Opinion
No. 99-0667.
Argued on March 22, 2000.
Opinion Delivered: December 21, 2000.
On Petitions for Review from the Court of Appeals for the Third District of Texas.
Today this Court is asked to locate a seashore boundary under two early nineteenth-century civil-law land grants. The parties in this dispute agree that the grants' eastern boundary is the edge or shoreline of the Laguna Madre, a body of water between the petitioners' property and Padre Island. But they disagree over where the boundary is and the methodology to determine its location. The petitioners contend that under Luttes v. State, 324 S.W.2d 167, 191 (Tex. 1958), the shoreline is at the line of mean higher high tide. The respondents, on the other hand, argue that Luttes does not apply because of the unique physical characteristics of the disputed area and for other reasons. Alternatively, the respondents argue that Luttes allows for the shoreline to be located at a line other than the mean higher high tide line.
Following a jury trial, the trial court rendered judgment for the respondents based on a split verdict. The court of appeals affirmed. 994 S.W.2d 285, 309. We conclude that the Luttes requirement that the shoreline be located at the mean higher high tide line as established by tide gauges cannot be applied here. Because of the disputed area's unique physical characteristics, the line of mean higher high tide cannot be calculated using National Oceanic and Atmospheric Administration ("NOAA") methodology. The petitioners' methodology would result in a boundary that at some points lies in the middle of the Laguna Madre and would include the western edge of the Intracoastal Waterway, which was dredged in the Laguna Madre. Because the respondents established that their boundary line marks the shoreline with reasonable accuracy, we affirm the judgment of the court of appeals.
NOAA is the federal agency responsible for gathering and analyzing tide data along the coast of the United States.
I. BACKGROUND
This boundary dispute between the State of Texas and the Commissioner of the General Land Office (collectively, "the State") and the John G. and Marie Stella Kenedy Memorial Foundation and the Corpus Christi Diocese of the Roman Catholic Church (collectively, "the Foundation") concerns the ownership of about 35,039 acres of coastal land along the shore of the Laguna Madre. See Appendix 1. The disputed area lies on the eastern boundary of two land grants in Kenedy County, Texas, called La Barreta ("Big Barreta") and Las Motas de la Barreta ("Little Barreta"). See Appendix 2. These two tracts lie south of Corpus Christi and are shielded from the Gulf of Mexico by Padre Island.
The King of Spain originally granted the Big Barreta to Jose Francisco Balli, the Foundation's predecessor-in-interest, in 1804. Balli selected the site, consisting of twenty-five sitios (110,000 acres), and surveyed it in 1809. Immediately following the survey, Balli petitioned for additional acreage, an island known as the Mesquite Rincon, consisting of four sitios that, while neighboring his tract, was separated by the waters of the Laguna Madre. See Appendix 2. The Mesquite Rincon is within the disputed area claimed by the Foundation. Although the original Spanish land grant was lost, it has been judicially determined that the King indeed issued the Big Barreta grant. State v. Spohn, 83 S.W. 1135, 1135 (Tex.Civ.App.-Austin 1904, writ ref'd). The State issued a patent in 1907 (the " Spohn patent") to confirm the Big Barreta grant, including the Mesquite Rincon. That patent states that the tract is "bounded on the east by the waters of the Laguna Madre." The metes and bounds description in the patent states that the tract's boundary is from "a post on the Laguna Madre for the northeast corner of this survey; thence with the meanders of said Laguna Madre" generally toward the south.
A sitio is 4,428 acres, or 5,000 varas square, or one square league.
The Republic of Mexico granted the Little Barreta to Leonardo Salinas, the Foundation's predecessor-in-interest, in 1834. Salinas requested "five sitios of grazing land for large stock." Domingo de la Fuente subsequently surveyed the land. When de la Fuente surveyed a rectangle enclosing five sitios, its southeast corner extended onto mud flats within the disputed area, beyond the margin (" orilla") of the Laguna Madre. De la Fuente described this corner as "where the Laguna Madre projects into the tract," and excluded it from the grant. Consequently, a triangle of land equal in size along the eastward extension of the north line of the survey was added to achieve the intended total of five sitios of pastureland. See Appendix 2. The original Little Barreta grant is in Spanish; translated, the grant provides that the land is "bounded on the east by the waters of the Laguna Madre." The original survey refers to the surveyor measuring to "the edge of the Laguna Madre."
The Laguna Madre, which lies between the Barreta tracts and Padre Island, is the largest of the Texas estuaries, extending in an arc 130 miles long and from three to five miles wide from Corpus Christi, southwest to the Rio Grande. See Tidal Characteristics and Datums of Laguna Madre, Texas, NOS OES 008, National Ocean Service 15 (1995). The Laguna Madre is relatively shallow and contains extensive shoals, mud and sand flats, and spoil banks. See id. Running the length of the Laguna Madre is the Intracoastal Waterway, a twelve feet deep, navigable watercourse dug by the U.S. Army Corps of Engineers during the 1940s. See Appendix 1.
"Spoil" is earth and rock that is excavated or dredged. Webster's Collegiate Dictionary 1136 (10th ed. 1993).
The Foundation contends that under Luttes, the eastern boundary of the Barreta grants is at the line of mean higher high tide. However, the State's principal argument is that Luttes does not apply because of the unique physical characteristics of the disputed area. Alternatively, the State contends that Luttes does not require the shoreline to be the mean higher high tide line if the location of the shoreline can be reasonably accurately determined otherwise. The State also argues that because the disputed area includes the tracts at issue in a prior federal case, Humble Oil Ref. Co. v. Sun Oil Co., 190 F.2d 191 (5th Cir.), on rehearing, 191 F.2d 705 (1951), cert. denied, 342 U.S. 920 (1952), res judicata and collateral estoppel form an independent basis to affirm the trial court's judgment.
