 505 S.W.2d at 648 (Tex. Civ. 645, 648 (Tex. App. – Houston [1st Dist.] 1973, App. - Houston [1st Dist.] 1973, writ ref'd n.r.e.); writ ref’d n.r.e.). Rule 793 provides that an Walker v. Barrow, 464 S.W.2d 480, 488 (Tex. abstract shall state the nature of each document or Civ. App. - Houston [1st Dist.] 1971, writ ref'd written instrument intended to be used as evidence n.r.e.). However, failure to file within the and its date; or if a contract or conveyance, its prescribed time results in denial of the failing date, the parties thereto and the date of the proof party's right to produce any evidence of his or her of acknowledgment, and before what officer of claim or title at trial TEX. R. CIV.P. 792. Hunt v. the same was made; and where recorded, stating Heaton, 631 S.W.2d 549, 550-551 (Tex. Civ. the book and page of the record. If the document App. - Beaumont 1974), aff'd, 643 S.W.2d 677; is not recorded in the county where trial is had, Mize v. Wood County, 460 S.W.2d 152, 155

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(Tex. Civ. App. - Tyler 1970, no writ). The party surveyor appointed by the court is adverse, he or failing to file is without remedy to protect his or she should consider filing a motion in limine to her rights no matter how clearly he or she may be strike ultimate factual determinations and entitled to protection by proving his or her conclusions of the surveyor in addition to a motion ownership of the property in contest. The lawsuit in limine to prevent the jury being advised that the ends and he loses his property without more ado. surveyor was appointed by the court or, Davis v. Dewlen, 136 S.W.2d at 904. Note that alternatively, to request an instruction by the court failure or refusal to file an abstract after the to the jury that the report of the surveyor is demand does not preclude the failing or refusing entitled to no greater weight than that of any other party from introducing evidence of his or her witness. The Texas Supreme Court has held that evidence against an intervener who was not the the report of a surveyor appointed by the court is demanding party. Coler v. Alexander, 128 S.W. entitled to no greater weight than another witness 664, 666 (Tex. Civ. App. 1910, no writ). Also, cognizant of the facts referred to in the report. where the plaintiff's pleadings supply information Kerlicks v. Meyer, 84 Tex. 158, 19 S.W. 379 which an abstract would contain, evidence of title (1892). A surveyor appointed by the court is supporting the pleadings is admissible, even when entitled to reasonable compensation to be taxed as a demanded abstract is not filed. Such admission costs against the losing party. Beaumont of evidence is harmless error. McCraw v. City of Irrigating Co. v. DeLaune, 173 S.W. 514, 516 Dallas, 420 S.W.2d 793, 798 (Tex. Civ. App. - (Tex. Civ. App. - Galveston 1915, no writ). Such Dallas 1967, writ ref'd n.r.e.); Van Zandt v. costs may include the work involved with Holmes, 689 S.W.2d at 262. generating his report, as well as a witness fee for testifying at trial. Whitley v. King, 581 S.W.2d 2. Appointment of Surveyor 541,544 (Tex. Civ. App. - Fort Worth 1979, no Texas Rule of Civil Procedure 796 authorizes writ). Whether the court appoints a surveyor or a court to appoint a surveyor for purposes of not, the parties should consider retaining a surveying the property in controversy. This surveyor to assist in preparation of their case and appointment may be made upon motion of either to provide expert testimony at trial to establish the party or by the court on its own motion. Unless precise location of the disputed land. good cause is shown, the surveyor's report shall be admitted as evidence at trial. H. Documentary Evidence Texas Rule of Civil Procedure 797 provides Documentary evidence to prove title is that a survey is unnecessary where there is no admissible in many forms. What the practitioner dispute as to the lines or boundaries of the land in is looking for is competent documentary evidence controversy or where the defendant admits which tends to prove the location of a disputed possession of the lands included in plaintiff's claim. boundary. It may include deeds, certificates for Where a survey is required, the surveyor headright, patents, land scrips, bounty warrants, should report to the court any natural or artificial field notes of the survey, field notes of an landmarks which indicate the true location of lines adjourning survey, or any other evidence of legal on the ground. Schunior v. Russell, 83 Tex. 83, right to located and surveyed land sufficient to 18 S.W. 484 ,488 (1892). A report which does not show the true location of the disputed boundary or do so is defective and a motion to suppress is to maintain a trespass to try title action. TEX. properly sustained. Westbrook v. Guderian, 22 PROP. CODE ANN. §22.002 (Vernon 2000). S.W. 59 (Tex. Civ. App. 1893, no writ). Prior judgments may serve as muniments of title. Schunior v. Russell, 18 S.W. at 488, further held Truehart v. McMichael, 46 Tex. 222 (1876). that conclusions and factual determinations Deeds, land grants, patents, field notes, maps, invading the province of the jury contained in a plats, surveyor's reports and abstracts of title are surveyor's report should be excluded upon proper admissible. The general rules governing the motion. Thus, if one finds that the report of a construction of deeds or other instruments granting

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real property are applicable in construing a map or damages to the plaintiff. plat. Jupe v. City of Schertz, 604 S.W.2d 405 (Tex. Civ. App. - San Antonio 1980, writ ref, 1. Texas Property Code,§22.021 (Vernon 2001) n.r.e.). An instrument of lien is not a muniment of 22.021 Claim for Improvements title and is not admissible to establish title. Moore- head v. Ellison, 120 S.W. 1049, 1050 (Tex. Civ. a. A defendant in a trespass to try title App. - 1909, writ ref'd n.r.e.). action who is not the rightful owner of Original land grants in Texas were granted by the property, but who has possessed the the Spanish, Mexican and Republic of Texas property in good faith and made governments in the 18th and 19th centuries. TEX. permanent and valuable improvements GOVT. CODE ANN. §441.202 (Vernon 1998 to it, is either: and 2001 Supplement) [formerly TEX. REV. C.V. STAT. ANN. art. 250] deems these and (1) entitled to recover the amount by other “ancient” documents to be archives of the which the estimated value of the General Land Office. As such, when properly defendant's improvements exceeds authenticated, they are admissible without proof of the estimated value of the defendant's execution. Houston v. Perry, 5 Tex. 462 (1849). use and occupation of and waste or other injury to the property; or I. Claim for Improvements A claim for improvements misplaced as a (2) liable for the amount by which the result of boundary error may be allowed in a value of the use and occupation of and boundary dispute case whether tried as a trespass waste and other injury to the property to try title suit or an independent action. Murphy exceeds the value of the improvements v. Benson, 245 S.W. 249, 254 (Tex. Civ. App. - and for costs. Austin 1923, writ ref’d). A defendant or person in possession may claim an allowance for b. In estimating values of improvements improvements in the event his or her right of or of use and occupation: possession is lost. Additionally, a defendant may request a right to remove improvements made to (1) improvements are valued at the the property in dispute. These are alternative time of trial, but only to the extent that requests for relief which are made to reduce the the improvements increased the value defendant's loss in the event the defendant loses of the property; and his or her right of possession. In order to assert a claim for improvements, (2) use and occupation is valued for the defendant must show: (1) adverse possession the time before the date the action was of the premises in controversy for at least one filed that the defendant was in year prior to commencement of the suit; (2) possession of the property, but permanent and valuable improvements to the land excluding the value resulting from the in dispute during the time of possession in good improvements made by the defendant faith; and (3) the nature of the improvements and or those under whom the defendant their value. claims. The statutory framework allows an offset situation between the value of the improvements c. The defendant who makes a claim claimed by the defendant and the possible claim for improvements must plead: for rents and profits which may be asserted by the plaintiff. Thus, a judgment could ultimately be (1) that the defendant and those under rendered requiring either the plaintiff to pay whom the defendant claims have had damages to the defendant or the defendant to pay good faith adverse possession of the

