joined by Justice Greenhill, dissenting.
The principles of law followed in the case of Welder v. State, Texas Civ. App., 196 S.W. 868, wr. ref., do not apply and are not controlling in the instant case. Both the majority and the concurring opinions rely upon the Welder case.
It seems to me that the majority erroneously concludes that this state is committed to what it regards as the holding of the Welder case. There is no authoritative holding of this Court on the subject. The Welder case is an opinion of a Court of Civil Appeals. The application for writ of error was marked “refused” by this court at a time when the refusal of the application did not mean that this Court approved of the opinion of the Court of Civil Appeals. Koepsel v. State Board of Medical Examiner, 1959, 159 Texas 479, 322 S.W. 2d 609.
*622That portion of the Welder opinion relied on by the majority in this case is against the weight of authority in the United States. 8 American Jurisprudence 754, Boundaries, Sec. 14; 56 American Jurisprudence 621, Waters, Sec. 151.
The rule of the majority of American courts is set out in 4 Tiffany on Real Property (3rd ed.) 100, Sec. 995.
“* * * * In the ease of a conveyance of land bounded by a lake or pond, the same general rule, by weight of authority, applies, and the conveyance prima facie passes the soil so far as the grantor owns, whether this ownership extends to the center of the lake or pond, to the high watermark, or to an intermediate point. * * * * .”
To the same effect is Angelí on Water Courses 40, Sec. 41; Gould on Waters 380, Sec. 196.
Granting that this Court is committed to the Welder case, I contend it is not in point. The opinion in that case states the issue to have been: “The issue in this ease is not whether the state could grant title to land in the bed of a natural, permanent fresh water lake, but has it done so as to Green Lake?” The State of Texas was claiming title to some 5,000 or 6,000 acres (Green Lake) on the theory that the calls in the surveys surrounding the lake having expressly limited the extent of the grant in each instance to the edge or margin of the lake clearly demonstrated that there was no intention to grant land in the bed of the lake. The grants to the lands surrounding Green Lake were made pursuant to statutes which have been construed as prohibiting grants under such lakes. This situation is not true here. In the present case, the State has long since parted with the title to not only the 386 acres involved, but also to all of the land extending to the Colorado River. I agree with the trial court’s finding that the contour line was a meander line and not a boundary line. There is no question but that respondent sold land abutting on Lake Buchanan. Respondent by her deed conveyed the title she owned. That title was the title which had passed by mesne conveyances from the State of Texas. In the Welder case, the title to the bed of Green Lake was at all pertinent times vested in the State of Texas. In our case, the title to the bed of Lake Buchanan, as well as the 386 acres, had been divested out of the State and the respondent and her predecessors were thereafter the owners of all of such land. This means that on the date of the deed from respondent she owned the land to the Colorado River. In recognition of such title, the *623Lower Colorado River Authority obtained a permanent easement for flooding the lands up to the 1020 foot contour line. No similar facts can be found in the Welder case. In the Welder case there was no evidence of an intention to convey any portion of Green Lake, whereas, in this case, the evidence is conclusive that the grantors were the owners of all of the land involved below the 1020 foot contour line and the bed of Lake Buchanan. The facts in connection with the Lower Colorado River Authority easement and the description of the grants of which the land is a part forcefully demonstrate that the land below the 1020 foot contour line was conveyed to the petitioners.