To support its position, the Foundation retained surveyors Matt Claunch and Bill Lothrop to estimate a level one foot above the National Geodetic Vertical Datum of 1929 to find where the disputed area rose above that level. Although the surveyors never attempted to calculate mean higher high tide, as the Foundation claims Luttes requires, the surveyors reported that there is no place between the mainland and Padre Island where the elevation of the land is below their chosen elevation, other than the bed of the Intracoastal Waterway. The Foundation, however, limits its claim to the west or landward side of the Intracoastal Waterway. Sometime after the survey, the Foundation's tide expert purported to calculate mean higher high tide; but his calculation did not use NOAA methodology, as we explain later.
The "National Geodetic Vertical Datum of 1929" is a fixed reference adopted as a standard geodetic datum for elevations determined by leveling. See Tide and Current Glossary, U.S. Coast and Geodetic Survey, National Ocean Service 15 (1989).
The State retained surveyor Darrell Shine to survey the eastern boundary of the Barreta tracts. The Shine survey marks a boundary line that is not based upon a calculation of mean higher high tide because the State contends that mean higher high tide cannot be calculated in the disputed area. Instead, the Shine line is based upon historical evidence substantially contemporaneous with the grants. The State contends that the Shine line, located some six miles further west than the Claunch/Lothrop line, comports with the shoreline marked on previous maps and surveys of the area.
As reflected by the location of the Shine line, the State considers the disputed area to be submerged coastal public land that therefore belongs to the State. The John G. and Marie Stella Kenedy Memorial Foundation challenged the State's ownership of the disputed area in 1990. Shortly thereafter, the State leased the area for oil and gas exploration and deposited the proceeds in the Permanent School Fund established under Article VII of the Texas Constitution to support free public schools. Subsequently, the John G. and Marie Stella Kenedy Memorial Foundation also leased the disputed area for oil and gas exploration and assigned to the Corpus Christi Diocese of the Roman Catholic Church a fifteen percent nonparticipating royalty from its oil and gas leases. As a result, the mineral lessees filed a petition in interpleader and for declaratory relief, asking that the court determine to whom they should pay the royalties. The Foundation brought a cross-claim against the State, requesting declaratory relief and a declaratory judgment that the eastern boundary of the grants is at the Claunch/Lothrop line. In its answer to the Foundation's cross-claim, the State requested a declaratory judgment that the eastern boundary of the grants is at the Shine line.
"Submerged land" generally means any land extending seaward from the boundary between the land of the State and the littoral owners to the low-water mark on any saltwater lake, bay, inlet, estuary, or inland water within the tidewater limits, and any land lying beneath the body of water. Tex. Nat. Res. Code § 33.004(11). A presumption of public ownership exists for all submerged land. Lorino v. Crawford Packing Co. , 175 S.W.2d 410, 414 (Tex. 1943).
In a pretrial order, the trial court determined that "the Big Barreta and the Little Barreta [g]rants call for the Laguna Madre for their eastern boundary and are littoral." The court also concluded that:
the present case is governed by Luttes v. State though the correct application of that decision is in dispute. The Court will submit a jury question inquiring whether the Disputed Land lies above the elevation of mean higher high water (mean high water). If . . . the State [can] adduce evidence that the median line of high waters can be determined by a measuring technique other than exclusive resort to tide gauges, and can demonstrate that this upper median line of the shore, as regularly covered and uncovered, is different than mean higher high water as determined by tide gauges, the Court will also submit a jury question under that theory.
Thus, the trial court submitted the following questions to the jury, permitting the jury to consider a survey marking the seashore boundary based on mean higher high tide or on an alternate line:
Question No. 1
Do you find that a line based upon "mean higher high tide" of the Laguna Madre can be drawn with reasonable accuracy to establish the eastern boundary of the Barreta Grants?
The eastern boundary of the grants is the line where the fast land stops and the shore of the Laguna Madre begins. The shore is that area regularly covered and uncovered by the waters of the Laguna Madre over a long period of time.
As a general rule, the boundary is determined by the line of "mean higher high tide." "Mean higher high tide" is the daily highest water level averaged over a complete tidal cycle of 18.6 years. All daily highest water levels are included in the average, whether those levels are caused by astronomical forces (for example, the gravitational pull of the moon), by weather conditions (for example, wind, temperature, and atmospheric pressure), or by both. In localities where tide gauge readings for so long a period are not available, the data is corrected by comparison with the nearest gauge that affords a record for 19 years.
This general rule does not apply, however, if the upper level of the shore, as actually regularly covered and uncovered by the water, is higher than any level of "mean higher high tide," and an upper median line of the shore, as actually regularly covered and uncovered by the water, can be determined with reasonable accuracy. In such a case, the boundary is this upper median line of the shore. In determining the coverage of the water, extraordinary storm conditions are not considered.
Answer "Yes" or "No."
Answer: No
Regardless of your answer to Question No. 1, answer the following question.
Question No. 2
Do you find that the Claunch-Lothrop Survey Line . . . is at or above the line of "mean higher high tide," if any, of the Laguna Madre?
"Mean higher high tide" is defined in paragraph two of the instructions accompanying Question No. 1.
Answer "Yes" or "No."
Answer: Yes
If you have answered "No" to Question No. 1, then answer the following question. Otherwise, do not answer the following question.
Question No. 3
Do you find that the Claunch-Lothrop Survey Line . . . marks with reasonable accuracy the line between the fast land and the shore of the Laguna Madre?
Answer "Yes" or "No."
Answer: No
If you have answered "No" to Question No. 3, then answer the following question. Otherwise, do not answer the following question.
Question No. 4
Do you find that the Shine Survey Line . . . marks with reasonable accuracy the line between the fast land and the shore of the Laguna Madre?
Answer "Yes" or "No."
Answer: Yes
Although the jury found that the Claunch/Lothrop line was at or above the line of mean higher high tide, the jurors rejected this line as the eastern boundary of the Barreta grants. Based on the jury's answers, the trial court rendered judgment for the State, declaring that the Shine line represented the eastern boundary of the grants.
