Donald H. Cummins, Betty Ann Bradfield Cummins, Thomas W. Cummins and William Bradfield Cummins v. Travis County Water Control and Improvement District No. 17

• Court: Court of Appeals of Texas
• Decided: June 3, 2005
• Docket: 03-04-00049-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-04-00049-CV

Donald H. Cummins, Betty Ann Bradfield Cummins, Thomas W. Cummins and William Bradfield Cummins, Appellants

v.

Travis County Water Control and Improvement District No. 17, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT NO. GN203636, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING

OPINION

Appellants Donald H. Cummins, Betty Ann Bradfield Cummins, Thomas W.

Cummins, and William Bradfield Cummins own property on a high bluff overlooking Lake Travis

and abutting land owned by appellee, the Travis County Water Control and Improvement District

No. 17. In 2002, the Cumminses applied to the District for a license to build a boat dock on a part

of the lake subject to the District’s regulation. After the District denied the license, the Cumminses

sought a declaratory judgment that they have rights to use and enjoy their land as waterfront

property, inclusive of the right to construct a recreational boat dock, because they are riparian or

littoral owners of land along the shore of Lake Travis or, in the alternative, because they possess an

easement or quasi-easement entitling them to such rights. The Cumminses also challenged two regulations that the District had enacted to

protect restricted zones around its water intake barge; the Cumminses alleged that the first

regulation, which prohibits all activity within a 200-foot radius and mandates that warning signs be

placed along the shoreline, constitutes an inverse condemnation of their land and that the second

regulation, which prohibits recreational boating activity within a 1000-foot radius, is invalid. The

District responded with a motion for summary judgment, and the trial court granted it. The

Cumminses appeal, asserting that the summary judgment should be reversed because genuine issues

of material fact remain. Because the District satisfied its burden to establish its entitlement to

summary judgment, and no genuine issues of material fact remain, we affirm the judgment.

BACKGROUND

In Texas, water is a scarce natural resource that the State is obligated to conserve and

protect for the benefit of the health, safety, and welfare of the general public. In accordance with this

duty, the State has statutorily created several types of water districts with authority to regulate the

uses of Texas’s various bodies of water. The Travis County Water Control and Improvement

District No. 17 is one such district, which has operated since 1958 as a political subdivision of the

State of Texas, under the supervising authority of the Texas Commission on Environmental Quality,1

for the purpose of providing an adequate supply of safe, potable water and ensuring the fiscally

sound, environmentally responsible development and management of water resources and

1 The TCEQ was formerly called the Texas Natural Resource Conservation Commission.

2 wastewater facilities. To further these objectives, in 1960 the District installed an “intake barge” in

Lake Travis, which pumps raw water through pipes to the District’s treatment facility, where the raw

water is treated and made suitable for drinking.

Nearly two decades after the District was established, the Cumminses acquired title

to the property immediately north of the District’s land, when Betty Ann Bradfield Cummins

inherited the property from her mother in 1975. The property had been in Mrs. Cummins’s family

(the Bradfields) since 1943. The Cumminses’ property sits atop a steep bluff; its southern border

converges with the District’s northern border at the head of a small cove, and both properties

overlook Lake Travis to the west. The District’s intake barge is located in the waters of Lake Travis,

approximately 110-120 feet from the shoreline of the cove.

In 1992, the Commission promulgated a substantive rule governing public water

sources. 30 Tex. Admin. Code § 290.41(e)(2) (2004). The rule sets forth the actions water control

and improvement districts are required to take to ensure an adequate supply of safe drinking water:

[i]ntakes shall be located and constructed in a manner which will secure raw water of the best quality available from the source. . . . (B) Raw water intakes shall not be located within 1,000 feet of boat launching ramps, marinas, docks, or floating fishing piers which are accessible by the public. (C) A restricted zone of 200 feet radius from the raw water intake works shall be established and all recreational activities and trespassing shall be prohibited in this area. Regulations governing this zone shall be in the city ordinances or the rules and regulations promulgated by a water district or similar regulatory agency. The restricted zone shall be designated with signs recounting these restrictions. The signs shall be maintained in plain view of the public and shall be visible from all parts of the restricted area. . . . Provisions shall be made for the strict enforcement of such ordinances or regulations.

3 Id. Pursuant to this rule, the District enacted its own regulations in 1998, including Regulation

6.5.3.2, which establishes a “clear zone” around the District’s raw water intake barge. Reg. 6.5.3.2,

Protection of Water Intakes. The regulation prohibits “[a]ll activity not related to the maintenance

of the barge or intake” within 200 feet. Starting from the barge, the 200-foot radius encompasses

parts of the lake, as well as the cove where the southernmost corner of the Cumminses’ property

abuts the northernmost corner of the District’s land. The regulation also prohibits “[a]ll recreational

boating activity within 1000 feet.” The 1000-foot radius, also extending outward from the barge,

covers more than half of the Cumminses’ property and a large portion of the District’s land. Finally,

the District’s regulation mandates that “[s]igns advising the general public of this order shall be

posted along the shoreline . . . [and] should read ‘Restricted Zone, Potable Water Intakes Within 200

Feet, Trespassing Prohibited.’” Within a few months of adopting Regulation 6.5.3.2, the District

placed an order with a sign company for signs stating in large, bold letters, “Restricted Zone: Potable

Water Intakes, Trespassing Prohibited within 200 feet” and “Keep Clear: Submerged Cable and

Mooring Lines Below; High Voltage.”

Following the enactment of the District’s regulations, the Cumminses subdivided

their property into six lots. Lots 1, 4, 5, and 6 are each lakefront properties, while Lots 2 and 3 are

landlocked. Because of the land’s location atop a steep bluff, all six lots offer lakefront views. Lot

6 is the southernmost plot, running alongside the northern border of the District’s land, and

converging at the small cove about 115 feet inland from the intake barge. The entire shoreline of

Lot 6 falls within the 200-foot “clear zone.”

4 In October 1999, the Cumminses prepared a boundary agreement stating that the

boundary lines between their property and the District’s property were defined by “the most

Southerly boundary line of Lot 6,” and “the 670-foot contour line2 as the most Westerly boundary.”

A map of the property was attached to the agreement; the map reinforces the terms of the agreement

by labeling the 670-foot contour line, which is shown running along the western border of the

Cumminses’ property, as the “agreed boundary line.”

In 2002, the Cumminses applied to the District for a license to construct a boat dock

extending from their property over the waters and submerged lands of Lake Travis, which are held

by the State in trust for the public. When the District refused to grant the Cumminses’ application

for a license, the Cumminses sought a declaratory judgment. The Cumminses claimed that, because

their chain of title conveyed waterfront property, they had littoral or riparian rights entitling them to

construct a recreational boat dock on the submerged lands below the 670-foot contour line.

Alternatively, they claimed to have a valid easement or quasi-easement to use and enjoy their land

as lakefront property, which included the right to construct such a dock. The Cumminses

additionally challenged the District’s regulations, claiming that the 200-foot and warning-sign

regulations constituted an inverse condemnation—a taking for which the Cumminses should be

compensated—and that the 1000-foot regulation was invalid.

2 In 1938, when Mansfield Dam was under construction, the Lower Colorado River Authority adopted contour lines—as designated by the United States Geological Survey Bench Marks—establishing the lake’s average elevation, measured by feet above sea level. Capitol Rod & Gun Club v. Lower Colo. River Auth., 622 S.W.2d 887, 889 (Tex. App.—Austin 1981, writ ref’d n.r.e.).

5 The District filed a Rule 166a(c) motion for summary judgment with evidence

attached.3 See Tex. R. Civ. P. 166a(c). The District asserted that the Cumminses are not littoral or

riparian owners and that they are not entitled to moor a boat dock on the submerged land because

they do not hold title to that land, which is regulated by the District pursuant to authority delegated

by the State, and because the Cumminses do not have any easements over that land. The District

also supported the validity of its regulations, asserting that they do not constitute an inverse

condemnation of the Cumminses’ property.

The trial court granted the District’s motion, denying each of the Cumminses’ claims.

