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
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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
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.
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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
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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
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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
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.
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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
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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
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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
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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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