The court of appeals affirmed, holding that "besides allowing technologies other than tide gauges, the Luttes exception allows alternate accurate methods of finding the upper level of the shore." 994 S.W.2d at 296. The court of appeals examined the jury questions and concluded that the trial court did not reversibly err in permitting the jury to consider a survey marking the shoreline at the mean higher high tide line or an alternate line based on historical evidence. Id. at 306. The Foundation petitioned this Court for review, arguing that the court of appeals erred when it held that: (1) it was permissible to consider historical evidence to determine a grantor's intent; (2) Spain and Mexico, the grantors of the Barreta grants, intended to place the shoreline at the Shine line; and (3) this Court's opinion on rehearing in Luttes did not foreclose locating the civil-law shoreline at a line other than the mean higher high tide line.
The State contends that issue preclusion bars the Foundation's claims based on the Humble Oil litigation in federal court. The Humble Oil decision concerned some, but not all of the tracts at issue here. Because we dispose of the case on other grounds, we need not resolve the State's preclusionary arguments. We turn to the central dispute between the parties, whether Luttes necessarily sets a littoral boundary here at the line of mean higher high tide.
II. LITTORAL TRACTS
We first examine the State's contention that the Big Barreta and Little Barreta tracts are not littoral tracts, so that Luttes is not applicable to the boundary dispute here. The trial court found in its pretrial order that the Big Barreta and Little Barreta grants call for the Laguna Madre as their eastern boundary and are littoral. The court of appeals likewise concluded that the grantors intended that the Laguna Madre form the grants' eastern boundary. 994 S.W.2d at 291. We agree.
The Barreta grants call for the "edge" of the Laguna Madre as their eastern boundary. Because the grants call for a shoreline as a boundary, the grants are littoral. "Littoral" means "of or relating to the coast or shore." Black's Law Dictionary 945 (7th ed. 1999). A littoral owner is one whose land is adjacent to the shore. Tex. Nat. Res. Code § 61.001(6). Littoral owners maintain access to the water by owning the land up to the water's edge. See, e.g., Brainard v. State, 12 S.W.3d 6, 15 n. 2 (Tex. 1999) (defining a "riparian owner" as "one whose land is bounded by a river," and "riparian rights" as "those that such an owner has to the use of the water, including access to it at all stages"); City of Corpus Christi v. Davis, 622 S.W.2d 640, 646 (Tex.App.-Austin 1981, writ ref'd n.r.e.) (stating that "[l]ittoral rights, at common law, consist of the right of access to the water" and other rights).
The State contended at oral argument before this Court that "edge" or "margin" should be distinguished from "shoreline," so that Luttes does not apply to determine the Barreta tracts' boundary. That is, because the boundary can be determined as a specific line on the ground, according to the State, the tracts are not littoral. We decline, however, to make this distinction. The trial court found that the tracts are littoral. Additionally, the definitions of "edge" and "margin" are substantially equivalent to "shoreline"; all three refer to the line at which the land and water meet. Webster's Third New Int'l Dictionary 1381, 2102 (1981) (defining "margin" as "the boundary area extending along the edge of a body of water"; and "shoreline" as "the zone of contact of a body of water with the land"); Black's Law Dictionary 940, 979, 1384 (7th ed. 1999) (defining "margin" as a "boundary or edge"; "shore" as "land adjacent to a body of water"; and "line" as "a demarcation, border, or limit"). Therefore, we reject the State's argument that the definition of "edge" or "margin" should be distinguished from "shoreline."
Because these are littoral tracts and the original grants at issue were titled before January 20, 1840, the date the common law was adopted as the rule of decision in Texas, we start with the proposition that the Spanish and Mexican law in effect when the grants occurred controls the boundary location. Luttes, 324 S.W.2d at 176. We turn now to a discussion of the controlling legal authority.
III. LUTTES v. STATE A. The Civil-Law Shoreline
In Luttes, private landowners sued the State in a trespass to try title action of 3,400 acres in Cameron County, about fifteen to twenty miles north of Port Isabel and fifteen miles south of Port Mansfield. See Appendix 1. In that case, as here, the Laguna Madre bordered the land in dispute on the east. Where the mainland met the shore, there was an abrupt change in the angle of elevation, character, and appearance of the soil, including a well-marked beginning line of sand followed by grass and vegetation. Luttes, 324 S.W.2d at 168. This vegetation or bluff line appeared to be the land's original eastern boundary. Id. at 168-69. The landowners claimed, however, that the bluff line had ceased to be the boundary, because by process of accretion the mud flats now covered the area that was once covered by water. Id. at 169. Thus, the landowners in Luttes claimed that the boundary had moved further east and that they now owned the mud flats.
"Accretion" is the addition of land to the upland estate by the water depositing alluvion imperceptibly over a long period of time. Luttes , 324 S.W.2d at 187.
The Court looked at Las Siete Partidas, Partida III, Title 28, Law 4, the Spanish law in effect when the Luttes grant occurred. Id. at 177. After struggling with several translations of the Partidas and commentaries by numerous scholars, the Court concluded that the "Spanish (Mexican) law concept of the shore is the area in which land is regularly covered and uncovered by the sea over a long period." Id. at 192. The upper level of the shore is the shoreline. See id. at 191. The Court adopted the rule that the shoreline for civil-law land grants is at the mean higher high tide line, as defined by tide gauges. Id. at 191-92. As we discuss later, the Luttes Court further concluded that if the mean higher high tide line as defined by tide gauges using NOAA methodology did not accurately locate the shoreline, the shoreline could be defined by other reasonably accurate means. See id. at 192.
In choosing the mean higher high tide line as defined by tide gauges as the location of the civil-law shoreline, the Court explained in Luttes:
"tide" means the regular and predictable perpendicular daily rise (or rises) and fall (or falls) of the waters as a result of astronomical forces, to wit, the gravitational pull of the sun and moon (mostly the latter) upon the earth. . . . The levels reached by tides vary from day to day and as between all other fixed periods of time, however long, and also as between different geographical areas. But water levels are also influenced by weather conditions, such as wind, temperature and atmospheric pressures, as well as by other factors not connected with astronomical forces and, of course, by combinations of all or part of the former. Thus water level changes, whether produced by astronomical or nonastronomical forces or by combination between the former and the latter are reflected by the tide gauges, which record the different levels attained, although they do not, as to any given level or reading, purport to record the cause as astronomical, nonastronomical or both.