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property in controversy for at least one the removal of the improvements. year before the date the action began; J. Default Judgment (2) that they or the defendant made Texas Rules of Civil Procedure 799 and 800, permanentand valuable improvements permit judgment by default in trespass to try title to the property while in possession; suits. Where the defendant has been personally served with citation and fails to appear, Rule 799 (3) the grounds for the claim; permits judgment for plaintiff without any proof of title by the plaintiff. Where multiple parties (4) the identity of the improvements; defendant are present, some of whom answer and and some of whom default, and where the plaintiff's petition contains causes of action in addition to (5) the value of each improvement. those of trespass to try title, Rule 240 exempts the defaulting defendants from final judgment until suit d. The defendant is not liable for has been disposed as to all defendants. Rio Bravo damages under this section for injuries Oil Co. v. Hunt Petroleum Corp., 439 S.W.2d or for the value of the use and 853, 861 (Tex. Civ. App. - Tyler 1969), ref’d on occupation more than two years before other grounds, 455 S.W.2d 722 (1970). the date the action was filed, and the Where the defendant has been cited only by defendant is not liable for damages or publication, the plaintiff must introduce sufficient for the value of the use and occupation evidence to show a prima facie right of recovery. in excess of the value of the TEX. R. CIV.P. 800. improvements. In boundary dispute litigation, a default judgment may be entered but it is recommended 2. Texas Property Code,§22.041 (Vernon 2001) that some evidence of the boundary location be Conversely, Texas Property Code, put on the record. §22.041(Vernon 2001) allows a defendant to request the right to remove permanent and K. Defendant's Answer valuable improvements to lands occupied by the 1. Plea of "Not Guilty" or General Denial defendant under a claim of adverse possession. If a boundary suit does not involve title, then The defendant must allege that he or she had and in that event, a general denial answer is adverse possession of the premises in controversy sufficient. The defendant may also answer without the intent to defraud and that he or she or admitting that he or she owns the property those under whom he or she claims made adjoining plaintiffs as alleged in the complaint but permanent and valuable improvements on the land that plaintiff's survey upon which he or she relies without the intent to defraud; the defendant must is erroneous. However, if the boundary dispute also identify the improvements and pray for also involves a claim of title, Texas Rule of Civil judgment allowing removal of the improvements Procedure, Rule 788. provides that the defendant upon giving of a good and sufficient surety bond. in such action may file only the plea of “not If at trial the defendant loses the right of guilty”, which shall state in substance that he is not possession and is found to have made permanent guilty of the injury complained of in the petition and valuable improvements on the land in good filed by the plaintiff against him or her. If the faith and without the intent to defraud, then the defendant claims an allowance for improvements, trier of fact must determine whether or not the he or she shall state the facts entitling him or her improvements can be removed without substantial to the same. While the rule clearly states that the and permanent damage to the land. If removal is formal pleading of "not guilty" is required, the possible, the court then fixes the amount of the courts of Texas have held that a general denial surety bond and appoints a referee to supervise serves the same function and places the burden on

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the plaintiff to prove title in himself. Cox v. conducted according to the rules of pleading, Olivard, 482 S.W.2d 682 (Tex. Civ. App. - Dallas practice and evidence in other cases in the district 1972, writ ref'd n.r.e.); Brinkley v. Brinkley, 381 court and conformable to the principles of trial by S.W.2d 725, 727 (Tex. Civ. App. - Houston 1974, ejectment, except as otherwise provided by the no writ). Of note, these procedures of filing a rules. TEX. R. CIV.P. 795. Title issues are general denial were approved by the Texas subject to the same rules regarding authenticity, Supreme Court in Harlan’s Heirs v. Haynie, 9 admissibility, and ancient documents as apply to Tex. 459 (1853), only nine years of passage of the other civil actions. plea of not guilty in a trespass try title suit was first provided for by the Congress of the Republic a. Presumptions and Burden of Proof of Texas in 1844. Gammel’s Laws of Texas, Vol. In a trespass to try title suit, possession of 2., pp. 68, 70, Brinkley at 727 land raises a presumption of ownership in fee simple in the name of the possessor and is prima 2. Issues Raised facie evidence thereof. Permian Oil Co. v. Texas Rule of Civil Procedure 789 states that Smith, 129 Tex. 413, 107 S.W.2d 564, 570 (1937); under such plea of not guilty, the defendant may Watkins v. Mith, 91 Tex. 589, 45 S.W. 560, 562 give in evidence any lawful defense to the action (1898). The presumption is rebuttable. Lund v. except the defense of limitations, which shall be Doyno, 127 Tex. 19, 91 S.W.2d 315, 316 (1936). specially pled. By entering this plea, the defendant In a trespass to try title, it is the claimant's burden is entitled to prove any legal or equitable defense, to prove good title in himself or herself to defeat except limitations. Briggs v. Freeway Park the presumption. If he or she fails to do so, the Development Co., 366 S.W.2d 270, 271 (Tex. possessor is entitled to judgment against the Civ. App. - Fort Worth 1963, writ ref'd n.r.e.). claimant, divesting claimant of whatever claim he The plea of "not guilty" in a trespass to try title suit or she had. Plaintiff may prevail by claiming and raises no issue of fact at a summary judgment proving possession prior to defendant's possession, hearing. Snider v. Foremost Lumber Co., 448 thus shifting the burden of going forward with S.W.2d 130,135 (Tex. Civ. App. - Tyler 1969, no evidence to the defendant. Fields & Co. v. writ). “As we understand the requirements of Allison, 171 S.W. 274, 277 (Tex. Civ. App. - San Rule 166-A,...the existence of issuable facts must Antonio 1914, no writ). This does not shift the be shown by competent summary judgment burden of proof, which remains on the plaintiff. evidence. Snider at 135. In a motion for summary Plaintiff must recover, if at all, on the strength of judgment hearing, the defendant should present his own title and may not simply rely on the affidavits or other competent summary judgment weakness of another party’s claims. Omohundro evidence to defeat the motion, rather than simply v. Jackson, 36 S.W. 3d 677, 680 (Tex. App. – El relying on his answer. Paso 2001 no pet.) Defendant may prevail over the doctrine of prior possession only by showing 3. Admission of Possession no title in plaintiff. Stringfellow v. Brown, 326 The plea of not guilty relieves the plaintiff of S.W.2d 1, 3(Tex. Civ. App. - Fort Worth 1959, no having to prove a trespass since the plea writ). constitutes an admission by defendant that he is in In a boundary suit, the plaintiff bears the possession of or claims title to the realty in dispute. burden of proving his or her claim just as in any Brohlin v. McMinn, 161 Tex. 319, 341 S.W.2d other civil proceeding, to-wit: he or she must 420, 422 (1960). prove, by a preponderance of the evidence the location of the boundaries alleged on the ground. L. Trial Plata v. Guzman, 571 S.W.2d 408, 412 (Tex. Civ. 1. Applicable Rules App. - Corpus Christi 1979, writ ref’d n.r.e.). On Again no mystique, the trial, whether a pure the other hand, the burden of proving the defense boundary dispute or trespass to try title, shall be that the parties had entered into an agreement

