City and County of Dallas Levee Imp. Dist. v. Carroll

On Motion for Rehearing

We shall not comment separately upom each of the twenty-six alleged points of' error presented in appellee’s motion for rehearing, but shall discuss the substance of; the principal points.

Appellee says that we erred in holding-that the Dallas County Flood Control District is a water control and improvement-district, hence does not have to give bond on appeal.

Our description of the District is probably faulty in nomenclature. Nevertheless we-*311believe the District comes within -the provisions of Art. 2276a, V.A.C.S. We were guided to this conclusion by the following provisions among others in the statute creating the District as shown in 1953 Supplement to Vol. 2i; V.A.C.S., Title 128, Chapter 8 following art. 8197f1: “Sec. 1. * * * Such District shall be a governmental agency and body politic and corporate, with the powers of government and with the authority to exercise the * * * functions hereinafter specified * * * including the control, storing, preservation and distribution of its storm and flood-waters and the reclamation and drainage of its overflowed lands. * * * Sec. 6. * * for the purpose of controlling the waters of the Trinity River * * * and its tributaries * *

Appellee says that we erred when we stated that appellee moved over onto the adjoining land to the east, which land, as ap-pellee concedes, is entirely within the old river bed and therefore belongs to the State of Texas. It is the land on controversy herein.

Our statement was based not only on the record as a whole but upon the testimony of appellee himself. Here is his testimony as shown by the statement of facts:

“A. When I first started out there I rented a spot from Good Luck Oil Company.” (Page 13.)
“ * * * Q. Isn’t that the adjoining number-to you? A. Yes, but the number down there — that is the only way that 'will get you lost.” (Page 14.)
“ * * * A. * * * It is between me and Good Luck now, the property I rented was between me and Good Luck.
“Q. It is not the property you occupy now? A. It is not.” (Page 15.)
“ * * * Q. Now, Roy, since you moved over from — that would be east from where you were occupying there from Good Luck, you moved your building east, is that correct, about 75 feet, or — A. That is right.” (Page 29.)
“ * * * Q. And all the part that you are occupying there, whatever it is, is wholly within the old channel of the Trinity River? A. Yes, but in the last fifteen years that has always been there where I am at.” (Page 105.)
“Q. Now as a matter of fact, you know in truth and m fact that all of the property which you cure occupying is in the old channel of the Trinity River, do you not? A. I sure do.” (Page 25.) (Emphasis supplied.)

As to our statement that the land belongs to the State of Texas, we do not believe there is any ground for controversy. As pointed out in our main opinion, under the provisions of Art. 7467b, § 3, V.R.C.S., it cannot be held that the old river bed has been abandoned. It follows that the State of Texas still owns title to it. Art. 4026, V.R.C.S.; Ray v. State, Tex.Civ.App., 153 S.W.2d 660 (ref. w. m.). Since there has been no abandonment, the statute relied on by appellee, Art. 7467b, § 1, has no application here. Furthermore, as appellee himself testified, all the land he is occupying lies within the old river bed. He is not shown to be the owner of any land adjoining the old river bed. Hence he is in no position to claim the benefits of Art. 7467b, § 1, even if the old river bed had been abandoned.

Appellee takes issue with our statement that the trial court’s finding of abandonment is without support in the evidence and contrary to statutory law. Appellee says he is unable to find where the trial court made any such finding.

We must admit that our language was inaccurate. What we had reference to was one of the trial court’s conclusions of law. Here it is, as shown on page 27 of the Transcript: “If the plaintiffs or either of them ever had possession of this property it had long since abandoned the same prior to the institution of this suit.” We amend pur original opinion so that we say: “We think the trial court’s conclusion of aban*312donment is without support in the evidence, and is contrary to statutory law.”

Appellee says that he does claim title to the land and that we were wrong in saying he did not. Appellee’s pleadings do assert a claim of title. However from his testimony we had the impression that appellee’s claim to -the land he is occupying was that he had a superior right of possession to the right of possession asserted- by appellants. We again quote from his testimony as shown in the statement of facts:

“Q. All right, and state again about when you moved there, four or five years ago ? A. ’ Well, I have been in this building that I know of five years.
“Q. About .five, years; did .you put that building there?. A. . I,did;” (Page 17.)
“Q. Did you ever -rent the property where you are now located? A. No.” (Page 16.)
“Q. Have you any sort of deed or conveyance or other instrument showing any title in and to you? A. No.” (Page 20.)
“Q. Now, did. you try to get that land from the State of .Texas at any time, Roy? A. I wrote a letter to Austin, yes.
“Q. Did you have your attorney write a letter down there? A. That' is right.” (Page 26.)

Appellants do not claim fee title to the old river bed. They say that the fee title is owned by" the State of Texas, under whom they claim only a right of possession. The State' of Texas is not a party to this suit. However, appellee apparently attacks appellants’ claim of a right of possession by attempting to show that the fee title to the land is in himself, riot the State of Téxas. Therefore we shall discuss appellee’s claim of title.

As a claimant of title, appellee’s position is indeed untenable. As we have pointed out, thére has béen no abandonment . nor is appellee shown to be an adjoining landowner; so appélí.ee’has no title under Art. 7467b, § 1, V.R.C.S. Appellee himself says that he holds no deed or other instrument of title. He has not occupied the property long enough to acquire title under our ten-year statute of limitation. And if he had occupied the land for the required .length of time, it would not avail him, for title to State lands cannot be acquired by adverse possession. Jackson v. Nacogdoches County, Tex.Civ.App., 188 S.W.2d 237.

Appellee insists that hé did plead estop-pel and points to the prayer of his pleading; “Wherefore he prays that this plea in abatement be sustained, and pleas of misjoinder, exception, limitations, estoppel, and that the plaintiff take nothing against him * * We do not find any allegation setting out the indispensable elements of a parol -claim of title by estoppel as laid down by our Supreme Court in Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114 (Syllabi 2 and S), IS A.L.R. 216. Appellee does not allege that he'paid any consideration to the State of Texas, or to appellants herein for his parol claim of an interest in this land. He does not allege that appellants made any misrepresentation to him, or did anything to him which misled him into changing his. position to his hurt.

Even if we were to accept appel-lee’s pleading as sufficient to allege title by estoppel, it would not avail appellee anything, for such plea finds no support in the evidence. He paid no consideration to the State of Texas or to appellants for his alleged interest in the land. He says that for-about five years he occupied the property without objection from appellants. Under the -circumstances here present mere failure to object, that is, silence, will not work an-estoppel. Watson v. Rochmill, 137 Tex. 565, 155 S.W.2d 783.

After considering all the points raised in appellee’s motion for rehearing we have .concluded that the motion should be. overruled.

Motion for rehearing overruled. •

. Acts 1945, c. 355, as amended Acts 1951, c. 50.