The Cumminses appeal, urging that the summary judgment should be reversed because genuine

issues of material fact remain regarding whether (1) the Cumminses have riparian or littoral rights

appurtenant to their land; (2) the Cumminses have an easement or quasi-easement to use and enjoy

their land as waterfront property; (3) their land has been inversely condemned by the District’s 200-

foot and warning-sign regulations; and (4) the 1000-foot regulation is invalid.

STANDARD OF REVIEW

We review the district court’s grant of summary judgment de novo. Joe v. Two Thirty

Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004). When reviewing a summary judgment, we

take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and

3 The following were attached as evidence: (1) the affidavit of Deborah Gernes, General Manager for the District; (2) a copy of District Regulation 6.5.3.2; (3) a copy of the District’s order form from the sign company; (4) minutes of the District’s board meetings showing that Donald Cummins was previously a member of the District’s Board of Directors; (5) articles and reports about the hazards of gas chemicals from boats in water; (6) a copy of the 1999 Boundary Agreement with the map attached; and (7) the affidavit of Claude Hinkle, an expert surveyor, with copies of several deeds from the Cumminses’ chain of title attached.

6 resolve any doubts in the nonmovant’s favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546,

548-49 (Tex. 1985). A defendant who moves for summary judgment under Rule 166a(c), as here,

is entitled to have its motion granted if it conclusively negates at least one of the essential elements

of the plaintiff’s cause of action or if it conclusively proves each element of its affirmative defense,

thereby showing that it, as the movant, is entitled to judgment as a matter of law and no genuine

issues of material fact remain. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex. 1999).

The defendant must support its motion with proper summary judgment evidence. Tex. R. Civ. P.

166a(c). Only if the defendant meets its burden does the burden shift to the plaintiff, as the

nonmovant, to establish that a genuine issue of material fact remains. Id. If the trial court does not

specify the grounds upon which the summary judgment was granted, as here, the judgment can be

affirmed if any of the theories advanced are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569

(Tex. 1989). Because the District established that it was entitled to a judgment as a matter of law

on each of the Cumminses’ claims, and no genuine issues of material fact remain, we affirm the

judgment.

ANALYSIS

Riparian and Littoral Rights

The Cumminses assert in their second and fourth4 issues that, because their property

borders a lake, they have littoral rights “to use their property as waterfront property.” The District

4 The Cumminses’ second issue asserts that they have littoral rights in their entire parcel of land, while their fourth issue asserts, in the alternative, that they have littoral rights in Lots 1-5, but not in Lot 6. We address these issues together.

7 asserts that the Cumminses’ property is not vested with either riparian or littoral rights and that, even

if it were, those rights would not entitle the Cumminses to moor a private, recreational boat dock on

the District’s land.

Initially, in their petition for declaratory judgment, the Cumminses asserted that they

“have riparian or littoral rights to construct docks and other improvements needful to their use of

their property as waterfront property” and that the “rights to use their property as waterfront property

. . . include the right to construct boat docks to serve the property.” The Cumminses’ argument in

their summary judgment response similarly focused on their right to construct a boat dock; they

asserted, “persons with littoral rights have the right to build docks on their water front.” On appeal,

however, the Cumminses advanced a more general claim that they have littoral rights to use their

land “as waterfront property,” without confining the issue to whether or not those rights entitle them

to construct a boat dock. The District, on the other hand, has continuously maintained both that the

Cumminses have no littoral rights and that, even if they do, they are not entitled to construct a boat

dock on land held by the State and regulated by the District. We will first address the general issue

of whether the Cumminses have littoral rights and will then address the specific issue of whether

they are entitled to construct a boat dock.

In raising the littoral rights issue, the Cumminses join centuries of Texas landowners

whose private rights to use the water adjacent to their land have clashed with the State’s right to

regulate waters for the general welfare of the people. See Barshop v. Medina Underground Water

Conservation Dist., 925 S.W.2d 618, 623 (Tex. 1996). In recent years, the “interest and urgency”

in the ongoing battle between private and public rights to Texas water has grown, based on the

8 increasing awareness that water is “a scarce natural resource vital to the public,” which must be

conserved. City of Austin v. Hall, 57 S.W. 563, 565 (Tex. 1900) (scarce resource); Madison

Rayburn, 1 Condemnation § 3.16, at 25 (1998) (growing interest) (hereinafter Rayburn); Frank F.

Skillern, I Texas Water Law 69 (1992) (since 1982, Texas has heightened its focus on conservation

of water resources and protection of water quality) (hereinafter Skillern I). As here, many disputes

have centered on whether a waterfront property owner has riparian or littoral rights in the land and,

if so, what uses those rights entitle the owner to make of the land.

As an initial matter, we must address and define the terms “riparian” and “littoral.”

Although the Cumminses refer primarily to “littoral” rights in their appellate brief, they used the

terms “riparian” and “littoral” interchangeably in their previous pleadings, in their reply briefs, and

at oral argument before this Court. The District likewise referenced both riparian and littoral rights.

In Texas jurisprudence, riparian and littoral rights are treated similarly, and the terms are used

interchangably,5 but “riparian” refers to the waters of rivers and streams, while “littoral” refers to the

waters of lakes, seas, and oceans. See Black’s Law Dictionary 945, 1328 (7th ed. 2001). Even still,

many authorities employ “riparian” as a blanket term to refer to a landowner’s rights regarding any

type of waterfront property, without distinguishing the rights as “littoral” when discussing lakefront

properties. Filipos v. Chouke, 40 S.W.2d 38, 40 (Tex. 1931) (riparian rights discussed in reference

to creeks, bayous, lakes, and coves); Humphreys-Mexia Co. v. Arseneaux, 297 S.W. 225, 229 (Tex.

5 The Cumminses acknowledged in their summary judgment response that a waterfront property owner’s rights “to use the water appear to be the same whether the rights are called littoral or riparian and the terms are sometimes used interchangeably.” Moreover, in an amicus curiae brief, the LCRA discussed the history and nature of riparian rights as pertinent authority for whether the Cumminses have littoral rights.

9 1927) (riparian rights attach to natural lakes and ponds); Richter v. Granite Mfg., 174 S.W. 284, 286

(Tex. 1915) (discussing riparian rights in terms of lakefront property); Welder v. State, 196 S.W.

868, 870 (Tex. Civ. App.—Austin 1917, writ ref’d) (same); Gibson v. Carroll, 180 S.W. 630, 632

(Tex. Civ. App.—San Antonio 1915, no writ) (land bordering Corpus Christi Bay was “riparian”);

W. Hutchins, Texas Law of Water Rights 332 (1961) (“word ‘riparian’ pertains to the bank of a

river, or lake, or tidewater”) (hereinafter Hutchins). That said, there are cases distinctly using the

term “littoral” to describe the rights attached to certain lands affronting lakes, seas, and other bodies

of water. Norrell v. Aransas County Navigation Dist. No. 1, 1 S.W.3d 296, 298 n.1 (Tex.

App.—Corpus Christi 1999, no pet.) (“Littoral property rights are appurtenant to land which borders

a lake or sea.”); Natland Corp. v. Baker’s Port, Inc., 865 S.W.2d 52, 57 (Tex. App.—Corpus Christi

1993, writ denied) (littoral rights defined as “[s]horeline property owners’ rights”); City of Port

Isabel v. Missouri Pac. R.R. Co., 729 S.W.2d 939, 942 (Tex. App.—Corpus Christi 1987, writ ref’d

n.r.e.) (land adjacent to Laguna Madre was “littoral”); City of Corpus Christi v. Davis, 622 S.W.2d

640, 646 (Tex. App.—Austin 1981, writ ref’d n.r.e.) (“Littoral rights are appurtenant to the land

which borders a lake or sea.”); see also Tex. Nat. Res. Code Ann. § 61.001 (West 2001) (defining

“littoral owner” as “owner of land adjacent to the shore” of beaches and dunes).

While we recognize that “littoral” is the precise term to describe water rights in

relation to lakefront properties, the above cases make clear that the nature of littoral rights is parallel

to that of riparian rights. Because the term “riparian” is frequently discussed in relation to all types

of waterfront properties, including lakefront properties, our analysis is guided by the cases and

authorities discussing the history of riparian rights, specifying when waterfront lands are or are not

10 vested with riparian rights, and delineating the rights conferred to riparian owners. These cases

provide analogous authority to establish whether a particular parcel of land is vested with littoral

rights and, if so, what uses the owner is entitled to make of his land. See Coastal Indus. Water Auth.

v. York, 532 S.W.2d 949, 952 (Tex. 1976) (discussing rules with equal application to riparian and

littoral land).