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fixing the boundary rests with the defendant. as to whether or not the boundary call is a Marathon Oil Company v. Gulf Oil Corp., 130 meander line or a boundary line, Ulbricht v. S.W.2d 365, 377 (Tex. Civ. App. - El Paso 1939, Freidsam, 325 S.W.2d at 672; State v. Brazos modified), 152 S.W.2d 711 (Tex. 1939). While a River Harbor Navigation District, 831 S.W.2d defendant may prevail over the doctrine of prior 539 (Tex. App. - Corpus Christi, 1992, writ possession in a trespass to try title suit, the same denied), as are the matters considered in is not true in a boundary dispute not involving title determining the location of a boundary, Jobe v. but merely location of the boundary. There are no Osborne, 68 S.W.2d 375, 378 (Tex. Civ. App. - presumptions in a boundary suit except as to the Texarkana 1933, ref’d on other grounds), 97 survey. The surveyor is presumed to have S.W.2d 939 (Tex. 1934). The relative importance performed his official duty and surveyed all the of conflicting locative calls is a question of law lines he called for to the corners and marked the absent any evidence of the footsteps of the boundaries according to the field notes as certified original surveyor preparing the field notes, or any to by him or her. Kirby Lumber Corp. v. evidence, as to where he or she actually on the Lindsey, 455 S.W.2d 733, 739 (Tex. 1970); ground surveyed the line. Walker v. Bailey, 69 Knupp v. Millen, 858 S.W.2d 945 (Tex. App. - S.W.2d 780, 782 (Tex. Civ. App. - Texarkana Beaumont 1993, writ denied). A surveyor’s work 1934, no writ). The interpretation of Land Office is presumed to be truthful and accurate. Lamb v. records in determining the true boundary is a Bonds & Dillard Drilling Corp., 107 S.W.2d question of law. Humble Oil & Refining 500, 503 (Tex. Civ. App. - El Paso 1935, no writ); Company v. State, 162 S.W.2d 119, 128 (Tex. Franklin v. Texas Saving & Real Estate Civ. App. - Austin 1942, writ ref'd). Investment Association, 119 S.W. 1166, 1168 On the other hand, if the facts are disputed, (Tex. Civ. App. - Houston 1909, no writ). the issue of where a boundary line is located is a Remember in a pure boundary dispute case, the question of fact for jury determination. plaintiff need not prove superior title but only Finkelstein v. Carpenter, 795 S.W.2d at 899. competent evidence of his or her interest in the (Tex. App. - Beaumont 1990, writ denied). The property. Brownlee v. Sexton, 703 S.W.2d 797 jury, as can readily be ascertained from the Jobe (Tex. App. - Dallas 1986, writ ref. n.r.e.). The case and the Walker case as well as multiple early Court will not enter judgment disturbing boundaries Texas cases, is charged with the responsibility to which have been recognized for years except on determine questions related to where a surveyor the most cogent and compelling evidence. Strong intended to place a line of survey, if in fact the v. Delhi-Taylor Oil Corp., 405 S.W.2d 351, 375 intended lines were actually run on the ground, and (Tex. Civ. App. - Corpus Christi 1966, writ ref’d if so, which lines were actually run. The jury will n.r.e.). The plaintiff must present competent also determine questions of acquiescence or evidence by which the line can be exactly recognition of a boundary at a certain place as ascertained and defined. Prince v. Flukinger, alleged by a plaintiff where such is disputed. 381 S.W.2d 75, 77-78 (Tex. Civ. App. - Humble Oil & Refining Company v. Patton, 344 Texarkana 1964, no writ); Brown v. Eubank, 378 S.W.2d 234, 239 (Tex. Civ. App. - Texarkana S.W.2d 707, 713 (Tex. Civ. App. - Tyler 1964, 1961, writ ref'd, n.r.e.); Duval County Ranch writ ref’d n.r.e.); Rubiolo v. Lytle, 370 S.W.2d Company v. Foster, 318 S.W.2d at 30. 202, 205 (Tex. Civ. App. - San Antonio 1964, writ ref. n.r.e.). c. Instructions The charge should be framed so as to allow b. Questions of Law and Fact a jury to follow the footsteps of the surveyor, and As with any other litigation, the practitioner to construct lines where he or she left footsteps. will be faced with questions of law and questions of fact. Where the facts are undisputed as to the M. Judgment location of a boundary line, it is a question of law A judgment entered in a boundary case must

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establish the boundary line by natural or artificial STAT. ANN. art. 5421c, now TEX. NAT. RES. monuments or in some other way, so that the CODE ANN.§§51.171 through 51.202 authorizes boundary lines can be identified on the ground. If and governs the location, sale and lease of vacant the judgment does not fix the location on the and unsurveyed public school land. For ground of the disputed common boundary, it fails convenience, it will be hereinafter referred to as to dispose of the controversy between the parties the "Act" and all cited sections are to the Act. and is fatally defective. Higginboham v. Davis, As stated, the Act authorizes the location, 35 S.W. 3d 194, 198 (Tex. App. – Waco 2000, sale and lease of vacant and unsurveyed public pet. denied) If a judgment fails to do so it is void. school lands with certain specified exceptions, to- Plata v. Guzman, 571 S.W.2d at 408; Hill v. wit: submerged lands within tidewater limits; all Walker, 140 S.W. 1159, 1162 (Tex. Civ. App. - islands, flats, and emergent lands within tidewater Austin 1911, writ ref'd). A trial court cannot have limits; natural lakes; and riverbed, including the boundary line marked and monument in a case channels and islands in riverbed, above tidewater involving counties before entering final judgment. limits. The Act does not alter or diminish the public In Re Tarrant County, 16 S.W. 3d at 918; See domain status of the surface estate of riverbeds also TEX. LOC. GOV. CODE ANN. §72.009 and channels and islands in riverbed, that are (Vernon 1999). located above the tidewater limits. §51.171(b). Simply stated, the verdict and judgment In Butler v. Sadler, 399 S.W.2d 411 (Tex. should definitely fix and establish the location of Civ. App.-Corpus Christi 1966, writ ref’d n.r.e.), the line in dispute. It should reference known the Corpus Christi Appeals Court had an objects, the identity and locality of which are not opportunity to construe the Act as related to the disputed. A competent surveyor should be able to sale of submerged lands. Appellants had filed suit find the line on the ground by the description set in the district court of Cameron County, Texas, out in the judgment. Lastly, the judgment should alleging existence in that county of vacant, always conform to the pleadings, proof and unsurveyed public school lands as described in verdict, it should not contain a materially different their pleadings. The proceeding in the district court description of the boundary. Whitmore v. filed by the appellants was an appeal from the McNally, 39 S.W.2d 633, 635 (Tex. Civ. App. - order of the Texas Land Commissioner who had Amarillo 1931, no writ). determined that 'no vacancy' could possibly exist on the lands in question. Appellants' suit alleged VIII. VACANCIES that they were entitled to establish the existence of A. Creation vacant unsurveyed public school lands and their Vacancies are created as a result of preferential right to purchase or lease such lands unsurveyed public lands. Most vacancies were by virtue of the Act. Appellees, defendant in the created early on in the Republic of Texas' history. trial court, filed motions for summary judgment Vacancies are held by the State of Texas in trust supported by affidavits, exhibits and depositions for the benefit of the Public School Fund. Simply contending that as a matter of law no vacancy stated, for a tract of land to be vacant it must be could exist in the area covered by the appellants' unsurveyed public land and it must not be in application. Appellants also filed a motion for conflict on the ground with lands previously titled, summary judgment, along with controverting awarded or sold. Atlantic Refining Co. v. Neal, affidavits and other exhibits. The trial court 443 S.W.2d 35,(Tex. 1968);Strong v. Sunray DX granted summary judgment in favor of the Oil Company, 448 S.W.2d at 743; See also TEX. defendants and denied the motion for summary NAT. RES. CODE ANN. §51.172(6) (Vemon judgment filed by the plaintiffs. Plaintiffs appealed. 2001). Appellants' application and petition alleged that there existed as a possibility vacant unsurveyed B. The Vacancy Act public school land which they describe as mud The Vacancy Act, former TEX. REV. C.V. flats. Appellants contended that this is new land,

