Billie and Carolyn Buckingham and Brett and Tara Buckingham v. Josh McAfee and Shawn Scholl

NO. 07-11-0350-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

DECEMBER 12, 2012
_____________________________

BILLIE AND CAROLYN BUCKINGHAM AND
BRITT AND TARA BUCKINGHAM,

Appellants
v.

JOSH MCAFEE AND SHAWN SCHOLL,

Appellees
_____________________________

FROM THE 31ST DISTRICT COURT OF WHEELER COUNTY;

NO. 12,356; HONORABLE DAVID L. GLEASON, PRESIDING
_____________________________

Opinion
_____________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
In this appeal, we are asked to decide if the trial court erred in
declaring that appellants Billie and Carolyn Buckingham and Britt and Tara
Buckingham (collectively "the Buckinghams") do not own a portion of the Red
River riverbed claimed by Josh McAfee and Shawn Scholl (collectively
"McAfee"). We conclude that it did not, after considering the arguments
urged by them.

Background
Realty deeded to the Buckinghams surrounds the riverbed in question.
It encompasses all land lying south of the south bank and north of the
north bank of the North Fork of the Red River found in section 93, Block
13, H&GN RR Co. Survey, Wheeler County, Texas. Furthermore, they acquired
the property from individuals whom we will call the Taylors, Seagos, and
Burkhalters. The Taylors, Seagos, and Burkhalters acquired their
respective interests in the land via a deed from the Glynn-Juanita Family
Limited Partnership, while the latter acquired its interest from Glynn and
Juanita Bell. In turn, the Bells took their interest via a deed from
Gideon and Annie Bell that was executed in 1941. Per the 1941 conveyance,
Gideon and Annie transferred to Glynn several sections of land in Wheeler
County, including section 93, Block 13. And, the conveyance of section 93
was described as "all of Section No. Ninety Three (93) in Block No.
Thirteen (13), except ninety (90) acres reserved for river bed, all of the
above being in Wheeler County . . . . " While the Buckinghams consider the
description of the riverbed "except[ed]" from the conveyance to Glynn Bell
as rather vague, no one suggests that it can encompass riverbed lying in
section 93 other than that claimed by McAfee. Nor does anyone contend that
the total riverbed within section 93 exceeded the aforementioned ninety
acres.[1]
Discussion
A. Riparian Rights
To illustrate that they owned the riverbed at issue, the Buckinghams
invoked the doctrine of riparian rights. They describe the same as "the
rights of the owners of land on the banks of watercourses, relating to
water, its use, and ownership of soil under the stream or river." Per the
theory, a "riparian proprietor owns the bed of the stream." In other
words, "[w]hen a private party makes a conveyance of land bordering on a
stream, . . . the grantor [purportedly] conveys title to the one-half of
the stream bed abutting his land." To support the proposition, they cite
us to Strayhorn v. Jones, 157 Tex. 136, 300 S.W.2d 623 (1957). The actual
language in Strayhorn to which the Buckinghams allude is:
We hold that when a private person (including corporations, etc.)
conveys title to lands owned by him abutting a stream -- whether
navigable or not - such conveyance passes to the grantee (unless the
conveyance clearly shows a contrary intention), title to the one-half
of such stream bed abutting his land, subject, of course, to whatever
rights the State of Texas may have in the stream bed.

Id. at 634 (Emphasis added). Moreover, it is the italicized language in
the quotation that we find determinative here.
As previously mentioned, Gideon Bell's deed to Glynn Bell contained
the following language: "except ninety (90) acres reserved for river bed."
While that passage mentions no metes or bounds, it nonetheless reveals a
clear intent on the part of Gideon to exclude "riverbed" from the
conveyance to Glynn and his successors-in- interest like the Buckinghams.
More importantly, the Buckinghams cited us to no authority suggesting that
the requisite "contrary intention" referred to in Strayhorn can be
satisfied only through a valid legal description of the riverbed excepted.
Nor did we find any such authority. Indeed, the Supreme Court in Strayhorn
simply said that the conveyance need only disclose a clear intention to
exclude riverbed from the conveyance, and we care not to make law by adding
to that statement. Thus, the theory of riparian rights, as explained in
Strayhorn, is inapplicable here. And, because those from whom the
Buckinghams acquired their interest in the land did not acquire the ninety
acres of riverbed, the trial court did not err in withholding title to the
same from them.
Additionally, other evidence of record supports the accuracy of our
decision. For instance, the individual from whom Gideon Bell acquired his
interest (i.e., Counts) described the land being conveyed as "fifty (50)
acres more or less out of said section [93] lying North of the North Fork
of [the] Red River." (Emphasis added). Gideon bought his other interest
in section 93 from a person named Ford, who, in turn, bought the land from
Counts. And, the conveyance from Counts to Ford described the land being
transferred as all "of Section (93) . . . which lies South of [the] Red
River; and being five hundred acres, more or less, the north boundary of
the tract hereby conveyed being the Red River with its meanderings."
(Emphasis added). About ten years later, Counts quitclaimed to Geneva D.
Mullen (that is, McAfee's predecessor-in-title) the following:
Ninety acres of land . . . known as a part of Section No. 93 . . .,
the land conveyed being the land lying between the North Bank and
South Bank of the North Fork of [the] Red River, according to its
meanderings.