Is the Cumminses’ land vested with littoral rights?

The Cumminses claim that they have littoral rights attached to their land based merely

on its proximity to the waters of Lake Travis. The District conclusively established, however, that

the Cumminses’ land is not vested with littoral rights because their title cannot be traced back to a

grant from the sovereign between 1823-1895 and because their land is not appurtenant to a natural

lake with a normal flow of water.

For a landowner to establish that his land is riparian or littoral, the land must have

certain characteristics. First, the landowner must be able to trace his chain of title back to a grant

from the sovereign between 1823 and 1895. Tex. Water Code Ann. § 11.001(b) (West 2000) (“The

code does not recognize any riparian right in the owner of any land the title to which passed out of

the State of Texas after July 1, 1895.”); In re Adjudication of Water Rights in Llano River

Watershed, 642 S.W.2d 446, 447-48 (Tex. 1982) (no riparian rights in portions of land granted from

State after 1895, but owner did have riparian rights in other portions of land granted before 1895);

In re Adjudication of Water Rights of Upper Guadalupe Segment, 642 S.W.2d 438, 444 (Tex. 1982)

(land vested with riparian rights if granted from sovereign prior to July 1, 1895); Watkins Land Co.

v. Clements, 86 S.W. 733, 735 (Tex. 1905). Land granted from the Mexican or Spanish governments

11 between 1823-1840 was vested with civil law riparian rights. In re Adjudication of Water Rights of

Brazos III Segment, 746 S.W.2d 207, 209 (Tex. 1988); see also Norrell, 1 S.W.3d at 298 n.1 (land

with title traceable back to Mexican grant had littoral rights attached); City of Port Isabel, 729

S.W.2d at 942 (same). In 1840, Texas adopted the English common law riparian system. Motl v.

Boyd, 286 S.W. 458, 465-66 (Tex. 1926); Skillern I, at 29. The State continued to recognize

common law riparian rights in land granted from the sovereign until 1913, when Texas passed an

amended version of the Irrigation Act, which “ceased to recognize riparian rights that were not

already vested and prohibited their creation by state land patents issued after July 1, 1895. That

provision of the 1913 act remains part of the Texas Water Code today.” Skillern I, at 29 (Irrigation

Act resulted in dual system because it protected prior riparian rights while enforcing appropriation

system). Therefore, unless a landowner can trace his chain of title to a grant from the Mexican or

Spanish governments between 1823-1840, or to a grant from the State of Texas between 1840-1895,

he cannot establish that his land is vested with riparian or littoral rights. Id. at 62.

Furthermore, in an attempt to alleviate the complications resulting from its dual

system, in 1967 Texas passed the Water Rights Adjudication Act, which required a Texas landowner

claiming a right to use the water to file a sworn statement, participate in an evidentiary hearing, and

obtain a certificate of adjudication. Tex. Water Code Ann. §§ 11.301-.341 (West 2000 & Supp.

2004-05); Skillern I, at 48. With narrow exceptions for domestic and livestock uses, any person who

failed to timely file a claim with the Commission was deemed to have abandoned or waived his right

to use the water, whether the nature of his claim was riparian or appropriation. In re Adjudication

of Water Rights of Upper Guadalupe Segment, 642 S.W.2d at 442; see also Tex. Water Code Ann.

12 § 11.307 (West 2000) (claim must be filed within time prescribed by notice of adjudication). The

Water Rights Adjudication Act is now the “exclusive means by which [water] rights may be

recognized” and, in absence of a certificate of adjudication, Texas courts do not have the power to

“grant in equity certain water rights not otherwise recognized by law.” In re Adjudication of Water

Rights of Brazos III Segment, 746 S.W.2d at 210; see generally Hans W. Baade, The Historical

Background of Texas Water Law—A Tribute to Jack Pope, 18 St. Mary’s L. J. 1 (1986).

Assuming the landowner can establish a proper chain of title and/or certificate of

adjudication, there are also physical attributes that must be present in order for the land to be

considered riparian or littoral. Most clearly, the land must be adjacent to the water. Richter, 174

S.W. at 286 (“riparian rights depend upon the ownership of land which is contiguous to and touches

upon the water”); Watkins Land Co., 86 S.W. at 735; Hutchins, at 330-32 (“loss of contact with the

stream brings loss of riparian rights”). Additionally, the adjacent water must be a “natural,” not an

“artificial,” body. Arseneaux, 297 S.W. at 229 (water must travel along the normal course of

migration and come to rest in a basin made by nature for the purpose of holding water); see also In

re Adjudication of Water Rights of Brazos III Segment, 746 S.W.2d at 210; Harrell v. Vahlsing, Inc.,

248 S.W.2d 762 (Tex. Civ. App.—San Antonio 1961, writ ref’d n.r.e.) (riparian rights do not attach

to artificial bodies of water; one only has rights to use such water if by grant or prescription).

Finally, riparian or littoral rights only attach to the “normal flow” of the waters, as opposed to

“floodwaters.” Motl, 286 S.W. at 470; Roberson v. Red Bluff Water Power Control Dist., 142

S.W.2d 248, 254 (Tex. Civ. App.—El Paso 1940, no writ) (waters impounded by dam are

13 floodwaters and, hence, do not confer riparian rights); see Ira P. Hildebrand, Rights of Riparian

Owners, 6 Tex. L. Rev. 19, 37 (1927) (discussing lack of riparian rights in flood waters).

In sum, for a lakefront property owner to establish that his land is vested with littoral

rights, he must (1) be able to trace his title back to a grant from the sovereign between 1823-1895

and/or present a certificate of adjudication from the State, and (2) establish that his land, as granted

in the deed, borders a natural lake with a “normal flow” of water.

The Cumminses do not dispute that their chain of title originated with a grant from

the State of Texas in 1904; their expert land surveyor testified to this in his affidavit. Without

addressing the fact that Texas ceased recognizing common law riparian rights in grants of waterfront

property from the sovereign after 1895, the Cumminses claim only that, because the 1904 grant

mentions “the meanders of the Colorado River” in its property description, they have riparian or

littoral rights based on their ownership of land that has “lateral contact with the water.” That the

Cumminses cannot trace their title back to a grant from the sovereign prior to 1895 is sufficient to

establish that their land is not vested with littoral rights.6 See Watkins Land Co., 86 S.W. at 735.

In the alternative, however, the District established that the Cumminses are not littoral owners

because their chain of title did not convey land appurtenant to a natural lake.7

6 In its brief, the LCRA contended that, “[b]ecause the Cummins’ deeds deraign title from the sovereign after 1895, the common law rights they claim in this case—whether they are designated as riparian or littoral—do not exist as to the property in question. This historical fact alone should be dispositive of any claims they may make to a riparian right, unless they can show a permit from the State for a water right in the waters of Lake Travis.” 7 Neither party addressed what impact the Water Rights Adjudication Act has on the Cumminses’ claim and nothing in the record demonstrates that the Cumminses or their predecessors obtained a certificate of adjudication entitling them to water rights. The Texas Supreme Court has clearly stated that the Act is the “exclusive means by which [water] rights may be recognized” and,

14 The Cumminses’ chain of title began with a 1904 grant of land from the State to

Leonard Eck, who then conveyed the land to Oscar Collier in 1927. The 1927 deed used the “bank

of Colorado River” and “down said river with its meanders” to describe the land’s boundaries.