18 Boundary Disputes and Vacancies Chapter 2 formed between the shoreline of Laguna Madre Justice Nye then quoted from the appellants' brief: as it existed in 1829, and the shoreline as it exists today along the east side of the Buena Vista 'Let us go straight to the heart of the Grant. Appellants had described the land in their matter. Our case depends upon petition as follows: acceptance of the thesis that submerged lands are in a special category, not One the West by the Potrero de Buena subject to the Vacancy Act (Art. 5421c) Vista Grant 1-465, originally granted to and entirely separate and distinct from Manuel de la Garza Sosa by the State of lands which are **** we assert that Tamaulipas, Republic of Mexico; on the areas which at some earlier time might South and East by the Potrero Santa de have been submerged become subject to Isabel grant and Laguna Madre; on the purchase or lease under the vacancy North by Laguna Madre, and on the statute if they later lose their character East by Laguna Madre, it being intended as submerged lands ***’Butler at 414. by said application to include all of the unsurveyed public school land lying Before briefing the legal history of the State's between said Potrero de Buena Vista ownership of waters and submerged lands within Grant and Laguna Madre. Butler at the tidewater limits of the Gulf of Mexico, Justice 413. Nye described appellants’ contention:

The appeals court in describing the location of the Appellants contend in effect that there area in question stated: is a new category of land which had come into existence in the area The Potrero de Buena Vista Grant and bounded by their description. Whereas, the Potrero Santa de Isabel Grant, are a formerly all of the land was either titled part of the mainland of Texas. The east land or submerged land belonging to the side of the grants front on the Laguna State, there is now an intervening area Madre. These two grants extend of unsubmerged land subject to the generally along the west side of the provisions of the vacancy statute. Laguna Madre from the Arroyo Appellants argue that this land is not Colorado on the north to a point near, listed in any way in the records of the but some distance from the Rio Grande General Land Office as fast land. River on the south. The Laguna Madre is a continuous body of water running The appellants likened the land which from Corpus Christi Bay on the north to they contend exists as unsubmerged the Brazos-Santiago Pass on the south land as those lands described in the and connects with the Gulf of Mexico case of Luttes v. State, 159 Tex. 500, on both ends. On the east side of the 324 S.W.2d 167, Sup.Ct. 1958. They Laguna Madre is a long strip of land contend that some of these mud flats in called Padre Island which runs almost this area may be accretion to the upland the entire length of the coast between and hence property of the upland Corpus Christi and Brownsville. This owners and some as accretion to the island separates the Gulf of Mexico on islands which are not subject to the east and the Laguna Madre on the purchase, but they contend that there is west. Butler at 413. a possibility that there is land which can neither be shown as accretion to the mainland or accretion to the islands in the lagoon, that is unsubmerged and

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unsurveyed and therefore subject to 419.[emphasis supplied, not that of the purchase by them as discoverers. Court] Butler at 414. In Rudder v. Ponder, 156 Tex. 125, 293 The court recognized that these submerged S.W. 2d at 736 the Texas Supreme Court had an lands have always been treated in a special opportunity to opine in a tidelands case. It was a category since the earliest days of the Republic, suit to establish a vacancy along the Gulf Coast citing State v. Delesdenier, 7 Tex.76 (1851) and that also involved a boundary dispute. Respondent then ensued on a eloquent recitation of the history Ponder claimed that the proper boundary of of the treatment of public lands and particularly privately owned land on the shore was the the areas along the Gulf of Mexico within the common law boundary of along the contour line of tidewater limits and reminding us that these lands 0.4 feet along sea land [mean high tide]. The are owned by the State and are held by it in trust State of Texas acting through its Land for the benefits of all its inhabitants. This opinion Commissioner claimed the true boundary line is a treatise on submerged lands and tidal bound- should be in accordance with Spanish and aries. It is highly recommenced reading for an Mexican law. This point was 1.1 feet alone sea attorney with issues involving submerged lands land [mean higher high tide]. The difference and tidal boundaries. between the two elevations accounts for the vacancy. Simply stated, the contest was the As a lead in to the ultimate affirming of the trial proper and legal location of seaward boundary of court's judgment, Justice Nye stated: private property. Rudder at 737. Trial was before a jury and judgment rendered establishing We take special note at this point in our a vacancy as to land claimed by Respondent decision, to this declaration of the policy Ponder only. The trial court had ruled that the of our legislative branch of government common law rule as to the location of the concerning state-owned lands. Article shoreline [0.4 feet] was the correct location. The 5421c, Sec. 6 does not specifically Court of Civil Appeals affirmed. Rudder made authorize the sale or lease of the application for writ of error. Rudder stated that lands rising out of or a part of the question before the court concerned the proper arms of the bays and seas within the location of the coast boundaries of the William tidewater limits of the State of Texas Steele Survey No. 2 in Aransas County. A related to a 'discoverer' under the Vacancy question, and the question upon which the Texas Act. Not only is there a lesser amount Supreme Court’s decision was founded, was of royalty to be realized by the State for whether or not the common law or civil law should the sale of public school lands under the be applied in determining the boundaries. Justice Vacancy Act, than if such lands were Griffin, speaking for the court opined that the leased in accordance with the other pertinent facts had been well stated by the Court existing laws, but it has always been the of Civil appeals, and then quoted that court’s declared policy of the Legislature and opinion: the courts of this State to hold such public lands in trust for the benefit of all After Texas became a Republic, of the people of this State. Without but before it generally adopted clear language authorizing the sale or the common law, Henry Smith, a leasing of possible vacant lands in the transferee of the William Steele tidewater limits of this State, we do not Land Warrant No. 840, dated believe that the Legislature intended December 8, 1837, caused John that such lands be awarded to anyone Talley, the Deputy Surveyor for under the act in question. Butler at Refugio County, to survey what