The Lower Colorado River Authority easement as it affects the land in controversy was originally procured by Emory, Peck and Rockland Development Company from Cassie A. Friedsam et vir., by instrument dated August 14, 1930. The easement was subsequently transferred to Lower Colorado River Authority. It conveys a perpetual easement and right to overflow, inundate, and make use of for any and all purposes in connection with the maintenance and operation of a dam to an elevation of 1020 feet above mean sea level, the lands therein described. That part of the land here involved, which is below the contour line, is included in the fieldnote description attached to the easement. The easement also provides that the grantors reserved the right of access to the water line of the lake formed by such dam at all times and places, except over the embankment and dyke. Respondent’s predecessors in title further in said easement reserved the right to use such land to the water’s edge. Since the Lower Colorado River Authority has never owned the title to the land involved in the bed of Lake Buchanan, and since the respondent and her predecessors in title were the owners of all the land in controversy, including the land below the 1020 foot contour line, and since such land is a part of two surveys abutting the Colorado River, and since all the facts show an intention to convey to petitioners all the land, I see no reason for not so holding. There is no justification in fact or in law for the action of the majority in remanding this case for a trial on the alternative count for reformation of the deed. The petitioners contend that the contour line in the deed was inserted in the description by the respondent-grantor as a meander line. The surveyor she employed to prepare the field notes testified that the usual method employed by surveyors in describing land bounded by a river, a lake, or other body of water was by use of a meander line. Such a line is normally surveyed by running a transit line on the ground from point to point, on or near the bank, some distance from the edge of the water, and roughly following the siuousi*624ties of the shore. The surveyor adopted the 1020 foot contour-line as an adequate substitute for an actually surveyed meander line. If he had actually surveyed a meander line, it would have involved considerable expense to respondent because of the long, broken, and rugged shore line. There are other facts which take this case out from the rule followed and announced in the Welder case. These facts and circumstances, which to me have a direct bearing surrounding the execution of the deed from respondent to petitioners, are set out in petitioners’ brief and copied here:
“Of paramount significance here is the fact that the uppermost portion of the ranch, the land conveyed by Respondent to Petitioners Heckman and Ulbricht, and referred to by the witnesses as Rocky Ridge (or Rocky Point) and Cedar Springs Pastures, was cut off from the rest of the ranch by the formation of the lake. This results from the fact that there is a depression or valley referred to in the record as the ‘North Slough,’ and extending across the fence line into Dorbandt’s land at the point marke ‘X’ on the large L.C.R.A. map, which became filled with water as part of the lake. Rocky Ridge and Cedar Springs Pastures, the cut-off part of the ranch is largely a peninsula projecting into the waters of the lake. For the court’s convenience a map of this part of the ranch and the surrounding area is attached to this Application.
“While Rocky Ridge and Cedar Springs Pastures had. some value as ranch property at the time of the deed the greatest value and highest and best use of this land was for the lake front development purposes. Respondent, desiring to raise some money, was motivated to sell this portion of the ranch because it was isolated from the rest of her property. She accordingly authorized Mr. Gibbs, according to his testimony, ‘to sell that portion of the ranch lying above the slough.’ Respondent’s letters to Mr. Gibbs show clearly that she was aware of the additional value of this land because of its lake frontage, and that she authorized Mr. Gibbs to sell Rocky Ridge and Cedar Springs Pastures. This land, i.e., Rocky Ridge and Cedar Springs Pastures, was a specific and definite part of the ranch; and there is no evidence whatever to show that the beaches, or the land below the 1020’ contour line was not a part of these pastures. The property was used in solido including the beaches, and no fence separated the beaches from the upland. There were fences along the inland boundaries of the property — the one on the north line extending into the lake; but the water in the lake was the only visible demarcation of the lakeward boundaries. *625Up to the time of the deed the only use which had been made of the property was for ranch purposes. There were no water wells, and from the standpoint of grazing land, the lake front was necessary to provide livestock access to the water. In offering the property to Petitioners Heckman and Ulbricht, Mr. Gibbs as Respondent’s agent, offered it to them in its entirety as lake front property, exhibiting the large L.C.R.A. map upon which it was graphically demonstrated that the land offered abutted upon the waters of the lake. Both Heckman and Ulbright coroborated (sic) Mr. Gibbs’ testimony in this respect, and stated that he represented it had several miles of lake front —‘approximately 314 to 4 miles.’ They said he offered them that portion of the ranch lying north of the slough. In Waco, according to Mr. Ulbricht, Respondent represented that the property being sold ‘had a good lake front,’ that it would make a good lake front development; and she also said that ‘if the lake goes down you will have more land than indicated’ on the map. As ranch land the property was worth considerably less than it was for lake front development purposes, the latter being the purpose for which Heckman and Ulbricht, bought it. The price they paid for it, $15,000.00 was three times more than Respondent could have sold it to her neighbor, Dorbandt, for ranch purposes and Heckman and Ulbricht would not have purchased the land or paid that price without frontage on the lake.”