Construction of the Marshall Ford Dam (now Mansfield Dam) began in 1937; after the erection of

the dam, the relevant portion of the Colorado River was transformed into Marshall Ford Lake (now

Lake Travis), which is an artificial lake specifically designed to contain floodwaters. Based on these

changes to the body of water affronting Collier’s land, when he transferred this parcel to the Cherico

family in 1938, the perimeter was described as the “water level line of Marshall Ford Lake.” This

same description was used in later deeds from the Chericos to the Bradfield/Brush families in 1943

and from Bradfields/Brushes to Nell Bradfield in 1948. The land was eventually conveyed to Betty

Ann Bradfield Cummins in 1975 from Nell Bradfield, her mother; the grant referenced the 1948 deed

for a description of the land.8

Although the Cumminses’ chain of title references the waterline as a boundary, it does

not establish that the Cumminses’ land is vested with littoral rights because—in addition to the fact

that their title failed to originate prior to 1895—the adjacent water referenced in the deeds is an

artificial lake, rather than a natural body of water, and the waters filling that lake are not considered

its “normal flow,” but are instead floodwaters. See Arseneaux, 297 S.W. at 229 (riparian or littoral

in the absence of a certificate of adjudication, Texas courts do not have the power to “grant in equity certain water rights not otherwise recognized by law.” In re Adjudication of Water Rights of Brazos III Segment, 746 S.W.2d 207, 210 (Tex. 1988). 8 Nell Bradfield also granted Betty Cummins a 9.354 acre tract that she had acquired from Charles A. McCormick in 1945. Although the 1975 grant describes this land as “lying south” of the tract conveyed from the Chericos to the Bradfield/Bush families, nothing else in the record provides a description of this land.

15 rights only attach to natural bodies of water); Motl, 286 S.W. at 740 (no riparian rights in

floodwaters); Roberson, 142 S.W.2d at 249, 254 (construction of dam across natural river resulted

in creation of artificial lake, and waters impounded by dam are floodwaters). Even though the 1927

deed from Eck to Collier used the Colorado River as a boundary description, this does not mean that

the Cumminses’ subsequent deed granted land adjacent to a natural body of water. See Watkins Land

Co., 86 S.W. at 735 (land must be “continuously riparian” since the time it was granted by the

sovereign); Hutchins, at 330 (“loss of contact with the stream brings loss of riparian rights”).

Following the 1927 deed, the water was transformed from a natural to an artificial body as the result

of a man-made dam. At the time of the grants from the Chericos in 1938, from the

Bradfields/Brushes in 1948, and from Nell Bradfield to Mrs. Cummins in 1975, the waters abutting

the Cumminses’ property comprised the Marshall Ford Lake/Lake Travis, not the Colorado River.

Given that the Cumminses cannot trace their title back to a grant from the sovereign between 1823-

1895, and that the Cumminses’ grant only references an artificial body of water, the Cumminses’

land is not vested with littoral rights.

Our holding applies to all six lots of the Cumminses’ land because it is based on the

chain of title, which is the same for the entire property, given that the Cumminses obtained the land

as one parcel and later subdivided it into six lots. Thus, the Cumminses’ second issue, claiming that

they have littoral rights in all six lots, is overruled, and we do not reach their fourth issue, asserting

in the alternative that they have littoral rights in Lots 1-5.9

9 The Cumminses based this alternative argument on a boundary agreement, executed between themselves and the District, pertaining to the boundary lines of Lot 6. They asserted that even if this agreement eliminated their littoral rights in Lot 6, they maintained littoral rights in the

16 Are the Cumminses entitled to construct a boat dock?

Although the Cumminses generally asserted on appeal that they have littoral rights

to “use their land as waterfront property,” their claims at the declaratory judgment and summary

judgment phases were more specific. In response to the District’s denial of their application for a

boat dock license, the Cumminses initially urged that they had littoral rights entitling them “to

construct docks and other improvements.” The District, therefore, sought and obtained summary

judgment on the basis that the Cumminses have no property right entitling them to construct a boat

dock on the submerged lands that are held by the State in trust for the public and are validly

regulated by the water control and improvement district, as an agent of the State, for the purpose of

providing safe drinking water to the public.

(1) Uses littoral owners are entitled to make of the water

It is well established that riparian and littoral owners merely have a privilege to use

and enjoy the water flowing next to their land and do not have any possessory interest in the water.

Skillern I, at 29. The right to use the water has been “termed a simple usufruct in the water as it

passes along.” Hutchins, at 302; see also In re Adjudication of Water Rights of Upper Guadalupe

Segment, 642 S.W.2d at 444. The rights to use and enjoy the adjacent water are primarily for natural

purposes, such as the “right of access” and “for the support of human and animal life and to answer

the demands of other domestic uses”; these are preferred over uses of the water for irrigation and

other five lots. Because our analysis concludes that, regardless of the boundary agreement, the Cumminses have no littoral rights in any of their land based on the chain of title, we need not consider this alternative claim.

17 manufacturing. Hollan v. State, 308 S.W.2d 122, 125 (Tex. Civ. App.—Fort Worth 1957, writ ref’d

n.r.e.) (right of access); Watkins Land Co., 86 S.W. at 735 (domestic uses preferred); see also State

v. Valmont Plantations, 346 S.W.2d 858, 855 (Tex. Civ. App.—San Antonio 1961), aff’d, 355

S.W.2d 502 (Tex. 1962) (traditional rights conferred to riparian or littoral owners include use of

water for drinking, fishing, navigation, travel, and domestic purposes). Although a littoral or riparian

owner may be able to establish rights to use the water for recreational purposes, the legislature has

determined that these uses are not preferred when the water is regulated by a water district. Tex.

Water Code Ann. § 51.184 (West 2000) (uses of district water listed in order of preference, with use

for “pleasure and recreation” appearing last).

It is also well established that riparian or littoral uses must be “reasonable.” Motl,

286 S.W. at 470. Riparian or littoral owners must not exercise their rights in a manner that is

detrimental to other, correlative owners or to the public generally. Watkins Land Co., 86 S.W. at

735. To ensure that water rights are exercised in a reasonable manner, riparian and littoral owners

are subject to the State’s police powers, and any uses of the water must be done in accordance with

the valid regulations of the governing authority. See Ulbricht v. Friedsam, 325 S.W.2d 669, 673

(Tex. 1959). Moreover, “courts have ample authority to . . . regulate the manner of using the water.”

Watkins Land Co., 86 S.W. at 736. Even if the Cumminses had littoral rights in their land, they

would not be entitled to construct a private, recreational boat dock because that would not be a

“reasonable use” of water regulated by a water control and improvement district.

The Cumminses cite City of Corpus Christi v. Davis for the proposition that littoral

rights include the “right to build wharves, docks, and piers.” 622 S.W.2d at 646. In Davis the court

18 held that the landowners had a right to cultivate an oyster bed, and the statement regarding docks and

piers was dicta. The majority of cases do not include the right to build boat docks as a littoral or

riparian right. See, e.g., Shively v. Bowlby, 152 U.S. 1, 14 (1984) (waterfront property owners have

no title in adjacent submerged lands and no right to build upon those lands). Furthermore, any such

rights an owner may have can only be exercised in a reasonable fashion and are subject to the State’s

police powers. Ulbricht, 325 S.W.2d at 673. Davis does not support the claim that an owner of non-

littoral land adjacent to a water district is entitled to construct a boat dock in violation of a water

district’s regulations, which protect the public’s interest in safe drinking water.

(2) Littoral boundaries and the public trust doctrine

The District also established that, regardless of the littoral rights issue, it properly

denied the Cumminses’ application for a boat dock license on the basis that the Cumminses have no

rights in the submerged lands of Lake Travis: the Cumminses’ boundary line is the water’s edge;

the State holds title to the land and waters beyond that in trust for the public; and, in accordance with

its duties to conserve and maintain those natural resources, the State has authorized the District to

regulate, treat, and improve that water for the public.10

10 Aside from the well-established law that waterfront property owners only take title to the water’s edge while the State maintains ownership of the submerged lands and waters as trustee for the public, Maufrais v. State, 180 S.W.2d 144, 148 (Tex. 1944), the parties further dispute the Cumminses’ boundary line based on the Cumminses’ chain of title and a boundary agreement executed between the parties in 1999. The District argues that these documents establish that the Cumminses do not own and, hence, have no rights to use the land beyond the 670-foot contour line. The Cumminses assert that the exact boundary line is immaterial; they claim that (1) they have littoral rights and (2) the boundary agreement did not alter this fact.