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is described in the field notes as common law. The State [156 '1280 acres of land' which TEX 188] claims that as soon as fronted on the bay. Henry Smith, the certificate was located and also a transferee of the Van the field notes prepared and Benthuysen Land Warrant No. certified as correct by the 1188, dated December 20, 1837, surveyor of Refugio County, the caused the same surveyor to grantee in the certificates survey '640 acres of land' became the holder of a vested adjoining the other tract. The right of which he could not be surveys were made and the field deprived later by the adoption of notes prepared with plats the common law; therefore, the attached, and the surveyor, in civil law applies. The respondents accord with the law then in contend that up to the time of the effect, made his affidavits that issuance of the patent, the the plat, field notes and the grantee had only an incomplete, survey were made since the first inchoate and equitable right in so day of August, 1838. These far as the Republic was affidavits were dated and signed concerned; that the patent having by the deputy surveyor on issued after the adoption of the September 23, 1839, and on the common law that law should same date were certified as govern. correct by the Refugio County Surveyor. The trial court found as We hold with the contention of a fact, based upon presumptions, respondents and thus affirm the that the field notes on the two judgment of the Court of Civil surveys were not filed in the Appeals. General Land Office until after January 20, 1840, when the An excellent historical discussion follows on Republic generally adopted the the effect of the Republic of Texas adoption of the common law. The patents were common law and the effect, if any, of civil law on issued by Mirabeau B. Lamar seaward boundaries. More importantly, the Texas during April of 1841. Supreme Court addresses the history of litigation requiring the President of the Republic to cause Justice Griffin went on to say: the vacant lands of the Republic to be surveyed and sectorized into tracts of 640 acres and 340 From the above statement of acres and implemented the issuance of patents in facts it will be seen that the land the name of the Republic of Texas and under the certificates upon which the seal of the Land office. Until a patent is issued, patents were later issued were the owner of a surveyor’s certificate for land or dated in December, 1837. This who had located the certificate on the was while Texas was a republic unappropriated public domain, as against the and prior to the Act of January Republic had ones as imperfect or inchoate right 20, 1840, when the Republic to received the such land, an equitable right valid adopted the common law as the against third parties. rule of decision. However, it will be noticed that the patents were C. Procedures under the Act not issued until April, 1841, this The Act set out definite procedures for the being after the adoption of the purchase or lease of land found to be vacant in

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§51.173. Specifically, in order to commence a until the 30th day after publication is completed. proceeding under the Act an individual must file an Under §51.180, an interested party may waive application with the county surveyor or county notice by filing a sworn affidavit with the clerk if there be no county surveyor in the county commissioner. in which all or a part of the land claimed to be Pursuant to §51.181, a surveyor is required vacant is located. The application must describe to prepare and file in the land office a detailed the land; state whether the applicant is a good written report of all aspects of the survey including faith claimant, as defined in §51.172; state the record research conducted, survey comers name and last know address of all interested recovered and details of boundary construction parties; and provide any other information the using recovered comers. Additionally the surveyor commissioner requires by rule. Priority amongst must file proper field notes describing the land, the competing applications is determined by the date lines and the comers surveyed along with a plat and hour marked on the application by the county depicting in detail the survey results. The surveyor surveyor or county clerk. must also note the names and addresses of all Not later than the 10th day after filing the person in possession of the land or a part of the application with the county surveyor or county land along with a description of the lands clerk, a copy of the application must be filed with occupied. The surveyor's report must be filed not the commissioner and a fee paid. Failure to file later than the 140th day after the date of the waives all rights under the application. The notice to interested parties or 170th day after commissioner may reluse to accept the filing if the notice by publication is completed. Interested application has material omissions, does not parties or occupants of the land at issue may file adequately describe the land or describe land that exceptions to the surveyor report, the has finally been adjudicate in a court of this state commissioner may require additional or of the United States not to be vacant. surveys.§§51.183 and 51.184. The commissioner must appoint a licensed Not later than the 90th day after the surveyor state land surveyor or the county surveyor of the report is filed, the commissioner shall either deny county in which the land is located. The fees and the application or determine whether a vacancy expense of the survey are negotiated by the exists, but the commissioner must hold a hearing in commissioner, but paid by applicant. Not later than order to determine that a vacancy exist. §51.185. the 10th day after the surveyor is appointed, the If the commissioner denies the application, the commissioner shall give notice by certified mail, applicant, after receiving notice, may request a return receipt requested to all interested parties rehearing and appeal the commissioner's order as letting them know that an application has been provided by Chapter 2001, Government Code made, a surveyor [to include name, address and (Vernon 2000 and Supplement 2001) and by rules telephone number] has been appointed to make adopted by the commissioner consistent with the the survey, that the survey may begin at any time Act, and unless a rehearing is requested, the order after the 20th day after the date of the notice. denying the application becomes final on the 30th Additionally the notice will advise the interested day after the date it is signed.§51.186. A final party that he or she is entitled to observe the order of the commissioner under the Act is conduct of the survey, receive a copy of the conclusive with respect to the land described n the survey and surveyor's report and participate in the applicatio or the final order except that a decision vacancy proceeding. A true and legible copy of of the commissioner issued before 1 September the application is to be provided to each interested 1993 deny a vacancy application or letter of party along with other information the inquiry is not conclusive as to the existence or non commissioner by rule may prescribe. If a notice is existence of vacancies. §51.187. Appeal of a final returned unclaimed or undeliverable or the location order is to a district court of the county in which of an interested party is unknown, notice must be the land is located. The district court shall review made by publication and the survey may not begin

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the commissioner's order under the substantial disqualified the first person named to the panel by evidence rule.§51.188 the other party. The decision of the panel is not The Act also provides the commissioner the subject to judicial review and the cost is shared authority to determine the boundaries and size of equally.§51.194. a vacancy that best describes the vacancy and is Under §51.195, the board shall, in all sales, consistent with the information available under the reserve to the permanent school fund all oil, gas, Act. Additionally, if the commissioner in sulphur, and other minerals and geothermal determining the boundaries and size of a vacancy resources and shall determine the manner in finds additional person that were not named which those minerals and geothermal resources interested persons and should have been noticed are to be lease. This section also provides who may be affected by the finding that a guidelines for leasing rights and the award of vacancy exists, then the proceeding shall be royalty participation. reopened and those persons joined and given an opportunity to be heard. Neither a new application D. Res Judicata and the Vacancy Act or a new survey is required.§5 1.190 Lastly, a comment on vacancies would not be When a vacancy has been established, the complete without mention of two other cases out school land board may sell or lease the vacancy. of the Corpus Christi Appeal Court, namely The board sets the sale price and other terms and Strong v. Sunray DX Oil Company 448 S.W. 2d conditions just as in other lands dedicated to the at 728 (herein for convenience “Sunray I”) and permanent school fund. The land office will State v. Sunray Dx Oil Company 503 S.W. 2d at appraise the vacancy to determine the fair market 803 (herein for convenience “Sunray II”) and the value and the price set must not be lower that the issue of res judicata.. fair market value. Credit against the sale price In Sunray I, the Corpus Christi Court of may be given, not to exceed the actual cost of the Appeals struggled with the disposition of an appeal survey paid by the applicant or good faith claimant by the Plaintiff, Guerry Strong, from the trial if purchaser is a person with a preferential right to court’s directed verdict of no vacancy existing on purchase, the board has reserved all mineral and defendants land [actually there were multiple oil geothermal leasing right and the board finds that and gas companies who were defendants]. In the fair market value of the mineral estate equals summary, and obviously after much discussion or exceeds 50 percent of the amount of the amongst the members of the Court, the original credit.§51.193. dissenting opinion was withdrawn and a new The issue of fair market value may be opinion sustaining appellees’ motion for rehearing submitted to a mutually agreed upon trained and affirming the judgment of the trial court was mediator if the price set by the board exceeds the substituted therefore as the majority opinion of the appraised value by 15 percent and the appraisal Court. was made not more than six months before the The trial court had entered a directed verdict date on which the board set the price. If the price of no vacancy existing on defendants’ lands. The is not settled through mediation on or before the paramount issue before the Court involved the 60th day after the first mediation session, the correctness of the directed verdict. Therefore, purchaser may, upon written request to the consideration from the viewpoint most favorable to commissioner, have the issue submitted to binding appellant of all the evidence of probative value arbitration. This arbitration will be conducted by a was mandated. The Court opined that the panel of three real estate appraisers certified in “conclusions reached in this opinion are drawn Texas under the rules of the American Arbitration from a careful consideration of all evidence, Association or other rules as agreed. The board admitted or excluded, which was reviewed and and the purchaser shall each select an appraiser, discussed in the various briefs of all the parties.” which appraisers will in turn select the third Sunray I at 731. The lands at issue were two appraiser. Either party may object to and have tracts of lands described by metes and bounds as