Id. at 173 (citing Tide and Current Glossary, U.S. Coast and Geodetic Survey, Special Publication No. 228, 23 (1949)).
The U.S. Coast and Geodetic Survey is a branch of NOAA.
Mean higher high tide (used to determine littoral boundaries in civil-law grants) and mean high tide (used to determine littoral boundaries in common-law grants) are elevations or heights — also referred to as datums or planes — calculated by obtaining daily water measurements from tide gauges, then averaging all daily high tides over the full 18.6 year tidal cycle. Id. at 169, 174 (citing Tidal Datum Planes, U.S. Coast and Geodetic Survey, Special Publication No. 135, 86 (1951)). Tide gauges reflect water level changes, whether produced by astronomical factors, weather conditions, or a combination of both. Id. at 173. On the Texas coast there are two high waters and two low waters every day. Id. at 191. The higher of the high waters is designated as the "higher high water," and thus is averaged over a long period to determine mean higher high tide. In contrast, mean high tide is calculated by averaging the lower of the high waters for a long period. The period of 18.6 years is used to calculate mean higher high tide and mean high tide because within such a period the astronomic forces affecting the water levels go through a complete cycle. Id. at 174.
The Luttes Court chose the mean higher high tide line to locate the civil-law shoreline, instead of averaging the single highest annual readings or other averages to find the shoreline, because the more readings used to determine the average, the more reliable and stable the resulting line would be. See id. at 181. That is, by taking a long-term average of daily highest water levels, "the large variations in sea level due to wind and weather tend to balance out." See Tidal Datum Planes, U.S. Coast and Geodetic Survey, Special Publication No. 135, 87 (1951). The Luttes Court noted that the trial court's finding of fact that "the average of single annual highest water over periods of several years was several times as high as `mean high tide (water)' shows that the meteorologically inspired levels on which the former was based were quite extreme or exceptional." Luttes, 324 S.W.2d at 180. The Court further explained that:
should we base the line, as did the [trial] court, on these few exceptional levels, we are likely to have a line of shore which is not shore in the commonly accepted sense of being regularly covered and uncovered by water. It is difficult to believe that the ancient writers of the [P]artidas had in mind a shore which was different from the commonly accepted idea thereof.
Id. In summary, the Luttes Court chose a line based on mean higher high tide, a calculation that ensures that water level changes due to astronomic factors are not minimized by changes due to the weather, as the location of the shoreline under Spanish and Mexican law. The Court rejected the trial court's methodology, which located the shoreline in a way that minimized the astronomic tide.
Furthermore, we believe that the Luttes Court intended that if tide gauges are used to calculate mean higher high tide, their accuracy must be approved by NOAA. While stating it was not bound by the decision, the Luttes Court nonetheless relied on the reasoning of the United States Supreme Court in Borax Consolidated v. Los Angeles, 296 U.S. 10 (1935), in adopting the requirement that the mean higher high tide line be located by tide gauges. Luttes, 324 S.W.2d at 192. Borax expressly approved the methodology of the U.S. Coast and Geodetic Survey (a branch of NOAA) for calculation of mean high tide. 296 U.S. at 26. Therefore, in approving the use of the tidal datum of mean higher high tide to mark the shoreline in Luttes, the Court implicitly adopted the methodology used by NOAA for measurement and calculation of that tidal datum. See Luttes, 324 S.W.2d at 191-92. The Luttes decision recognized the "confusion that appears to exist at the Bar and otherwise about what, in details of practical application to cases like the present, is the correct definition of the shore — the matter being obviously one of considerable public importance." Id. at 175-76. In response, Luttes established that when grantors of civil-law littoral tracts used the word "shore," they intended it to be the area regularly covered and uncovered by the sea over a long period of time, the upper level of the shore to be the shoreline, and such shoreline to be located at the line of mean higher high tide, as defined by tide gauges using NOAA methodology. See id. at 191-92. Therefore, we agree with the Foundation that the Court intended to eliminate uncertainty in calculating seashore boundaries for littoral tracts by announcing a broad requirement governing civil-law grants. The Luttes Court said "[w]e are far from sure that in actual practice the rule of mean high water is less favorable than a rule calling for a higher shore line that will always be vague and difficult of ascertainment until finally fixed on the ground after extended and complicated litigation." Id. at 187.
B. The Requirement of Mean Higher High Tide to Locate the Civil-Law Shoreline is Consistent with that of Other Jurisdictions
Before considering the State's argument that Luttes does not apply because it is factually distinguishable from this case, we note that the vast majority of cases apply rules similar to the Luttes requirement that the shoreline be located at the mean higher high tide line as established by tide gauges using NOAA methodology. This observation is buttressed by the number of other jurisdictions that follow the Luttes rationale of long-term averaging to determine seashore boundaries, and is consistent with the location of the common-law shoreline at the mean high tide line for lands granted after January 20, 1840. Rudder v. Ponder, 293 S.W.2d 736, 741 (Tex. 1956). For example, in Borax, the City of Los Angeles brought suit to quiet title to land claimed as tideland of Mormon Island located in Los Angeles Harbor. 296 U.S. at 12. The United States Supreme Court held that the tideland extends to the high-water mark, which is "the line of high water as determined by the course of the tides." Id. at 22. To determine the exact location of this line, the Supreme Court adopted a standard based on long-term averaging of daily high waters. Id. at 26-27. Consequently, the Supreme Court concluded that mean high tide, calculated by averaging the daily high tides over 18.6 years as defined by the U.S. Coast and Geodetic Survey, should be used to determine seashore boundaries for federal grants under common law. Id. Although the Supreme Court specifically left to individual states where to best locate state tidal boundaries, Borax is instructive in showing how federal courts determine seashore boundaries for common-law grants.