19 As with all navigable bodies of water within Texas, the State owns the beds and

waters of Lake Travis: “The water of the ordinary flow, underflow, and tides of every flowing river,

natural stream, and lake, and of every bay or arm of the Gulf of Mexico, and the storm water,

floodwater, and rainwater of every river, natural stream, canyon, ravine, depression, and watershed

in the state is the property of the state.” Tex. Water Code Ann. § 11.021(a) (West 2000); see also

Frank F. Skillern, II Texas Water Law, at 128 (1991) (hereinafter Skillern II). According to the

supreme court, the “rule has long been established” in this State that “the State is the owner of the

soil underlying the navigable waters, such as navigable streams, as defined by statute, lakes, bays,

inlets, and other areas withing the tide water limits within its borders.” City of Galveston v. Mann,

143 S.W.2d 1028, 1033 (Tex. 1940). Given that the State holds title to the beds and waters of all

navigable bodies, the boundaries of adjacent lands necessarily end at the water’s edge. Maufrais v.

State, 180 S.W.2d 144, 148 (Tex. 1944) (even if adjacent land is riparian, ownership ends at the

banks, and State owns underlying soil); Welder, 196 S.W. at 870, 872 (deed using waterline to

describe boundary only grants to water’s edge, not to middle of body, and State maintains title to

lake beds and waters); City of Port Isabel, 729 S.W.2d at 942 (as shoreline adjusts over time, so does

landowner’s boundary; wherever location of shoreline is at any given time represents boundary of

We have already addressed that the Cumminses’ land is not vested with littoral rights because their chain of title cannot be traced to a grant from the sovereign before 1895 and because their grant did not convey land adjacent to a natural body of water. Given this, and that the law establishes that the Cumminses have no rights to build permanent structures on state-owned trust property, we need not determine the precise boundaries of the Cumminses’ property. See City of Port Isabel v. Missouri Pac. R.R. Co., 729 S.W.2d 939, 942 (Tex. App.—Corpus Christi 1987, writ ref’d n.r.e.) (boundary between private land and public water adjusts over time; wherever shoreline is at any given time represents boundary because State always holds title to submerged lands and public waters).

20 land). The owners of land abutting a navigable body of water do “not [have] a title in the soil below

high water mark, nor a right to build thereon, but a right of access only, analogous to that of an

abutter upon a highway.” Shively, 152 U.S. at 14.

The purpose of the State maintaining title to the beds and waters of all navigable

bodies is to protect the public’s interest in those scarce natural resources. See Hall, 57 S.W. at 565.

“From its earliest history this State has announced its public policy that lands underlying navigable

waters are held in trust by the State for the use and benefit of all the people.” State v. Bradford, 50

S.W.2d 1065, 1069 (Tex. 1932) (navigable waters include lake waters); see also Tex. Water Code

Ann. § 11.021(a) (State holds title to lake waters in trust for public). The importance of the State’s

duty to protect its natural resources is demonstrated by article 16, section 59 of the Texas

Constitution, which provides that “[t]he conservation and development of all of the natural resources

of this State, . . . and the preservation and conservation of all such natural resources of the State are

each and all hereby declared public rights and duties.” Tex. Const. art. XVI, § 59; see also Barshop,

925 S.W.2d at 623 (“[c]onservation of water has always been a paramount concern in Texas”); In

re Adjudication of Water Rights of Upper Guadalupe Segment, 642 S.W.2d at 445 (State has

constitutional duty to conserve water as a precious resource).

Based on the fact that the State owns the water and submerged lands over which the

Cumminses sought to construct a private, recreational boat dock, the District was authorized to deny

the Cumminses’ application for a license. In City of Galveston v. Mann, the supreme court held that

the City was not entitled to construct a boat dock in the Gulf of Mexico because it would encroach

on the submerged lands, which were State property. 143 S.W.2d at 1034 (The erection of the dock

21 “would be an encroachment, at the least, upon the prima facie property rights of the sovereign. . . .

Such a structure in legal phraseology would constitute a purpesture,” whether it would “obstruct

navigation or otherwise.”).

The District’s denial of the license is further justified by the fact that the State, as

trustee, is entitled to regulate those waters and submerged lands to protect its citizens’ health and

safety and to conserve its natural resources. Goldsmith & Powell v. State, 159 S.W.2d 534, 535

(Tex. Civ. App.—Dallas 1942, writ ref’d) (State can take action to prevent pollution of trust

resources). Even if waterfront land is privately owned, it is still subject to regulation under the

State’s police powers. Parker v. El Paso Water Improvement Dist. No. 1, 297 S.W. 737, 740-42

(Tex. 1927). The rights of individual landowners “must yield . . . or be modified by . . . what is

declared upon the whole to be for the public benefit,” especially when the regulation affecting the

owner’s property is “essential or material for the prosperity of the community,” and is one “in which

all of the landowners have to a certain extent a common interest,” and that “cannot be accomplished

without the concurrence of all or nearly all of [the adjacent land] owners by reason of the peculiar

natural condition of the tract.” Id. at 742 (owners must exercise rights in accordance with regulations

of water district).

The State has enacted several provisions of the water and administrative codes to

accomplish its duties as trustee for the public,11 and has statutorily established various water districts

to act as its agents in regulating portions of state-owned natural resources and trust properties. The

11 See, e.g., Tex. Water Code Ann. §§ 1.003 (West 2000) (public policy of State to conserve natural resources), 26.023 (Commission to set and enforce water quality standards) (West 2000); 30 Tex. Admin. Code §§ 307.1-.10 (2004) (Texas Surface Water Quality Standards).

22 water code grants districts all the “functions, powers, authority, rights and duties that will permit

accomplishment of the purposes for which it was created or the purposes authorized by the

constitution, this code, or any other law.” Tex. Water Code Ann. § 49.211(a) (West Supp. 2004-05).

This includes the power to “adopt and enforce reasonable rules and regulations to . . . preserve the

sanitary condition of all water controlled by the district” and to accomplish its purposes “by any

practical means.” Id. §§ 51.121, .122, .127 (West 2000 & Supp. 2004-05). Specifically, the Texas

Administrative Code mandates that water control and improvement districts install raw water intakes

to secure water of the “best quality available.” 30 Tex. Admin. Code § 290.41(e)(2). The code

specifies that the “intakes shall not be located within 1,000 feet of boat launching ramps, marinas,

[or] docks . . . accessible by the public” and that “all recreational activities” shall not occur within

a 200-foot “restricted zone” around the intake. Id. Such districts are expressly given the authority

to enact “[r]egulations governing this zone” and provisions “for the strict enforcement of such

ordinances and regulations.” Id. Pursuant to the water and administrative codes, the Travis County

Water Control and Improvement District No. 17 enacted Regulation 6.5.3.2 to prohibit “[a]ll activity

not related to the maintenance of the barge or intake . . . within 200 feet” and “[a]ll recreational

boating activity within 1000 feet.” Reg. 6.5.3.2.

These regulations ensure an adequate supply of safe drinking water for the public; as

in Parker, they benefit the entire community, in which the individual property owner shares a

common interest, and they require cooperation of all adjacent owners in order to function properly.

See 297 S.W. at 742. The Cumminses, just as all members of the surrounding community, benefit

from the District’s production of safe drinking water, and the record does not disclose that these

23 regulations are being enforced against the Cumminses any differently than they are against any other

user of Lake Travis. The regulations establishing a 200-foot clear zone and preventing recreational

boating activity within 1000-feet of the intake barge apply equally to all persons. The Cumminses’

ownership of waterfront property is subject to regulation under the State’s police powers and, hence,

their rights must yield to the regulations that serve the public’s interest in protecting trust property.

See id.

The District, therefore, established that it was authorized to deny the Cumminses’

application for a boat dock license on multiple grounds. First, based on their chain of title, the

Cumminses’ property is not vested with littoral rights and, even if it were, littoral rights do not entitle

an owner to construct recreational boat docks. Second, the Cumminses have no rights to construct

a boat dock in the desired location because those waters and submerged lands are state-owned trust

property and are regulated by a water control and improvement district for the purpose of providing

safe drinking water to the public.

Easement and Quasi-Easement

In their fifth issue, the Cumminses assert as an alternative argument that, even if they

do not have littoral rights to make use of their land “as waterfront property,” they possess an

easement or quasi-easement entitling them to do so.12 The Cumminses base this claim on language

12 In their petition for declaratory judgment, the Cumminses specifically asserted that they had an easement conferring “the right to build, construct, and maintain on their lakefront land at all times such buildings, structures and facilities as are useful and appropriate for lake-front property.” Accordingly, the District sought and obtained summary judgment on the basis that the Cumminses “do not have an easement or quasi-easement which would allow them to build or locate a boat dock at or below the 670-foot contour line.”