The deed to Mullen further provided that:

[i]t is understood that this deed conveys all of the land not
heretofore conveyed, the part that has been heretofore conveyed being
in two tracts the First tract that is excepted being 50 acres lying
North of the North Fork of [the] Red River, sold to Gideon Bell April
9, 1912, . . . the second tract being 500 acres sold by the Grantor
herein in F. G. Ford by Deed dated October 30, 1912 . . . . This Deed
is intended to convey all of my interest in said land that has not
heretofore been conveyed.

So what we have is Counts transferring "50 acres" north of the Red River to
Gideon and "500 acres" south of the Red River to Ford. Given that a
section contains six hundred forty acres, he was left with ninety acres
comprising the land area between the north and south boundaries of the Red
River. And, it just so happens that the amount of riverbed conveyed to
Mullen was "ninety acres" or, as Counts expressly recognized via the deed
to Mullen, "all of the land not heretofore conveyed" by him.[2]
B. Ownership In McAfee
The Buckinghams next question whether McAfee adequately proved
ownership of the riverbed. They preface that discussion by alleging that
their "discussion on riparian rights is the beginning, middle and end of
this controversy." We must agree with that statement to the extent it
concerns the issue of title.
The Buckinghams do not own the riverbed. The trial court so found
via its partial summary judgment, and we find no error in that decision.
Consequently, the matter of who else may own the property is moot, at least
as to the Buckinghams. This is especially so since the record fails to
disclose that they have the authority to assert the rights of anyone else
who may claim ownership. So, we need not address the arguments contained
under their issue "1B." Moreover, our conclusion comports with the rule
mentioned by the Supreme Court in Rogers v. Ricane Enters., Inc., 884
S.W.2d 763 (Tex. 1994).
Like here, the circumstances in Ricane also encompassed a dispute
over title to realty. In resolving the controversy, the Supreme Court said
that the claimant is restricted to recovering upon the strength of his own
title; he cannot prove ownership based upon the weakness or shortcomings
of his opponent's claim. Id. at 768. And, while the court was alluding
to an action for trespass to try title, the logic underlying the rule is
nonetheless applicable here. Whoever says they own a parcel of realty
should be required to prove their title to same rather than simply obtain
ownership because someone else cannot show it is theirs. So, since the
Buckinghams failed to establish their title to the riverbed, we see little
reason to entertain their allegations involving whether McAfee satisfied
his burden.
C. The Right Cause of Action
Nor do we assign importance to the allegation that title could not be
adjudicated because the proceeding was one for declaratory judgment as
opposed to an action in trespass to try title. Interestingly, the record
discloses that the Buckinghams were the first to seek an adjudication of
title via a request for a declaratory judgment. It appeared in their
counterclaim. Thereafter, McAfee sought similar relief through similar
means. Moreover, neither questioned the other's ability to resolve the
dispute via the procedural mechanism they selected before the trial court
resolved the controversy through its partial summary judgment. So, it can
be said that not only did the Buckinghams fail to contemporaneously object
to the nature of the cause of action being prosecuted, but also invited
the error of which they now complain. In either case, the complaint is
waived. See Teon Management, L.L.C. v. Turquoise Bay Corp., 357 S.W.3d
719, 726 (Tex. App.-Eastland 2011, pet. denied) (holding that the failure
to complain about the use of a declaratory proceeding to adjudicate title
waives the complaint on appeal); accord Krabbe v. Anadarko Petroleum Corp.,
46 S.W.3d 308, 320-21 (Tex. App.- Amarillo 2001, pet. denied) (concluding
the same); In re Dep't of Family and Protective Services, 273 S.W.3d 637,
646 (Tex. 2009) (holding that one cannot complain about error he invited).
D. Attorney's Fees
Related to the controversy underlying our discussion in the preceding
paragraph is the topic of attorney's fees. Such fees could not be awarded
McAfee, according to the Buckinghams, since title was at issue, the issue
should have been resolved via a suit for trespass to try title, and
attorney's fees cannot be awarded in such an action. But, as previously
concluded, the trespass to try title versus declaratory judgment conundrum
went unmentioned. This circumstance, therefore, calls into application our
holding in Krabbe v. Anadarko Petroleum. The Buckinghams "did not
preserve error in regard to the argument that attorneys' fees were
erroneously awarded because the suit was, in substance, a trespass to try