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the alleged vacant land in appellant’s petition. The The Court noted that “the contract provisions ‘A’ Vacancy consisting of the upper of northern of this colony are so well known that they are a area of 4353.5 acres of land located by appellant matter of judicial knowledge and cited Sayles as between the Traviesa Grant and the Varin Early Laws, Vol. 1, Art. 108; Harris v. Grant. The lower of southern area of 2618.34 O’Connor, 185 S.W. 2d 993 (Tex. Civ. App. – El acres called the ‘B’ Vacancy located primarily Paso 1944, w.o.m.); Hatch v. Dunn, 11 Tex. within the original Traviesa Grant. An area of 708.” Id at 733. Justice Nye then embarked on 460.45 acres designated as the ‘C’ Vacancy another of his scholarly recitations on the history alleged to be entirely embraced within the ‘A’ of grants in the early days of Mexican rule going Vacancy but consisting of an overlap of the ‘A’ as far back as 1824. He noted the imperfections and ‘B’ vacancies. Each was depicted on a Plat. in surveying techniques in those days and the fact Appellant also claimed an alternate ‘A’ Vacancy that when father and son owned four leagues of 1855.3 acres which was included within the [some 18,000 acres rounded] it made little area designated as the ‘A’ Vacancy. difference if there was a minor error. The Court at one point likened the land as issue as the typical In the words of Justice Nye: everyday farm subdivision when it said:

The vacant land was claimed to exist The entire system of 18 tracts is between the boundaries of a series of likened in some respects to the grants which began at the confluence ordinary everyday farm of the Guadalupe River and the San subdivision of 18 lots in one block Antonio River (sometimes referred to in all fronting on a river. There the old ancient documents as the were basically few natural “Bexar River” or “La Bahia River”), landmarks. The grants (lots) and extending northwesterly along the were described with a number of Guadalupe River and Coleto Creek by the original settlers’ name about eighteen miles toward Goliad. rather than by metes and bounds. The Court noted the importance of a The tracts of land followed a historical review of the manner in similar pattern to that of the which these grants of land originated porciones along the Rio Grande and its obligation to attempt to retrace River which were likewise the steps of the original surveyors and granted by the Mexican determine, if possible, the intent of the Government. They were grantor, as required by the rules for the designed to front on the river so construction of grants. Recognizing as to give each owner some that once the intention of the grantor is valuable water frontage. The definitely ascertained, all else must yield frontage was narrow as citing Phillips Petroleum Company v. compared to its length, as it State, 63 S.W. 2d 737 (Tex. Civ. App. extended back from the river. – Austin 1933 , writ ref’d.) Sunray I The early courses were not at 733. governed by the exactitudes of degrees and minutes but each The basic documents concerned course was dependent upon the primarily the old Mexican grants within other with parallel lines. Usually the colony extended by the the first lateral line determined Commissioner Vidaurri. Id at 733 the course for all surveys in the system. This is the situation here. Sunray I at 734.

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Appellees contended that each and every one of enough to tie it together, it did so by the adjoinder the 18 grants were tied together by adjoinder calls call to be bounded on the southwest by the Dona and by the respective directions away from the Josepha Traviesa tract. It went on to recite other Guadalupe River and the Coleto Creek as indicators that no vacancy existed blaming some evidenced by the original adjudication of titles. The inconsistencies in distance on the crookedness of Court noted that if appellees contention was true, the Guadalupe River. it was decisive of the lawsuit as it determines the Appellant contended that the calls for course intent of the parties to the colonization of these [along the river] and distance (number of varas) grants and leaves no vacant land in between. The down the river should prevail over these exact Court agreed with appellees. distance parallel adjoining calls away from the The Court then explained how the undisputed river and the naming of the adjacent grants as evidence support appellees contention. It adjoining calls. The Court did not accept his examined plats of the original survey, the process contention stating: of applications for title, the grants, the fallacies in appellants’ interpretation of the surveys and finally ...the general rule has always been in the Colonization Law of March 24, 1825, which is this state that calls for adjoinder will quoted in appropriate part at page 745 of the ordinarily prevail over calls for distance. opinion. (See C. M. Frost et al. v. Socony Of interest is the fact that the Court noted Mobil Oil Company, Inc., et al., 433 that some of the applications for grant made S.W.2d 387 (Tex.Sup.1968), for a reference to a named neighbor as an adjoining call, discussion of the rules). This is said to a crude but meaningful way to describe be true even where the call for the boundaries in those times. In several pages of adjoinder is an unmarked but very detailed analysis as to why the evidence did ascertainable line of an adjacent not support appellant’s contention, the Court survey.” Sunray I at 736. pointed out that “...even if there were a mistake in the adjoinder calls, appellant himself had failed to The chart below is an example of some evidence demonstrated what otherwise was the intent of the analyzed by the Court in its study of the history of parties (grantor-grantees). He simply did not trace grants. the footsteps of the original surveyor.” Sunray I at 742. The Court in setting out the attempt to All dates in the order below were reconstruct the footsteps of the surveyors and to between September 17, 1834 and determine the intent of the original parties to the November 30,1834. grants, noted that one only had to follow the calls Order of Order of Order of of each grant and no other conclusion was Name and Order of Reference to Approval of Adjudication apparent except that the Traviesa Grant was not Tract Number Application Empresarios Empresarios of Title ------to be bounded by vacant lands but was to be 18 DALY 14 14 14 17 bounded by some citizen colonist whose name was ------17 BARTLETT 12 13 13 16 not remembered or unknown at the moment, or ------16 TOWNSEND 13 12 12 15 whose name was to be filled in the blank space at ------15 RENE 10 10 4 10 a later time. The Court discussed the history of ------the Traviesa Grant from application to the granting 14 REYNOLDS 18 18 18 18 ------of title a month later and stated that it was 13 COBARRUBIAS 17 17 17 9 ------apparent that the citizen’s name was Vairin, noting 12 GALLARDO 8 8 9 14 that the called distance of the Vairin Grant on the ------11 HIDALGO 7 7 8 3 southeast to the river was 8790 varas, the absolute ------10 GALBAN 6 6 2 13 number of varas called for to the River Guadalupe ------9 McDONOUGH 11 11 10 7 by Traviesa on her upper boundary. If this wasn't ------