24 in their chain of title and testimony in their affidavits; they urge that these documents establish that

the grantors intended the land to be used as waterfront property and that the property has historically

been used for boating, fishing, and swimming. The District contends that the Cumminses’ deeds

failed to reserve an express easement and that the Cumminses have not demonstrated a continuous

and necessary use of the land for recreational boating in order to support an implied easement.

An express easement is an interest in land to which the statute of frauds applies. West

Beach Marina, Ltd. v. Erdeljac, 94 S.W.3d 248, 264 (Tex. App.—Austin 2002, no pet.). For the

statute of frauds to be satisfied, the intent of the parties, the essential terms of the easement, and an

adequate description of the easement’s location must be apparent from the face of the document,

without reference to extrinsic evidence. Id. at 265. If the court cannot determine these elements with

reasonable certainty, then no express easement is conveyed. Id. at 264. An easement’s express

terms, which are to be given their plain meaning, define the purposes for which the easement holder

may use the property. Marcus Cable Assocs. v. Krohn, 90 S.W.3d 697, 701 (Tex. 2002); Coleman

v. Forister, 514 S.W.2d 899, 903 (Tex. 1974). The easement holder is only entitled to do what is

“reasonably necessary” to fairly enjoy the rights that were expressly granted, and if a purpose was

not expressly provided for in the grant, it is not permitted. Krohn, 90 S.W.3d at 701. This is because

an easement is a nonpossessory interest, allowing its owner to use the land only for specified

purposes, rather than a possessory interest, which would allow its owner to make any use of the

property. Id. at 702.

As support for their claim of an express easement, the Cumminses rely on a deed

dated July 20, 1940, executed from the Collier family to the LCRA. The deed granted the LCRA

25 “a perpetual easement and right to inundate, submerge and overflow all of our certain tracts of land

[lying between the 670 foot contour elevation and the 715 foot contour elevation] . . . by virtue of

the construction, erection, maintenance, and operation of a dam. . . .” The deed also included an

express reservation of rights for the Colliers and their assignees by stating that it was

executed upon condition that the grantors herein, their heirs and assigns, shall have free access at all times to the lake of water formed by the Marshall Ford dam . . . and the right to use the water from said lake . . . for domestic purposes and shall have the right to go upon, pass over and across any and all parts of the land conveyed herein as a means of ingress and egress to the water of said lake. . . .

The language of this reservation reserves only basic rights to access the water, for

domestic use, and for ingress and egress. Those rights, as with all water rights, must be exercised

reasonably—in a manner that does not harm other waterfront owners or the general public—and in

accordance with the State’s police power regulations. Ulbricht, 325 S.W.2d at 673; Watkins Land

Co., 86 S.W. at 735. Beyond those basic rights, this reservation does not expressly provide a right

to use the land submerged at or beyond the 670-foot contour line for recreational purposes, nor the

right to build and maintain structures on that land. Mooring a boat dock on the land at issue is not

“reasonably necessary” in order to achieve the rights that were expressly granted.

Regardless of what rights this reservation conveys, the District contends that the

Cumminses are not entitled to any of them because the Collier’s reservation was not transferred

through the Cumminses’ chain of title. Prior to executing the 1940 deed, on February 23, 1938, the

Colliers transferred part of their land to the Chericos. Although the 1938 transfer described the

lake’s “water level line” as a boundary, it did not grant the Chericos any express rights to use or

26 access the water. The Cherico tract was later transferred to the Bradfield and Brush families, and

then to Nell Bradfield, from whom Betty Ann Bradfield Cummins inherited the land in 1975. When

the Colliers executed the 1940 deed to the LCRA, they specifically excluded from its terms “certain

small tracts of lots which were sold by grantors . . . prior to May 28, 1940,” such as the Cherico tract.

Because the Cherico tract—which eventually became the Cumminses’ property—was out of the

Colliers’ possession at the time the Colliers reserved their specific water rights, and because the

Colliers expressly stated that their reservation of rights did not apply to previously sold tracts, the

1940 deed does not provide any evidence of an express easement for the Cumminses to “use their

land as waterfront property,” or to moor a boat dock on the District’s land. Furthermore, the 1938

Cherico deed, as well as subsequent transfers from the Chericos to the Bradfields and Cumminses,

did not expressly confer such an easement to the Cumminses. Thus, the District conclusively

established the lack of an express easement.

In the absence of an express easement, the Cumminses alternatively claim that they

possess an implied easement. To demonstrate the existence of an implied easement, they must show

that the land has been apparently, continuously, and necessarily used for the desired purpose. Drye

v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 207 (Tex. 1963). These phrases carry precise legal

meanings: “apparent” means that the use must have existed at the time of the grant, “continuous”

denotes conspicuousness and permanency, and “necessary” refers to uses that are essential for the

easement owner to make proper use of his land. Id. at 207-08. Typically, implied easements are

only recognized for economic or physical necessities, and not for uses that are merely desirable or

recreational. Id. at 208. Finally, no easement will be implied if its purpose would be against public

27 policy. Carrithers v. Terramar Beach Cmty. Improvement Ass’n, 645 S.W.2d 772, 774 (Tex. 1983)

(easement over submerged land in Gulf of Mexico not implied because it conflicted with public

policy of State having sole control over those waters and submerged lands, held in trust for public).

As support for their implied easement claim, the Cumminses point to the 1940 Collier

reservation of rights and to Betty Ann Bradfield Cummins’s affidavit. Because the rights reserved

by the Colliers did not transfer through the Cumminses’ chain of title, the 1940 deed does not

support the Cumminses’ claim. Further, the District challenged Mrs. Cummins’s affidavit—which

stated that her “family has had boats and boat docks in years past in the water adjacent to the

property and we have fished in the water and used it for swimming”—by urging that no boat dock

has been moored on the submerged land during the thirty years in which that area has been subject

to the District’s regulation and that, given the indefinite nature of Mrs. Cummins’s statements, her

affidavit failed to establish a genuine issue of material fact. Even in the face of this challenge, the

Cumminses offered no probative evidence of their claim that boat docks had previously existed on

the property. The trial court’s duty is to determine if any genuine issues of material fact remain, not

to weigh the evidence or determine its credibility. Trison Inv. Co. v. Woodard, 838 S.W.2d 790, 792

(Tex. App.—Dallas 1992, writ denied). Mrs. Cummins’s statements lacked specificity and were not

sufficient to raise a genuine issue of material fact as to whether the Cumminses’ property has been

apparently, continuously, and necessarily used for the purpose of a recreational boat dock. See Ford

Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004); Ryland Group, Inc. v. Hood, 924 S.W.2d

120, 122 (Tex. 1996).

28 The Cumminses also rely on Ulbricht v. Friedsam for the notion that an easement

should be implied on their behalf “for access to and continued use of the water.” 325 S.W.2d at 676-

77. In Ulbricht, the property owners sought an implied easement to access the waters of Lake

Buchanan, to allow their cattle to graze along the shoreline, and for the right to construct structures,

which would be moored on the submerged lands regulated by the LCRA below the 1020-foot

contour line, in order to fully enjoy their land as lakefront property. Id. at 675. The court took

judicial notice of the necessity in allowing livestock to access water and noted that neighboring

property owners had continuously made apparent use of their land for boat docks and recreation,

without objection from the LCRA. Id. The court then recognized an implied easement for the

property owners to access the water, to graze their cattle, and to use and enjoy the land below the

1020-foot contour line, limited to the extent that the uses were reasonable and necessary, and subject

to the rights of the LCRA. Id. at 677.

Ulbricht does not support the Cumminses’ position for two reasons. First, in Ulbricht

there was an established use of the land for boat docks and recreational activity, and the LCRA,

which owned the submerged land, had allowed this use to continue for an extended time period.