This Court followed Borax's reasoning and adopted the line of mean high tide as the common-law seashore boundary. Rudder, 293 S.W.2d at 741. In Rudder, the landowners claimed that the proper boundary of the privately-owned land or shore along the Gulf Coast in Copano Bay in Aransas County, Texas, was the common-law boundary along the contour line of four feet above sea level. The State countered that in accordance with Spanish and Mexican law, the true boundary line was 1.1 feet above sea level. In affirming the court of appeals' decision in favor of the landowners, this Court held that when the Republic of Texas adopted the common law of England on January 20, 1840, it adopted the common law as to the boundary of the sea. Id. at 741. This boundary was at the mean high tide line. Id.
Other jurisdictions have likewise adopted a long-term averaging of daily high tides to locate seashore boundary lines. See, e.g., Purdie v. Attorney General, 732 A.2d 442, 446 (N.H. 1999) (concluding that New Hampshire common law placed the public-private shoreline boundary at the level of mean high tide); Watts v. Lawrence, 703 So.2d 236, 238 (Miss. 1997) (holding that the State was the owner of all land below the mean high tide line in areas where private property borders on navigable waters); Smith v. State, 282 S.E.2d 76, 81 (Ga. 1981) (adopting the definition of mean high tide given by the U.S. Coast and Geodetic Survey as the averaging of the height of all waters at that place over a period of nineteen years and projecting that level to the point where it intersects with the shore to determine seashore boundaries); State v. Hay, 462 P.2d 671, 673 (Or. 1969) (explaining that land below, or seaward of, the mean high tide line is owned by the State); see also Roberts, The Luttes Case — Locating the Boundary of the Seashore, 12 Baylor L. Rev. 141, 167 (1960) (stating that as far as the writer could determine, every court in the United States that had determined the location of a seashore boundary had followed the reasoning of the United States Supreme Court in Borax, averaging the daily high tides over a long period).
Although these cases all considered common-law grants, they are nonetheless consistent with this Court's reliance on long-term averaging of daily high water levels in Luttes to ensure stability and predictability in locating the seashore boundary of civil-law grants. But despite the rationale underlying the decisions in these cases, the State urges the Court to ignore the Luttes requirement based upon the unique geography of the disputed area. We now consider this argument.
C. Differences between the Physical Characteristics of the Disputed Area in Luttes and this Case
As we said earlier, the boundary disputes in both Luttes and this case involve grants bordering the "edge" of the Laguna Madre. Nevertheless, the State argues that the nature of the Laguna Madre is different at the more southern Luttes location and that this difference in location and geography makes it impossible to calculate mean higher high tide in the area in dispute here. Thus, according to the State, Luttes does not apply and another method must be used to locate the civil-law shoreline.
The Luttes Court recognized that "water levels vary considerably from place to place in the Laguna." 324 S.W.2d at 181.
A NOAA report published in 1995 analyzing and describing the Laguna Madre's tide characteristics concluded that mean higher high tide cannot be accurately calculated in the disputed area. See Tidal Characteristics and Datums of Laguna Madre, Texas, NOS OES 008, National Ocean Service 30 (1995). According to NOAA, any tidal datum based on daily averaging of water levels greatly underestimates the regular, periodic extremes of water levels in the Laguna Madre adjacent to the disputed area. Additionally, NOAA found that the water levels at the tide gauges adjacent to the disputed area do not correspond with the water levels at the edge of the water on the mud flats at any given point in time.
The State's experts, Dr. Robert Morton, Dr. Warren Pulich, Dr. Michael Speed, George Cole, Cal Thurlow, and Dr. Joseph Newton, confirmed the correctness of NOAA's analyses of the gauge records in the Laguna Madre adjacent to the disputed area. Mr. Cole testified that it is impossible to use tide gauges in the disputed area to measure the boundary, and that he would have located the shoreline approximately where the State's surveyor, Shine, located it. Furthermore, the Foundation's surveyor, Claunch, testified that NOAA refused to certify tide gauges in the disputed area.
The Foundation maintains that despite the geographical differences, the line of mean higher high tide can be calculated here, and the Claunch/Lothrop line is at or above that line. The Foundation's tide expert, Dr. Flick, testified that he calculated mean higher high tide for the disputed area nearly five years after the Foundation's survey. But as stated earlier, NOAA determined that mean higher high tide could not be calculated in the disputed area and would not certify tide gauges there. Instead, Dr. Flick used a method to calculate mean higher high tide that he believed was permitted by the language in Luttes, even though he admitted that it was different from NOAA's method and had never been used by him before. Thus, this calculation of mean higher high tide by the Foundation's tide expert did not conform to NOAA methodology.
Furthermore, the record shows that the Foundation's surveyors, Claunch and Lothrop, did not survey a line of mean higher high tide in claiming that the disputed area belongs to the Foundation, as illustrated by Lothrop's testimony at trial:
Q: A line of mean higher high tide has not been surveyed. That's accurate, isn't it?
A: Yes, sir, that's right. . . . [W]e made a determination that the line we placed on the ground would be above any figure that could be computed for mean higher high water in the area.
Q: If, in fact, any figure could be computed?
A: Well, I think a figure could be computed.
Q: Well, do you recall that NOAA indicated that they did not have any determinations in an area like this for mean higher high water?
A: Yes, I recall that.
Q: So — and you personally didn't make any calculations of mean higher high water, did you?
A: No, I did not.
Q: So the point was, if there is any such thing, you felt confident that your line was higher than that thing, that line?
A: That's correct.
Q: But you didn't survey a tidal datum line?
A: That's correct.
