Opinion
No. 7505.
October 11, 1918.
On motion for rehearing. Motion granted to the extent of reforming lower court's judgment, and judgment as reformed affirmed.
For former opinions, see 201 S.W. 1029, and 206 S.W. 381.
In appellant's motion for rehearing in this cause, attention is called to the fact that the trial court's judgment commanding appellant to make the survey of the old river bed of the Brazos river as prayed for by appellee, among other recitations, contained the following: "And to survey at the bank or top of the bank of said old river."
Contention is made that a judgment so worded runs counter to the well-settled principle that in Texas the grantee of land on a navigable stream takes title to the water line of the stream. Austin v. Hall, 93 Tex. 597, 57 S.W. 563; Gould on Waters (3d Ed.) § 76. Upon a re-examination of the form of the decree, it appears somewhat ambiguous and possibly susceptible of the construction thus placed upon it by appellant. This conclusion, however, does not require a reversal of the trial court's judgment, but appellant's motion for rehearing will be granted only to the extent that the quoted recitation will be stricken from the judgment below, and, as thereby reformed, that judgment will be in all things affirmed, as has been before ordered by this court.
In all other particulars the motion is overruled.