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8 GONZALES 3 3 7 6 boundaries of these Mexican grants ------7 RODRIGUEZ 2 2 6 5 they are resolved by the act of juridical ------6 NIRA 1 1 5 4 possession. State v. Balli, 144 Tex. 195, ------5 RAMON 9 9 11 8 190 S.W.2d 71 (Tex.Sup.1944). ------Juridical possession is shown by the 4 FERNET 16 16 16 12 ------evidence of the grants themselves. 3 VAIRIN 15 15 15 11 ------Sunray I at 746 2 TRAVIESO 5 5 1 2 ------1 VALDES 4 4 3 1 Here the lands in question were titled ------and the grants have not been cancelled The confluence of San Antonio and or annulled. The long, continued Guadalupe Rivers.*The order was undisturbed and uncontested occupancy actually the same as its *'d neighbor as of one hundred thirty five years both grants were contained in same beginning with juridical possession and application and title.” the adjoinder calls on either side, precludes the existence of any vacancy A close study of the applications for title as defined by Article 5421c, V.A.C.S. shows that some of the grantees made application Sunray I at 747. for their tract of land and made reference to a named neighbor as an adjoining call, even before In boundary, excess or vacancy suits that neighbor had made his application or received involving old grants and old surveys, title. Sunray at 743 where no living witness can testify as to original conditions and facts, the courts Summarizing by quote in appropriate part, wherever there is specific, definite according to the Court: evidence of facts existing as of the date of the grant or survey, as opposed to Appellant's proposed vacancy fails for general, indefinite or descriptive another reason. It is located by the evidence, decide such cases usually as appellant within the external lines of a a matter of law rather than fact.' (citing system of contemporary surveys, and is authorities) Id at 748...For a tract of therefore in conflict on the ground with land to be vacant it must be unsurveyed lands previously titled. It is not subject public land and it must not be in conflict to appropriation under Article 5421c, on the ground with lands previously Vernon's Ann. Civ. St. Under the titled, awarded or sold. Atlantic undisputed evidence, the Traviesa and Refining Co. v. W. D. Noel, 443 S.W. Vairin Grants are within this system of 2d 35 (Tex.1968). Id at 748 18 surveys. Until the entire system is surveyed, no interior line can be Chief Justice Green concurred in the result, located. There can be no vacancy in but Justice Sharpe wrote a steaming dissent. He construing interior lines in a system of stated: surveys... [citations omitted]. Sunray I at 743.... I respectfully dissent. In my view, the Court correctly reversed the judgment A study of the various applications of the trial court and remanded the convinces us that the citizens of the cause for new trial on the original colony were placed in juridical disposition of the case. I would overrule possession of the various grants... If appellees' motion for rehearing. The there are doubts as to the extent of the original majority opinion of this Court

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was authored by this writer and I now judicata as to title; 2) the Attorney file it as a dissenting opinion. There are General has no statutory or no changes in substance but minor constitutional grounds to claim this land, changes in wording have been made in and in any event the State is bound by order to conform the prior majority the decision of the land commissioner of opinion to its present posture of a the General Land Office; and 3) the dissenting opinion. In my view, the State has lost its right to assert a present majority or concurring opinions forfeiture by its long delay and by do not fully state or discuss the placing an unreasonable burden on the contentions of the parties, particularly defendants which would deprive them those of appellant. Nor do such opinions of property without due process of law adequately refer to or discuss the in violation of the State and Federal evidence admitted or excluded over Constitutions. Sunray II at 833. objection. Many of the authorities relied on by appellant, which I believe strongly The State contended that since August L. support his position and that of the State Fernet and Joseph Vairin, the grantees of the two of Texas, are not mentioned in the other subject tracts, were never residents or citizens of opinions. the Republic of Mexico; the Commissioner of the Power and Hewitson Colony had no legal Then along came Sunray II. In this case the authority or power to issue title to the two leagues Corpus Christi Court of Appeals considered a suit of land to them; and therefore, the purported in the nature of a trespass to try title action grants to them were void ab initio and/or were brought by the State of Texas to recover lands for voidable. The Court held this contention was the benefit of the public free school fund. Two without merit, stating that the original validity of tracts of land were at issue, known as the Vairin the grants could not be impeached as they were tract and the Fernet tract located near the issued by competent authority. The Court went on confluence of the Guadalupe and San Antonio to say: Rivers in Victoria County, Texas. These should be familiar names to the reader. Remember Sunray ...the Supreme Court of Texas was I? These two tracts had been granted by faced with this same contention in an Commissioner Vidauri as part of the Hewitson and early case. The court [Supreme Court] Power Colony pursuant to the colonization of this said: particular area by Mexico in 1834. Defendants had filed answers of not guilty, general denial, res That the grantee possessed all the judicata, lack of jurisdiction, and various other requisite legal qualifications to entitle pleadings and exceptions. him to the grant, and that the grant itself Defendants filed their motion for summary concludes all after inquiry upon the judgment, which was granted State of Texas subject, has been repeatedly decided. appealed. This precise question was decided in Defendants had set out several theories as a the case of Johnson v. Smith, 21 Tex . basis for the granting of the summary judgment in 722, where it was held, that Evidence the trial court. Defendants theories were cannot be admitted to prove that the summarized under three basic categories: grantee had not brought his family to the country, and had not, in fact, 1) the prior decision of this Court in become domiciled here for the purpose Strong v. Sunray DX Oil Co., 448 of showing that he was not entitled to S.W.2d 728 (Tex. Civ. Ap.--Corpus the grant . . .; that the original validity of Christi 1969, writ ref'd n.r.e.) is res a grant, regularly issued by competent

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authority, cannot be thus impeached. the San Antonio and Guadalupe. Bowmer v. Hicks, 22 Tex. 155, 161 Sunray II at 824. (1858). Sunray II at 824. The Court then embarked on the same Varin and Fernet, at issue here, were reasoning set forth in Sunray I, stating in placed in juridical possession of their appropriate part: respective tracts. In his vacancy suit Strong claimed for As the court concluded: himself and the State of Texas all the right to the oil, gas and minerals The Fernet and Vairin tracts which the thereunder . He alleged that the land State seeks to recover are the same was vacant and unsurveyed and subject grants that were involved in the Strong to lease and sale by virtue of Article v. Sunray DX Oil Company suit, 5421c, Vernon's Ann. Civ. St. He supra. The State seeks to avoid the contended that he brought the suit 'for binding effect of the final judgment in the purpose of litigating and deciding Strong by showing that title to these boundary, Title, and ownership of the grants was not placed in issue, and was land'. The prayer to his petition asks not a part of the prior lawsuit because that the trial court adjudicate and an order for separate trial was entered decree that all the land (including the by the trial court. The defendants take Fernet and Vairin grants) was vacant, the position that even if title to the unsurveyed school land belonging to the Fernet and Vairin grants was not in school fund and that he be awarded All issue in the Strong case, the State was of the right, title, and interest to said required to assert and have adjudicated land as he may be entitled. The State of all of its existing claims to such grants. Texas intervened in the Strong case and Having let the case go to final judgment asked that the facts be decided, and if without doing so, it is barred. We agree. they showed vacancies existing, the The Supreme Court said in Ogletree v. public free school fund was entitled to Crates, 363 S.W.2d 431, 435 recover them. Sunray II at 825. (Tex.Sup.1963), “The rule of res judicata in Texas bars litigation of all Important to note is the Court’s comment: issues connected with a cause of action or defense which, with the use of The pleading of the vacancy claimant, diligence, might have been tried in a as well as that of the State of Texas, former trial, as well as those which placed the questions of title, boundary, were actually tried.” ownership, and vacancy in issue. The purpose of the vacancy suit was to The particular land involved is shown by claim the lands for the State of Texas a map attached to Strong's original and the public free school fund. The petition. It was reproduced in the individual claimant who sought to prove opinion in the Strong case on pages 752 the vacancy was given statutory priority and 753 (448 S.W.2d 728). This Court to purchase the lands back from the held, among other things, that there was State, if successful. As a result, the no vacancy in the are of the Fernet and state must intervene in such suits under Vairin tracts because a system of Art. 5421c. It is in the nature of a surveys beginning at the confluence of compulsory counterclaim under Rule 97(a), T.R.C.P. Article 5421c, Sec. 6(j)