Instead, Claunch and Lothrop estimated a level one foot above mean higher high tide and found where the mud flats rose above that level. They collected data from tide staffs they placed in the disputed area "as often as possible . . . in an effort to determine whether we were going to observe any kind of sustained or regular water surfaces that would exceed this one foot," according to Claunch. As a result of these observations, Claunch and Lothrop determined that they "were secure in [the] application of one foot as being a figure beyond which there was an extremely small probability of water ever reaching on a regular basis." But based on this methodology, Claunch and Lothrop found that other than the bed of the Intracoastal Waterway, there is no place between the mainland and Padre Island where the elevation of the land is below their chosen level. In summary, according to the Foundation's experts' calculations, the line of mean higher high tide could lie somewhere east of the Intracoastal Waterway, but the Foundation limits its claim to the west bank of the Laguna Madre.
We disagree with the Foundation's argument that the Intracoastal Waterway could mark the boundary of the grants. The record shows that water levels cannot be accurately measured in the disputed area according to NOAA. The part of the Laguna Madre at issue in Luttes was located between Port Isabel and Port Mansfield, in a portion of the lagoon where tide gauges can accurately determine the level of mean higher high tide using NOAA methodology. See Appendix 1. The disputed area in Luttes has different physical characteristics from the disputed area in this case. The undisputed evidence shows that mean higher high tide cannot be calculated here using NOAA methodology.
Moreover, to accept the Foundation's methodology, we would have to conclude that the shoreline of the Laguna Madre is at the Intracoastal Waterway, and possibly as far east as Padre Island. But such a conclusion would seem contrary to the meaning of "shoreline." Indeed, the Intracoastal Waterway was not in existence until 115 years after the grants and therefore it clearly is not the civil-law shoreline. Furthermore, the Foundation's surveyor, Lothrop, testified that the west bank of the Intracoastal Waterway definitely was not the shoreline of the Laguna Madre and thus not the boundary of the original grants.
Apparently, the Foundation recognizes that its proposed boundary is clearly at odds with the civil-law shoreline because the Foundation is willing to waive any potential claim to property east of the Intracoastal Waterway. But the location of a boundary line cannot depend on whether a property owner will or will not lay claim to all property his or her legal theory would warrant. We therefore reject the Claunch/Lothrop line as the seashore boundary of the Barreta grants.
D. The Luttes Rehearing Language
Implicit in the Court's decision in Luttes to rely upon an objective scientific measurement was an acknowledgment that the resulting boundary would represent the seashore boundary intended by the grantor. And we believe such an objective measurement — the mean higher high tide line calculated using NOAA methodology — should continue to be the starting point in all civil-law littoral tract disputes. However, we cannot apply that rule when mean higher high tide cannot be calculated using NOAA's standards. Therefore, we must decide whether to recognize an exception to Luttes under the facts presented here. The State argues that Luttes contemplated such a possibility.
The State contends that on rehearing, the Court in Luttes recognized that seashore boundaries for civil-law grants may be calculated by methods other than mean higher high tide. On rehearing the Court said:
[H]owever difficult it might now appear to us . . . to determine what the level of either mean higher high tide or mean high tide is in terms of the reach of water on the beach . . . we [cannot] be sure that is impossible, particularly having in mind such measuring techniques as science may hereafter afford.
Whatever may be the case as to that part of our shores governed by the Anglo-American rule of mean high tide, we do think it correct to say that the Spanish (Mexican) law concept of the shore is the area in which land is regularly covered and uncovered by the sea over a long period. If it be shown in a given case that the upper level of the shore, as actually covered and uncovered by the sea, is higher (or lower) than the level of mean higher high tide as determined by tide gauges, and if it also appears that an upper median line of the shore, as actually so regularly covered and uncovered, can be determined with reasonable accuracy otherwise than by exclusive resort to tide gauges, we do not by our opinion intend to foreclose such a case.
The State contends that this language creates an exception to the Luttes requirement that the shoreline be located at the mean higher high tide line as established by tide gauges using NOAA methodology, and that the language supports its position that Luttes does not require the use of mean higher high tide if it does not accurately locate the shoreline. The State says its experts showed, and the jury agreed, that there is no practical way to use tide gauges to mark the shoreline in the disputed area, and the water levels at the gauges do not reflect the higher reach of the water on the flats. Thus, while it is possible to calculate the arithmetic average of a series of numbers, the State concludes that that average says nothing meaningful about the actual location of the shoreline.
The Foundation argues that the Luttes Court did not create an exception to the Luttes requirement that the shoreline be located at the mean higher high tide line as established by tide gauges. The Foundation asserts that on rehearing this Court was merely writing to clarify the distinction in Luttes between the proper application of mean high tide and mean higher high tide. In its original opinion, the Court had reasoned that the seashore boundary must be based on a long-term average of daily high water readings. It is not reasonable to conclude, asserts the Foundation, that the Court intended to disavow its original opinion and adopt a different standard simply because it omitted the words "mean higher high tide" in the first paragraph of the rehearing opinion quoted above. This is especially true because this Court on rehearing in Luttes clarified that the mean higher high tide line is the appropriate location, and also reiterated its rejection of a boundary based on a bluff or vegetation line. Finally, the Foundation argues that a plain reading of the language the State relies on supports the Foundation's position that the mean higher high tide line is the civil-law littoral boundary, but that methods other than tide gauges may be used to determine the mean higher high tide line.
We agree with the State that the Luttes language on rehearing left open the possibility that the civil-law shoreline may be located at a place other than the mean higher high tide line if it does not accurately reflect the shoreline. As we said earlier, the civil-law shore under Luttes is the area that is regularly covered and uncovered by the sea over a long period, the upper level of the shore is the shoreline, and the shoreline is the line of mean higher high tide as determined by tide gauges using NOAA methodology. See id. at 191-92. If that line, however, cannot be located or does not accurately locate the shoreline, then Luttes does allow for the upper level of the shore (the shoreline) of the area regularly covered and uncovered by the sea over a long period to be located otherwise with reasonable accuracy. We next consider whether the State has located the shoreline with reasonable accuracy.
