Spanish Law, Texas Beaches and State Boundaries
Copyright © 2016 - Kristopher M. Kline, P.L.S. L-3374
The origins of the public trust doctrine can be traced back through English sources to the laws of imperial Rome. Discussion of Roman law on this issue is somewhat confusing; some authorities conclude that the shore was the property of the Roman people, while others insist that no ownership of the shore by any entity was recognized.
England was a hotbed for arguments over the extent of crown rights below the high water mark, as described in an early article from Columbia Law Review, Vol. 12, No. 5 (May, 1912), pp. 395-421: Royal E.T. Riggs. This tug-of-war extended from the 16th through the 18th centuries and culminated with the posthumous publication of De Jure Maris by Lord Hale. In his treatise, Lord Hale summarizes the then-current common law of England. The lands between the ordinary high and low water mark: “…doth prima facie and of common right, belong to the King, both in the shore of the sea and the shore of the arms of the sea. * * * It is admitted that 'de jure communi' between high-water and low-water mark doth prima facie belong to the King, … Although it is true, that such shore may be and commonly is parcel of the manor adjacent, and so may be belonging to a subject, as shall be shown, yet prima facie it is the king's…”
Consideration of the unique origins of the Texas legal system highlights similarities of the English common law described above and the elements of Spanish law that have been incorporated by the Texas courts. Latin-American elements primarily were based on Las Siete Partidas, written by King Alfonso X of Castile circa 1265. The parallels are due to common sourcing from early Roman law and to information exchanges between early English and Spanish legal scholars.
The Texas court emphasizes the importance of Spanish law in the benchmark ruling Luttes v. State: 159 Tex. 500; 324 S.W.2d 167 (1958). Arguments over the most appropriate benchmark for measuring the mean high water mark on the Gulf coast highlight the tug-of-war between English and Spanish law in the development of the Texas legal system: “The basic definition, of course, is that of the celebrated body of Spanish law known as Las Siete Partidas, which was evidently written in the 13th century and promulgated some three centuries later, and of which the critical portion of Partida 3, Title 28, Law 4 A rather literal translation …and all that place is called shore of the sea insomuch as it is covered by the water of the latter, however most it grows in all the year, be it in time of winter or of summer.” After lengthy discussion, the court concludes that the principles are remarkably similar in both systems and no real conflict exists in establishing the mean high water mark.
State boundary disputes are common sources of litigation brought before the U.S. Supreme Court. While Texas disputes have included such diverse issues as the offshore limits of state sovereignty, some of the most common arguments between states are disputes over riparian boundaries. From the Red River to the Canadian River to the Rio Grande, Texas demonstrates the frequency of these disputes.
One of the more intriguing aspects of the frequent discord over river boundaries in this state is that comprehensive research is one of the most critical elements. Correct resolution of any boundary dispute hinges on a complete history of the subject parcels and the associated property rights. This is true regardless of whether the litigation is between sovereign states or between private owners.
Each river boundary is treated as a discrete problem and is subject to its own exhaustive analysis. One of the reasons that the study of state boundary disputes is instructive to the surveyor is the emphasis placed on comprehensive research. Since the stakes are generally high, both parties take great pains to leave no stone unturned. This example is one that surveyors would be wise to follow.
In Oklahoma v. Texas: 261 U.S. 340; 43 S. Ct. 376; 67 L. Ed. 687; (1923), the analysis was restricted to a specific stretch of the Red River in the Big Bend region. Burke Bet Island and Goat Island are singled out for specific treatment. 4 years later, New Mexico v. Texas 275 U.S. 279; 48 S. Ct. 126; 72 L. Ed. 280 (1927) applies the same underlying principles to reach a radically different conclusion on the Rio Grande River.
A quick scan of these two cases could lead the reader to conclude that one of these rulings was contrary to law. However, these two rulings are consistent in their application of relevant law. The apparent incongruity is based in large part on the distinct mechanisms and unique background associated with the lines under consideration in each case.
The Texas courts applied the same specificity in Severance v. Patterson: 370 S.W.3d 705 (2012). After many pages of detailed analysis of the title history of West Galveston Island, the Open Beaches Act and “rolling easements,” the court adds this important statement: “Today's decision centers on West Galveston Island, not the entire Gulf Coast. While holding generally that such an easement is not embedded in Texas common law (unlike the State's right to submerged land), the Court focuses its analysis on Severance's property, emphasizing the unique historical lineage of title to West Galveston Island.”
Judge Wainwright also highlights another important principle that can apply to surveyors everywhere. Presuming that a property right exists because it would be more convenient puts land use professionals on very shaky ground. Despite evidentiary standards applicable for determining the existence and extent of property rights, cases are often lost because a party assumes too much.
Note: neither the author nor publisher of this article intend it to be considered a source of legal advice. The law can change over time and differs in various jurisdictions. The best source of legal counsel is an attorney admitted to the Bar in your state.
Kris Kline lives in Alexander, NC. He will present Three New Ways to Find Trouble, Wars Between the States, and Courtroom Preparation and Testimonies during the TSPS 65th Annual Convention in October. Mr. Kline’s books on Adverse Possession and Riparian Boundaries are available on-line at www.2Point.net.