title suit[;] [and,] [b]ecause the error was not preserved and we have
previously failed to find reversible error in the trial court's ruling
...[denying them title to the riverbed], we overrule . . . [the] issue."
Krabbe v. Anadarko Petroleum Corp., 46 S.W.3d at 321.
E. Sufficiency of the Property Description
Next, we address the Buckinghams' argument that McAfee failed to
establish the location of the claimed property. It is true that a valid
conveyance requires a description (of the property being conveyed)
sufficient to allow a party familiar with the locality to identify the
premises with reasonable certainty. Lowell v. Miguel R., 293 S.W.3d 764,
767 (Tex. App.-San Antonio 2009, pet. denied), citing Gates v. Asher, 154
Tex. 538, 280 S.W.2d 247, 248 (1955); see also TH Investments, Inc. v.
Kirby Inland Marina, L.P., 218 S.W.3d 173, 192 (Tex. App.-Houston [14th
Dist.] 2007, pet. denied) (stating that in a trespass to try title action,
the question is whether the land can be identified with reasonable
certainty).
Here, we have a description of the land that includes the number of
acres conveyed (i.e., ninety), a statement that the acreage lies between
the north and south bank of the North Fork of the Red River, according to
its meanderings, and a reference to the particular section (i.e., 93),
block (i.e., 13), and survey (i.e., HG&N RR Co. Survey) in Wheeler County
encompassing the land. To this, we add our prior observation that the only
riverbed within Section 93, Block 13 of the HG&N RR Co. Survey in Wheeler
County is the ninety acres in dispute here. So, we conclude that the
description conveying the realty to McAfee's predecessor-in-title was and
is sufficient to identify the land with reasonable certainty. See Siegert
v. Seneca Resources Corp., 28 S.W.3d 680, 683 (Tex. App.-Corpus Christi
2000, no pet.) (stating the land was capable of being described with
reasonable certainty when the amount of acres was stated and it was further
described as "lying in the bend of the old Brazos River" together with
statements that the land "was formerly part of the Walter Sutherland League
in Brazos County" and that the land is "almost surrounded by the Fisher
League").
F. Easement by Necessity
The Buckinghams next contend that McAfee failed to prove his
claim to an easement by necessity. We disagree.
One may secure an easement by necessity to his property over the land
of another by proving that 1) there was unity of ownership in both
properties prior to separation, 2) access is a necessity and not a mere
convenience, and 3) the necessity existed at the time of severance of the
two estates. Koonce v. J. E. Brite Estate, 663 S.W.2d 451, 452 (Tex.
1984). It is the third element that the Buckinghams address. They believe
that McAfee failed to prove that there was no access to the riverbed when
Counts sold the land surrounding the riverbed to Bell and Ford and the
riverbed to Mullen.
The record before us contains the affidavit of Billie Buckingham. In
it, he states that "neither Geneva D. Mullen nor any of the individuals in
the chain of title from Mrs. Mullen to the disputed acreage have had
control or possession of any portion of Section 93." A map of Section 93,
also appearing in the summary judgment record, shows no public road or
easement to the ninety acres of riverbed through the surrounding land.
This is some evidence not only to support the trial court's finding that
McAfee's predecessor-in-title received "only an inner portion of Section 93
which was entirely surrounded by land owned by Glynn Bell and his family"
but also that access was a necessity at the time of severance of the two
estates. See City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005)
(stating that a challenge to the legal sufficiency of the evidence fails
when there is some probative evidence which, when viewed in its most
favorable light, supports the trial court's judgment).
We overrule each issue or contention asserted by the Buckinghams and
affirm the judgment.

Brian Quinn
Chief Justice

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[1]As will be illustrated in footnote 2, there is no material issue of
fact regarding the matter. There are only ninety acres of riverbed in
section 93 and it consists of the riverbed appended to the Red River.
[2]Incidentally, if a section of land equals six hundred forty acres
(which it does) and section 93 consists of fifty acres north of the Red
River and five hundred acres south of that same river, then it must be that
ninety acres of the Red River's riverbed comprise the remainder of that
section. This is of import because it tends to clarify whatever vagaries
there may have been in the description of riverbed excluded from the
conveyance from Gideon to Glynn Bell. In other words, there is only ninety
acres of riverbed in section 93; so, the ninety acres referred to in the
1941 deed and reservation can only be that previously given Mullen.