IV. ALTERNATIVE BOUNDARY LINE
Because the Luttes requirement cannot be applied here, we must determine by some other method where the Barreta grantors intended to locate the shoreline. The State argues that because the shoreline cannot be determined using daily average water levels, Shine correctly examined the historical evidence substantially contemporaneous with the grants to determine with reasonable accuracy the location of the shoreline intended by the original grantors.
Historical evidence substantially contemporaneous with the grant was considered in determining a specific boundary line on the ground in those civil-law cases decided before Luttes. Indeed, in Cavazos v. Trevino the Court recognized the importance of such evidence:
The practical interpretation which parties interested have by their conduct given to a written instrument, in cases of an ancient grant of a large body of land asked for and granted by general description, is always admitted as among the very best tests of the intention of the instrument.
In construing such a grant, the circumstances attendant, at the time it was made, are competent evidence for the purpose of placing the court in the same situation, and giving it the same advantages for construing the papers, which were possessed by the actors themselves.
35 Tex. 133, 163 (1872) (quoting Cavazos v. Trevino, 73 U.S. 773, 773 (1867) (syllabus)); see also Cavazos v. Trevino, 73 U.S. at 784-85. Accordingly, we conclude that the use of such evidence is appropriate to determine the shoreline of a civil-law littoral grant when, as in this case, mean higher high tide cannot be calculated using NOAA methodology as required by Luttes and the location of the shoreline has not changed from the original grant.
We share the Foundation's concerns, however, that by relying upon historical evidence contemporaneous with the grants, future seashore boundaries will be decided on an uncertain case-by-case basis, after possible protracted, expert-laden and expensive litigation that many of our citizens could little afford. And adhering to the mean higher high tide standard furthers stability in seashore boundary disputes, ensuring "substantial identity" between the Texas civil-law and common-law seashore boundaries, as this Court recognized in Luttes. 324 S.W.2d at 177. But even stability and certainty in land titles, and the desire to limit protracted litigation, cannot justify an application of a rule that produces a line that clearly cannot be the shoreline.
For the foregoing reasons, we conclude that historical evidence substantially contemporaneous with the grants can be used to locate the shoreline of the civil-law littoral grants in this case because the Luttes requirement that the shoreline be located at the mean higher high tide line as established by tide gauges using NOAA methodology cannot be applied here. We now turn to the question of whether the Shine line is consistent with the historical evidence substantially contemporaneous with the grants and factually sufficient to represent the Barreta grants' boundary, as found by the jury.
V. THE SHINE LINE
In examining whether the Shine line is consistent with the historical evidence substantially contemporaneous with the grants and factually sufficient to represent the Barreta grants' boundary, we turn first to the evidence that the shoreline's location has not changed since the original grants. Experts for both sides testified that based on the original surveys and maps and photographs of the area from the time of the grants to the present, the disputed area's physical characteristics have not materially changed since the time of the grants, unlike the area in Luttes. That is, the waters of the Laguna Madre continue to inundate the disputed area here on a regular basis, year in and year out, just as they did when the grants were made. Additionally, unlike the area at issue in Luttes, the disputed area here has never been permanently submerged beneath the waters of the Laguna Madre. Rather, it has always been regularly covered and uncovered by seawater, reaching the boundary line located by the original surveyors and Shine several times per year. Thus, the parties agree that the area has essentially the same physical characteristics and topography today as it had at the time of the grants, and has never been below the elevation calculated by the Foundation's experts.
The parties also provided a collection of maps, dated from 1689 through 1992, showing the disputed area to be part of the Laguna Madre, and the Laguna Madre to be a continuous natural feature from Corpus Christi Bay to Brownsville. Included in this evidence were maps of the first reconnaissance survey of the area in 1845 and 1846. The Foundation's surveyor, Claunch, agreed that this survey shows that the physical characteristics of the disputed area were the same then as today.
Other evidence shows that the disputed area has not changed since the time of the grants. For example, a 1915 surveyor's map of the lands of the Kenedy Pasture Company, the Foundation's predecessor-in-interest, shows the disputed area as a part of the Laguna Madre, and locates the shoreline of the Laguna Madre where all prior maps and surveyors, as well as Shine, placed it. Maps prepared in connection with the Humble Oil litigation depict a daily aerial survey of water inundation of the disputed area between June 2, 1948, and December 4, 1949. The maps, compared with maps of a similar aerial survey the State conducted between April 24, 1995, and September 5, 1995, show how similarly the waters of the Laguna Madre flowed in 1948, before the construction of the Intracoastal Waterway, and years later in 1995.
Finally, both the State's and the Foundation's geologists testified that the elevation of the disputed area has changed very little in the last 200 years, and that throughout that time the area has been intermittently inundated with seawater but never permanently submerged. Both also testified that the dredging of the Intracoastal Waterway changed the patterns of inundation of the disputed area, but that seawater continues to inundate the disputed area as it has for the last several hundred years. The Foundation's geological expert, Dr. Richard Watson, acknowledged that the disputed area has always been, and still is, covered and uncovered by the waters of the Laguna Madre, year after year, though not on a daily basis.