Respondent’s deed of June 18, 1947 describes the land conveyed as adjacent to the waters of Buchanan Lake, and in the fifth call of the field notes, being the first call for the contour line, it states: “Thence up and down the meanders of Cedar Springs Creek with the meanders of the 1020 elevation contour line.” After crossing a small peninsula 440 feet in width,'the field notes continue around the main peninsula with the meanders of the 1020 foot contour line. Thus, the deed shows on its face, in its first references to the contour line, that this line was intended as synonymous with a meander line of the lake, since the mouth of the creek, like any of the sloughs and other indentations along the lake shore, is obviously a part of the lake.
Another significant fact showing that respondent conveyed the land below the 1020 foot contour line is that, while expressly reserving l/16th of the minerals, the deed contains no reservations of any of respondent’s rights, title, or interests below the 1020 foot contour line, being that part of land encumbered by the Lower Colorado River Authority easement. There is other evidence, in addition to that pointed out heretofore, which sup*626ports the trial court’s finding that the deed was intended to convey land abutting upon Lake Buchanan. A careful reading of the Welder case indicates to me most conclusively that the case has no application to the record as made in the present case. In the Welder case, the land under Green Lake was never conveyed. In the present case we have a conveyance by respondent, a private individual, of land bordering upon an easement, the Lower Colorado River Authority easement, with the grantor (respondent), not the state, owning title under the easement. In other words, respondent’s fee simple title extended beyond the contour line to the east bank of the Colorado River. It seems to me that in such a situation, where the deed, as here, describes the land to the easement and no further, the title should extend to the land under the easement also. See Joslin v. State, Texas Civ. App., 146 S.W. 2d 208, wr. ref.; Rio Bravo Oil Co. v. Weed, 121 Texas 427, 50 S.W. 2d 1080, 85 A.L.R. 391; Cox v. Campbell, 135 Texas 428, 143 S.W. 2d 361; Cantley v. Gulf Production Co., 135 Texas 339, 143 S.W. 2d 912; Haines v. McLean, 154 Texas 272, 276 S.W. 2d 777.
The petitioner’s position should not be denied merely because the application of the established rules governing this case would incorporate into their deed additional acreage. See the cases of Burkett v. Chestnutt, Texas Civ. App., 212 S.W. 271, no writ history (200 acres excess); McCombs v. McKaughan, Texas Civ. App., 195 S.W. 2d 194, wr. ref. (excess 597.61 acres); State v. Balli, Texas Civ. App., 173 S.W. 2d 522, 144 Texas 195, 190 S.W. 2d 71 (excess 19.35 leagues — 84,132 plus acres). Value of the land in the future seems to have no relevancy in determining the question here involved.
The deed involved here should be construed just as though Lake Buchanan was never created. The deed conveys • land to the bank of the Colorado River. In the case of Dutton v. Vier-Iing, Texas Civ. App., 152 S.W. 450, no wr. history, it was held that where land deeded by metes and bounds includes or touches the bank of a creek or river, although no reference is made to the creek or river, it will be presumed that the intention was to convey to the middle of the stream.
This Court announced the correct rule and the one applicable here, in the case of Strayhorn v. Jones, 157 Texas 136, 300 S.W. 2d 623, 634, when it said:
“We hold that when a private person (including corporations, etc.) conveys title to land owned by him abutting a stream *627—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. * *
In this case we held that under the meander-line theory, the river, and not the line along the bank or the survey line as relocated on the ground, was the boundary and that the deeds conveyed title to the center of the stream. Under this holding, petitioners are entitled to judgment for the land below the 1020 foot contour line as well as the 386 acres. It naturally follows that petitioners should have all the rights not now held by Lower Colorado River Authority under its easement. Petitioners own the legal title, subject only to the easement. I would enter judgment for petitioners for the 386 acres, and also award them title to the lands in the John B. Loveridge Survey No. 90 and the John St. Clair Survey No. 54 in Burnet County, Texas, which were formerly a part of the Friedsam Ranch and adjacent and contiguous to the 386 acres, and being the lands lying below the 1020 foot contour line and extending to the bank of the Colorado River. In my opinion, the trial court was not in error in granting petitioners title to the land below the 1020 foot contour line and to the bed of the river, and in granting them the right of access to the waters of Lake Buchanan when the water at any time should be for any reason below such line.
Opinion delivered June 24, 1959.