Here, the District denied the Cumminses’ application for a license to build a boat dock and has not

allowed a recreational boat dock to be moored within the regulated zones of its water treatment

facility. Second, the Ulbricht court, even in implying the easement, recognized that the LCRA had

superior rights to regulate the submerged land. Based on this and the fact that an easement shall not

be implied when its purpose would contravene public policy, there can be no implied easement for

the Cumminses to moor a recreational boat dock in the land, which is owned by the State and

29 regulated by the District for the purpose of providing safe water to the public. At most, Ulbricht

supports the Cumminses’ claim that they have basic rights to use and access the water. However,

since all uses of water must be conducted in a reasonable manner and in accordance with police

power regulations, the Cumminses are not entitled to act in any manner contrary to the District’s

regulations that would cause harm to the public’s supply of safe drinking water. See id. at 673;

Watkins Land Co., 86 S.W. at 735.

Because the District negated that any genuine issues of material fact remain about the

existence of either an express or an implied easement, the Cumminses’ fifth issue is overruled.

Inverse Condemnation

The Cumminses assert in their first issue that they have suffered an inverse

condemnation—a taking for which they are entitled to be compensated—pursuant to either the

United States Constitution or the Texas Constitution. See U.S. Const. amend V; Tex. Const. art. I,

§ 17. The Cumminses claim that the District’s regulation prohibiting “[a]ll activity not related to

the maintenance of the barge or intake” within 200 feet of the intake barge constitutes a per se taking

of the portion of their land that falls within the 200-foot radius, which is, essentially, the shoreline

of Lot 6. Alternatively, the Cumminses claim that the 200-foot regulation constitutes a case-specific

taking of “their land, not [limited to] any particular lot.” The Cumminses additionally claim to have

suffered a per se taking of their property based on the District’s requirement that warning signs be

placed along the shoreline; this argument, too, is made in terms of their entire parcel of land. The

District counters that no taking has occurred and that, aside from the denial of the boat dock license,

the Cumminses have failed to present a ripe takings claim.

30 “[N]o person’s property shall be taken, damaged or destroyed for or applied to public

use without adequate compensation being made . . . .,” Tex. Const. art. I, § 17, “nor shall private

property be taken for public use without just compensation.” U.S. Const. amend. V. A property

owner can establish a taking with evidence that a governmental regulation has detrimentally

impacted the use of his land; this is considered an inverse condemnation. Mayhew v. Town of

Sunnyvale, 964 S.W.2d 922, 933 (Tex. 1998).

The basic test is whether the regulation “goes too far” in restricting the permissible

uses of the property or in decreasing its value. Sheffield Dev. v. City of Glenn Heights, 140 S.W.3d

660, 670 (Tex. 2004). If the regulation denies the owner “all economically beneficial or productive

use of [the] land,” leaving him with only “a token interest,” or if the regulation results in a “physical

invasion” of private property, then it may be considered a per se taking. Id.; see also Lucas v. South

Carolina Coastal Council, 505 U.S. 1003, 1016 (1992). Otherwise, the court must engage in a case-

specific analysis of whether a taking has occurred, as guided by the Penn Central factors: (1) “the

economic impact of the regulation on the claimant,” (2) “the extent to which the regulation has

interfered with distinct investment-backed expectations”; and (3) “the character of the governmental

action.” Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978); see also Palazzolo

v. Rhode Island, 533 U.S. 606, 617, 631 (2001) (“these factors do not comprise a formulaic test”).

Whether the landowner claims a per se or a case-specific taking, our inquiry can be

divided into two basic parts: first, whether the regulation constitutes a taking and, if so, what

economic impact results from that taking. City of Austin v. Travis County Landfill Co., 73 S.W.3d

234, 241 (Tex. 2002). The court cannot analyze the economic-impact prong without first answering

31 the ultimate question of whether the regulation has substantially interfered with the landowner’s use

and enjoyment of the property. Id. To establish this, a landowner must put forth specific evidence

of a direct, immediate, and substantial impact that the regulation has had on the land, making it

unusable for its intended purposes. Id. at 240. The landowner must “quantify the risks and the

hazards or specifically describe how the [regulation] interfered” with the use and enjoyment of the

land; “nonspecific allegations [that the regulation resulted in increased costs and risks on the land]

are not enough to establish a taking.” Id. at 243. An “essential prerequisite” to a regulatory takings

claim is a “final and authoritative determination of the type and intensity of development legally

permitted on the subject property. A court cannot determine whether a regulation has gone ‘too far’

unless it knows how far the regulation goes.” City of El Paso v. Madero Dev. & Constr. Co., 803

S.W.2d 396, 400 (Tex. App.—El Paso 1991, writ denied). This question “cannot be disposed of by

general propositions.” Id.

Not every regulation of private land constitutes a compensable taking. Travis County

Landfill Co., 73 S.W.3d at 242. Compensation is not required if the property owner’s loss is

occasioned by the proper exercise of police power. Lombardo v. City of Dallas, 73 S.W.2d 475,

478-79 (Tex. 1934). The “contemporary understanding” is that the government has a “broad realm”

in which it “may regulate without compensation.” Lucas, 505 U.S. at 1024. Although there is “no

bright line rule” for establishing when an exercise of police power is proper—and hence, not a

taking—there are two related factors to be considered in analyzing this question of law. City of

College Station v. Turtle Rock Corp., 680 S.W.2d 802, 804 (Tex. 1984). A police power regulation

does not constitute a taking if (1) it is adopted to accomplish a legitimate goal that is “substantially

32 related” to the health, safety, or general welfare of the people, and (2) it is reasonable, not arbitrary.

Id.; see also Skillern II, at 170 (regulation supporting conservation of natural resources, such as water

held for public trust, “is not a ‘taking’ within the proscription of the 5th and 14th amendments”).

The theory underlying this rule is that it would not be logical to compensate a private owner for the

impact a regulation has on his land where the owner, as a member of the general public, also benefits

from the regulation. Rayburn, § 2.00, at 2. Furthermore, to require the State to compensate a private

property owner each time a regulation, which was enacted for the public good, “curtail[ed] some

potential for the use or economic exploitation of private property . . . would effectively compel the

government to regulate by purchase.” Estate of Scott v. Victoria County, 778 S.W.2d 585, 590 (Tex.

App.—Corpus Christi 1989, no writ) (emphasis omitted).

The 200-foot regulation

The Cumminses first challenge the District’s 200-foot regulation on the basis that it

constitutes a per se taking of “the portion of [their] property within 200 feet of the intake [barge].”

They claim that, because the regulation prohibits “all activity” within a 200-foot radius, it deprives

them of all of their property rights in that land and prevents them from making any economically

beneficial or productive use of it. Alternatively, the Cumminses claim that the regulation has had

a detrimental economic impact on their land and has interfered with their investment-backed

expectations, therefore entitling them to compensation under a case-specific takings analysis. The

District conclusively established that its 200-foot regulation does not constitute a taking of the

Cumminses’ property—pursuant to either a per se or a case-specific analysis—because it has not

33 substantially interfered with the Cumminses’ use and enjoyment of their land and because it is a

legitimate exercise of the State’s police power.

Regarding either the specific portion of land encompassed by the 200-foot regulation

or their parcel as a whole, the Cumminses have not demonstrated any particular activity or land use

that has been “substantially interfered” with as a result of the District’s 200-foot regulation. See

Travis County Landfill Co., 73 S.W.3d at 241, 243 (specific allegations of direct, immediate, and

substantial impact required to establish regulatory taking). The Cumminses only assert that the

regulation prevents “all activity” on the land, which could “presumably includ[e] walking on it or

using it in any way.” (Emphasis added.) The Cumminses have not alleged that the District has

actually prohibited them from doing anything on their land in its entirety or within the 200-foot

zone.13 See Madero Dev. & Constr. Co., 803 S.W.2d at 400 (court cannot determine if regulation

goes “too far” without final and authoritative determination of restricted activity).

The Cumminses’ argument—that a taking has occurred because “presumably all

activity” could be prevented by the regulation—not only employs a hypertechnical reading, it also

is forward-looking and does not provide sufficient evidence of a ripe controversy. See Barshop, 925

13 The Cumminses agreed at oral argument that the only activity they have been prohibited from doing is constructing a boat dock over the waters and submerged lands of Lake Travis; this issue is ripe based on the District’s denial of the Cumminses’ desired boat-dock license. On appeal, however, the Cumminses failed to assert the denial of their license as a basis to support their takings claim. In any event, the denial does not constitute a taking of the Cumminses’ land because the activity prohibited would have occurred on property that is held by the State in trust for the public, to which the Cumminses have no rights, and because the regulation, which ensures an adequate supply of safe drinking water for the public, is a legitimate exercise of police power. City of College Station v. Turtle Rock Corp., 680 S.W.2d 802, 804 (Tex. 1984) (regulation not a taking if it is reasonable and substantially related to protecting health, safety, or general welfare).