The State argues that the historical evidence substantially contemporaneous with the grants shows the grantors intended the bluff or vegetation line as the eastern boundary of the Barreta tracts. The State also contends that the Shine line is based largely on this historical evidence. Shine reviewed the original grants, prior surveys, the Spohn patent, historical photographs, prior court cases, and information from NOAA. He overlaid prior surveys on aerial photographs of the disputed area and observed that the shoreline was easily recognizable and had not changed noticeably since the date of the earliest surveys, despite the construction of the Intracoastal Waterway in the 1940s. In determining that the Shine line marks with reasonable accuracy the shoreline of the Barreta tracts, the jury considered the original grants and surveys. As we described earlier, the Mesquite Rincon, an additional four sitio island located in the Laguna Madre, was included as part of the land patented as the Big Barreta grant after the Foundation's predecessor-in-interest initially petitioned the King of Spain for twenty-five sitios of land. See Appendix 2. The State argues that the additional grant of the Mesquite Rincon would have been redundant and meaningless if the original grant already included the disputed area. Furthermore, in 1882, J.J. Cocke surveyed 186 sections of the Big Barreta to enable the State to locate railroad company certificates in the area. The survey did not include the disputed area as a part of the proposed railroad sections, but instead treated it as a part of the bed of the Laguna Madre. In 1902, the State sued the Foundation's predecessors-in-interest, claiming the area as unpatented State land. Although the expediente for the original grant had been lost, the court held that the defendants proved that the Big Barreta grant was issued, and its judgment identified the eastern boundary of the grant as the Laguna Madre's west margin. The court ordered a survey of the area to establish the boundary for issuance of a patent. That judgment was affirmed in State v. Spohn. 83 S.W. 1135, 1135 (Tex.Civ.App.-Austin 1904, writ ref'd). After the Spohn judgment, F.M. Maddox surveyed the Big Barreta grant, and a patent was issued on the Maddox field notes in 1907. Maddox's survey generally conformed to the Cocke survey. Both surveys confirm that the Big Barreta grant did not include the disputed area.
The jury also considered the original grants and surveys of the Little Barreta. The Little Barreta was originally surveyed by Domingo de la Fuente in 1834, at the time Mexico granted the land to the Foundation's predecessor-in-interest. As we discussed earlier, the State contends that the substitution of land to achieve the intended five sitios of pastureland requested by the Foundation's predecessor-in-interest shows that the original grantor of the Little Barreta did not intend to include the disputed area in the grant. That is, the substitution was made because the originally surveyed land extended into the Laguna Madre and therefore could not serve as pastureland. In 1879, J.J. Cocke made a confirmation survey of the Little Barreta grant. The meander lines of the Cocke survey conform closely to the diagrammatic sketch of de la Fuente.
The jury found that the Shine line marks with reasonable accuracy the line between the fast land and the shore of the Laguna Madre. Based on this finding, the trial court rendered judgement for the State, declaring that the Shine line represented the Barreta grants' eastern boundary. We conclude that there is evidence to support that finding.
However, we recognize that the Luttes requirement that the shoreline be located at the mean higher high tide line as established by tide gauges using NOAA methodology provides the benefits of certainty and stability for civil-law seashore boundaries. Thus, we limit our holding to the facts of this case. We share the Foundation's concern that in the future, surveyors asked to locate the civil-law seashore boundary based on the criteria the State argued may likely describe different locations, and the disparity between their lines could extend many miles. That, however, is not the case here. Every survey of the disputed area referred to in the record, except for the Foundation's survey, has located the seashore boundary at or near the line argued by the State. The parties agree that the physical characteristics of the area have not materially changed since the time of the grants. Moreover, the Foundation's surveyors acknowledge that the Shine line is consistent with the line on the ground the original surveyors located and admit that the Foundation's line is not the original grants' boundary as located by the original surveyors. Because we reject the Foundation's claim, we need not consider the State's other arguments that: (1) proving accretion is necessary to prove title; and (2) the Foundation's boundary line is barred by res judicata and collateral estoppel.
VI. ATTORNEY'S FEES
The Foundation and the State have both asked this Court for an award of attorney's fees under the Texas Uniform Declaratory Judgment Act. The trial court did not award attorney's fees to either party. The court of appeals found no abuse of discretion by the trial court in denying attorney's fees to the Foundation and the State. We agree.
Under the Act, the trial court may award attorney's fees "as are equitable and just." Tex. Civ. Prac. Rem. Code § 37.009; Brainard v. State, 12 S.W.3d 6, 27 (Tex. 1999). The Act authorizes the entry of declaratory relief against the State only in specifically described types of actions — questions of "construction, or validity arising under [an] instrument, statute, ordinance, contract or franchise." Tex. Civ. Prac. Rem. Code § 37.004. But the Foundation pleaded none of these. Moreover, the statute that authorizes suits against the State in these types of cases is section 33.171 of the Texas Natural Resources Code. Section 33.171, however, does not provide for an attorney's fees award and cannot be construed as a waiver of governmental immunity from liability for such awards.
More importantly, we conclude that the trial court's denial of the Foundation's and the State's claims for attorney's fees was not an abuse of discretion. See Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). Whether to award attorney's fees in a Declaratory Judgment Act case is largely within the trial court's discretion, and its decision will not be reversed absent an abuse of that discretion. Id. Prevailing in a declaratory judgment action, and conversely, failure to prevail, is not a determining factor in an award of attorney's fees. See Comm'rs Court v. Agan, 940 S.W.2d 77, 82 (Tex. 1997); Barshop v. Medina, 925 S.W.2d 618, 637 (Tex. 1996). Because neither party established an abuse of discretion, we affirm the trial court's judgment denying the State's and the Foundation's attorney's fees.
VII. CONCLUSION
We conclude that the grantors of the nineteenth-century land grants of the Big Barreta and the Little Barreta intended to convey title to the edge of the Laguna Madre and that edge is equivalent to the shoreline of the Laguna Madre. Under Luttes, the shoreline for civil-law littoral tracts is the upper level of the shore, defined as the area that is regularly covered and uncovered by the sea over a long period; and such shoreline is the line of mean higher high tide as determined by tide gauges using NOAA methodology. However, because of the unique physical characteristics of the disputed area, we further conclude that mean higher high tide cannot be calculated in the disputed area using NOAA methodology.
Because the Luttes requirement that the shoreline be located at the mean higher high tide line as established by tide gauges using NOAA methodology cannot be applied here, and because the shoreline's location has not changed since the original grants, we hold that the shoreline may be located by historical evidence substantially contemporaneous with the grants. Finally, we conclude that the Shine line is consistent with the historical evidence substantially contemporaneous with the grants, and thus the State established that the Shine line marks the boundary of the Barreta grants with reasonable accuracy. Accordingly, we affirm the judgment of the court of appeals on the merits as well as on attorney's fees.