Fulton v. Frandolig

63 Tex. 330, 1885 Tex. LEXIS 82

• Court: Texas Supreme Court
• Decided: February 16, 1885
• Docket: Case No. 1639
• Status: Published

Opinion

Watts, J. Com. App.

There is no doubt but that land formed by-grad ual and imperceptible accretion, as well as that formed by the gradual and imperceptible receding of the water, belongs to the owner of the contiguous land. In this respect there is no distinction between land gained by accretions and that gained by the recession of the water. New Orleans v. United States, 10 Pet., 662; County of St. Clair v. Lovington, 23 Wall., 46; Perry v. Pratt, 31 Conn., 442; Barrett v. New Orleans, 13 La. Ann., 105; Handly v. Anthony, 5 Wheat., 374.

It is also true that the right to alluvion depends upon contiguity; the accretions belong to the land immediately adjoining the water, however narrow it may be, and without regard to the size of the parcel behind it. Bates v. Illinois Central Railroad Co., 1 Black, 204; Saulet v. Shepherd, 4 Wall., 502; Posey v. James, 7 Lea (Tenn.), 98; Bristol v. Carroll County, 95 Ill., 84; Beaufort v. Duncan, 1 Jones (H. C.), 234.

According to the finding of the court, in making the original survey the surveyor actually run the lines upon the ground according to the calls for course, distance and meanders of the bay front. At that time there was a shell reef extending from the boundary line of the survey made for Smith, assignee of Crocroline, to the south southeast about ,a half mile, varying in width from twenty feet to fifty or sixty yards, and in elevation from a few inches to six or seven feet. At the southeast extremity of this shell reef there was some low marshy land. That at the point where the line as run by the surveyor in making the Smith survey crosses this reef, it was then about twenty or thirty feet wide.

From this finding it will be seen that all that part of this shell reef lying to the south southeast of the boundary line of the Smith survey, running along the general front of the bay, was not included in that survey, and it may be assumed belonged to the state as unappropriated public domain.

How the accretion in controversy immediately adjoins and is contiguous to this shell reef lying to the southeast of the Smith survey. This accretion is not contiguous to the Smith survey, as claimed. But it seems that by gradual and imperceptible recession of the water, and by gradual and imperceptible deposit, a considerable body of land has been formed immediately contiguous to the sheel reef, in the form of a small peninsula, the reef being the basis of the deposit and reliction.

From these facts it will be readily seen that the made lands do not belong to the Smith surveys, but originally the state, and now the appellee, if he has secured the state’s title, is the owner.

The real point contended for by appellant is that as the calls of his grant are for the meanders of the bay according to certain calls for course and distance, that in the conflict the latter must yield to the former, and that being true, the Smith survey must be considered as embracing the shell reef.

But it should be remembered that the actual survey as made upon the ground, if it can be found and identified, controls. As is frequently said, the real object in applying the various calls is to find the footsteps of the surveyor. When these are found and identified all classes of calls must yield to them.

Here the court found, and upon sufficient evidence, that in making the Smith survey the surveyor in fact ran across the shell reef according to the call for course and distance. Hence according to the lines as actually run upon the ground, this shell reef, to the south and southeast of where the line crossed it, was not included in the Smith survey.

Our conclusion is that there is no error in the judgment, and we recommend its affirmance.

Affirmed.

[Opinion adopted February 16, 1885.]