34 S.W.2d at 629 (courts are to presume constitutionality of regulations and avoid overly literal

constructions); City of El Paso, 803 S.W.2d at 400 (ripeness). Furthermore, the assertion that “all

activity” on their land has been prohibited is contrary to the District’s repeated statements, made in

public records,14 that it “is only prohibiting the Cummins family from mooring or building a boat

dock on District property below 670 feet and is only regulating boating activity within a 200 foot

radius of the intake barge to the extent that the 200 foot radius covers only District property.”

Thus, the District established that its 200-foot regulation has not substantially

interfered with the Cumminses’ use and enjoyment of their land, whether considering Lot 6 alone

or the entire parcel. Because no direct, immediate, or substantial impact has occurred, the 200-foot

regulation does not constitute either a per se or a case-specific taking and, as such, we do not reach

the “economic impact” prong of the inverse condemnation inquiry. See Travis County Landfill Co.,

73 S.W.3d at 241 (ultimate question is whether regulation substantially interferes with land).15

14 The District expressed its intent in a letter to the trial judge, supplementing the hearing testimony, and included similar statements in its affidavit testimony, its appellate brief and at oral argument. 15 However, the District additionally established that, even if the 200-foot regulation economically impacted the Cumminses’ land, they would not be entitled to compensation because the regulation was validly enacted pursuant to the State’s police powers. See Tex. Const. art. XVI, § 59; see also Barshop v. Medina Underground Water Conservation Dist., 925 S.W.2d 618, 623 (Tex. 1996) (“[c]onservation of water has always been a paramount concern in Texas”); In re Adjudication of Water Rights of Upper Guadalupe Segment, 642 S.W.2d 438, 445 (Tex. 1982) (State has constitutional duty to conserve water as a precious resource). The legislature has established water control and improvement districts to act as agents of the State in protecting its trust property and has invested them with broad authority to carry out this duty. See Tex. Water Code Ann. §§ 49.211(a), 51.121, 51.122, 51.127 (West 2000 & Supp. 2004-05); 30 Tex. Admin. Code § 290.41(e)(2) (2004).

35 The warning-signs requirement

The Cumminses also claim that they have suffered a per se taking because the

regulation’s requirement that warning signs be placed along the shoreline constitutes a “physical

invasion” of their property. The record shows that the District ordered signs, but nothing in the

record evidences whether these signs were actually completed and placed on the Cumminses’ land

or that they have interfered with the Cumminses’ use of their land. The Cumminses claim that the

signs were placed on their property or, alternatively, that a genuine issue of material fact exists

because the record does not evidence whether the signs were placed on their property. The District

claimed that the signs were put up in April 1997, but that they were only placed on the District’s land

and were never placed on the Cumminses’ property, in compliance with the requirement that the

signs “be posted along the shoreline.” This dispute, however, does not rise to the level of a genuine

issue of material fact because, even if the District placed signs on the shoreline boundary of the

Cumminses’ land, the Cumminses have not demonstrated that this would constitute a permanent

occupation of their land sufficient to entitle them to compensation. See Loretto v. Teleprompter

Manhattan CATV Corp., 458 U.S. 419, 435-36 (1982) (“direct physical attachment of plates, boxes,

Because the purpose of the 200-foot regulation is to ensure an adequate supply of safe drinking water to the public, it is substantially related to protecting the health, safety, or general welfare of the people. See Turtle Rock Corp., 680 S.W.2d at 804. Also, the regulation is “reasonable” because it affects all users of Lake Travis equally and it encompasses only a small area; it is not being enforced against the Cumminses any differently than it would be against any other person who attempted to circumvent the regulation’s prohibition of activity not related to the intake- barge within 200 feet. See id. Moreover, as members of the general public, the Cumminses benefit from this regulation. Therefore, despite any impact the 200-foot regulation may have had on the Cumminses’ land, they are not entitled to compensation. See Estate of Scott v. Victoria County, 778 S.W.2d 585, 590 (Tex. App.—Corpus Christi 1989, no writ).

36 wires, bolts, and screws to the building, completely occupying space immediately above and upon

the roof and along the building’s exterior wall” constituted permanent occupation and, hence, was

a taking).

Because the District conclusively established that its 200-foot regulation constitutes

neither a per se taking nor a case-specific taking of the Cumminses’ land, and negated that any

genuine issue of material fact remains as to whether the warning-signs requirement constitutes a

sufficient physical invasion of the Cumminses’ land to be a per se taking, the Cumminses’ first issue

is overruled.

Validity of 1000-Foot Regulation

In their third issue, the Cumminses challenge the validity of the District’s 1000-foot

regulation, specifically asserting that it is an unauthorized expansion of the authority granted by the

Commission’s substantive rule, administrative code section 290.41(e)(2). See 30 Tex. Admin. Code

§ 290.41 (e)(2); Reg. 6.5.3.2. Agencies are not permitted to “impose additional burdens, conditions,

or restrictions in excess of the statutory provisions” that authorized the rule. Texas Alcoholic

Beverage Comm’n v. Sanchez, 96 S.W.3d 483, 487 (Tex. App.—Austin 2002, no pet.).

The rule established by the Commission states that “[r]aw water intakes shall not be

located within 1,000 feet of boat launching ramps, marinas, docks, or floating fishing piers which

are accessible by the public,” and the District’s regulation provides that “all recreational boating

activity within 1000 feet is prohibited.” 30 Tex. Admin. Code § 290.41(e)(2); Reg. 6.5.3.2. The

phrase “all recreational boating activity” is simply a shorthand used by the District in place of the

enumerated list of recreational boating activities appearing in the Commission’s rule.

37 Even if the phrase “all recreational boating activity” was interpreted as broader than

“all ramps, marinas, docks, and piers ‘accessible by the public,’” this would not invalidate the

District’s rule because the legislature has granted the District the authority to accomplish its

statutorily defined purposes by “any practical means.” Tex. Water Code Ann. § 51.121. This

authority expressly includes a water district’s right to “adopt and enforce reasonable regulations” for

the purposes of “preserv[ing] the sanitary condition of all water controlled by the district” and

“regulat[ing] privileges on any land . . . controlled by the district.” Id. § 51.122 (West Supp. 2004-

05).

Based on the plain meaning of these statutes, the District established as a matter of

law that its regulation imposed no burdens, conditions, or restrictions in excess of those statutorily

authorized. The Cumminses’ third issue is overruled.

CONCLUSION

The District established that it is entitled to summary judgment and that no genuine

issue of material fact remains on any of the Cumminses’ claims by conclusively proving that (1) the

Cumminses are not littoral owners because their chain of title was not granted prior to 1895 and it

did not convey land appurtenant to a natural lake with a normal flow of water; (2) even if the

Cumminses were littoral owners, that would not entitle them to construct a boat dock over waters

and submerged lands that are owned by the State, as trustee for the public, and regulated by the

District for the purpose of ensuring an adequate supply of safe drinking water for the public; (3) the

Cumminses’ chain of title did not convey an express easement to use the water and the Cumminses

have not made apparent, continuous, and necessary use of the water to support an implied easement;

38 (4) the District’s 200-foot regulation does not result in a compensable taking of the Cumminses’

property—whether considering the entire parcel or just Lot 6—because it is a legitimate exercise of

the State’s police power that has not substantially interfered with the Cumminses’ use and enjoyment

of their land; (5) the District’s warning-sign regulation does not constitute an inverse condemnation

of the Cumminses’ land because it has not resulted in a permanent, physical occupation of the land;

and (6) the District’s 1000-foot regulation is valid because it does not exceed the authority expressly

granted to the District by statute.

Because the District conclusively demonstrated its entitlement to judgment as a matter

of law, and no genuine issues of material fact remain, we affirm the summary judgment.

Jan P. Patterson, Justice

Before Justices Kidd, Patterson and Puryear; Justice Kidd Not Participating

Affirmed

Filed: June 3, 2005