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reads in part: “When such litigation shall have been prosecuted to a final “Any person, firm, or corporation judgment, said judgment shall be binding aggrieved by any action taken by the upon the State of Texas. It shall be Commissioner under the provisions of mandatory for the Attorney General to this Act, or with reference to any intervene in behalf of the State in such application to purchase or lease cases.” Sunray II at 825. vacancies, May institute suit in the District Court . . . and there try the The Court then embarked on the distinction issues of boundary, title, and ownership between separate trial and a severance: of any alleged vacancy involved, as well as the issues of the preference rights. . The defendants filed a motion for a . .” separate trial under Rule 174(b), T.R.C.P., contending that there should The State of Texas contends that its be a separate trial of the issues relating intervention was passive only. to whether or not there are vacant lands as alleged in Strong's petition, including We hold this contention is totally the issue of boundaries with respect without merit. The statute as previously thereto, from a trial of the issues quoted makes the intervention relating to whether or not some of the mandatory and any decision by the defendant are good faith claimants, courts are binding against the State. whether or not improvements have The purpose of having the attorney been made in good faith, and the issues general intervene is to protect the relating to the ownership of the State's interest and not to 'observe' the production of oil and gas. The Court vacancy claimant. [citation omitted] granted the motion and ordered that the Sunray II at 827. issues of the existence or non-existence of vacancies be separately tried and The order was entered under Rule determined, before the court tried any 174(b). This order did not amount to a other issues in the cause. Boundary severance as the State seems to argue was considered determinative of . There has always been some whether the vacancies existed or not. confusion between separate trials and The trial court ordered the other issues severance. The Supreme Court deferred. Trial on the boundary issue recognized this and tried to correct the proceeded and judgment was rendered confusion in Kansas University that Strong and the State of Texas take Endowment Assoc. v. King, 162 Tex. nothing since no vacancy existed. 599, 350 S.W.2d 11, 19 (1961)....

In response to the defendants’ major There was only one final judgment, contention of res judicata, the Court stated: which disposed of all issues and parties.

Although the original vacancy suit in In conclusion, the Court opined as follows: Strong [Sunray I] was not brought under the 'classic' pleadings known as It is our opinion that article 7391 of the trespass to try title, the statute (Art. Revised Civil Statutes of Texas is 5421c Sec. 6(j)) expressly considers the controlling of the situation herein issue of title within the scope of the involved. Such statute reads as follows: vacancy suit. The statute reads: “Any final judgment rendered in any

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action for the recovery of real estate The Court further stated: shall be conclusive as to the title or right of possession established in such action We hold that title was in issue in upon the party against whom it is “Strong,” the vacancy suit....To allow recovered, and upon all persons boundary, title original ownership and claiming from, through or under such vacancy to be tried in separate lawsuits party, by title arising after the would place an unfair burden upon the commencement of such action.” defendants. McKamey v. Aiken, 118 S.W.2d 482 (Tex. Civ. Ap.--San This statute merely enacts into law the Antonio 1938, writ dism'd). Article equitable rule that there should be an 5421c, V.A.C.S. does not contemplate end to all litigation. Sunray II at that the State of Texas can simply hang 828...The State cannot argue that title on to the coat tails of the vacancy was not a “vital issue.”...To hold claimant. It requires the State to otherwise would mean that a boundary prosecute its case actively on its own, determination between surveys would on pain of final judgment being entered be unimportant and have not effect. against it. McKenzie v. Frost, 448 Sunray II at 828 S.W.2d 520 (Tex. Civ. Ap.--El Paso 1969, writ ref'd n.r.e). See Rule 97, T.R.C.P. Sunray II at 829

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APPENDIX A 5. For judgment against defendant for the Sample Forms delivery of the strip of land;

The following are selected example forms from 6. For a determination by this court that the true Chapter 49, Texas Jurisprudence Pleading and location of the boundary line between Practice Forms which may be of interest to the plaintiff’s and defendant’s respective practitioner in a boundary case. It is not all properties is as described in this petition; inclusive, but merely a starting point. 7. For costs and disbursements of this suit; and §49:13. Petition – Trespass to try title – Boundary dispute [TEX. R. CIV.P 783 et 8. For other and further relief as this court may seq.] deem proper.

[Caption] [Signature, State Bar of Texas identification I. number, address, telephone number, and telecopier Plaintiff is the [sole number, if any, of at least one attorney of record, owner in fee or as the case may be] and is entitled verification, endorsement, see Pleading] to possession of a tract of land situated in the City of , County of , §49.14.Answer – Defense – Defendant’s Texas, described as follows: survey showing plaintiff’s boundary line . II. erroneous. Defendant is, and during all times mentioned in this petition was, the [sole owner [Caption] in fee] of the tract of land [south] of and adjacent to that of plaintiff and more Defendant admits that _he owns real particularly described as follows: property adjoining plaintiff’s as alleged in the complaint, but states that _he has had h property III. surveyed by [name and A dispute exists between plaintiff and address of surveyor] and that the survey revealed defendant concerning the true location of the that the boundary line purportedly separating boundary line between the above-described plaintiffs property from defendant’s prior to the premises, and there is confusion and uncertainty in survey was erroneous; that, in fact, the boundary that regard. line should be located feet IV. [north or as the case may be] of the line claimed Plaintiff believes the correct boundary line by plaintiff. dividing the properties to be as follows: [described line unambiguously by means §49.15.Order – Appointing surveyor [TEX. of objects on the ground, and if necessary, by R.CIV. P 796]. metes and bounds]. V. [Caption] Nevertheless, a boundary strip to the [north] of that line and running On [date], came on [describes perimeter of strip] is out of plaintiff’s to be heard [plaintiff’s possession and in the possession of defendant. or defendant’s] motion, filed in the above-entitled Since [date], defendant has unlawfully kept action on [date], for the plaintiff out of the possession of this strip. appointment of a surveyor in accordance with Rule 796 of the Rules of Civil Procedure; and Wherefore, plaintiff prays: Both parties having appeared by their

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attorneys, the court having heard testimony and §49.17.Judgment – Establishing boundary examined the record, the court having heard pursuant to survey – Recovery of possession argument of counsel, and it appearing to the court by plaintiff. that the motion should be granted, It is ordered that [Caption] [name and address of surveyor] be, and hereby is appointed to make an immediate survey and On [date], submit to the court, under oath, h findings as to came on to be heard the above-styled cause, and the true boundary line separating the properties. came the parties, personally and by their attorneys, It is further ordered that _he submit a and announced ready for trial. statement of h time spent in complying with this Neither party having demanded a jury, and order, and that compensation for h services be the court having examined the pleadings, heard the taxed as part of the costs of the suit at the rate of evidence, noted the arguments of counsel, and $ per day. studied the report of the surveyor appointed by the Dated . court to survey and determine the boundary in [Signature and title of judge] dispute. It is hereby ordered, adjudged, and decreed §49.16.General instruction – Conflict in calls that the true boundary between plaintiff’s and – Priority. defendant’s lands be located as follows: . You are instructed that when general and It is further ordered, adjudged, and decreed locative calls in a survey are conflicting and that plaintiff recovery from defendant the evidence as to the intention of the survey is possession of all that land on plaintiff’s side of the lacking, you will give controlling effect to natural true boundary. objects (including lines marked by the surveyor), All costs of this action shall be taxed against courses, distances, and acreage, in that order of defendant. priority. Signed and entered [date]. [Signature and title of judge]

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