Opinion
No. 306.
October 22, 1914. Rehearing Denied November 12, 1914.
Appeal from District Court, El Paso County; A. M. Walthall, Judge.
Action by H. C. Marks against E. Sambrano and another. From a judgment for defendants, plaintiff appeals. Affirmed.
Burges Burges, of El Paso, for appellant. Ballard Coldwell and C. W. Croom, both of El Paso, for appellees.
Appellant, H. C. Marks, as plaintiff, sued E. Sambrano and Santos Lucero as defendants, for title and possession of certain land situated in El Paso county. Plaintiff alleged that he owned in fee simple a tract of land which, at the time he purchased same, did not abut upon the Rio Grande river, but that between his tract of land and the Rio Grande river was a tract of land owned by defendant Sambrano, which latter tract abutted upon the Rio Grande river; that thereafter, by erosion, the Rio Grande river destroyed the Sambrano tract and a large part of the tract belonging to plaintiff, the tract belonging to the plaintiff thereby becoming riparian to the said river. Subsequent to the destruction of the Sambrano tract the river again changed its course, whereby a large quantity of land accreted to the tract belonging to the plaintiff, and plaintiff became the owner thereof in fee simple. Plaintiff alleged, further, that immediately upon the formation of the accretion to his tract, he went into possession thereof, inclosed same with fences, was in quiet possession, use, and enjoyment, when, on or about September 1, 1912, the defendants Sambrano and Lucero unlawfully entered upon his accreted land, ejected plaintiff therefrom, and destroyed his fences. Plaintiff prayed for injunction, title, and possession. Temporary injunction was granted. The defendants answered by general and special exceptions, general denial and plea of not guilty, and, specially answering, set up fee-simple title to certain land described lying between the tract belonging to the plaintiff and the Rio Grande river, also specially denying that there had been any erosion of the lands belonging to defendant Sambrano, or that there had been any accretion to the land owned by the plaintiff; that the changes in the geography, topography, or boundaries, if any, were caused by a temporary flooding of the Rio Grande in the spring or summer of the year 1912. The cause was tried before the court without a jury, resulting in judgment for plaintiff quieting his title and possession to certain land as was owned by him before the changes of the river, perpetuating the injunction thereto, also judgment for defendants that plaintiff take nothing by his suit against them as to certain land lying between the plaintiff's said tract of land and the Rio Grande river, and, further, that the defendant Lucero was found not to own any part of the lands in controversy. From the judgment the plaintiff appeals. The record does not show any findings of fact or conclusion of law of the trial court.
The first and fourth assignments, with their propositions, charge that the court erred in holding that the channel or bed of the river changed by avulsion, because the facts show that both changes were erosive.
The second and third assignments charge that the court erred in holding that the lands in controversy were overflowed and thereafter reappeared, because the evidence shows that they were totally destroyed.
The fifth, sixth, and seventh in effect is that the first change of the river was by erosion, and that by reason thereof the land became Mexican territory, subject to the laws of Mexico, and that the second change was such as to transfer it to the United States, and then subject to the laws of the United States, and that, the plaintiff having taken peaceable possession, the courts of this state will protect such possession against naked trespassers, as was defendant, because he (defendant) having lost his land to the riparian owner across the river, by reason of an erosive change, when it came back to the United States side of the river, if by avulsion, the ownership of the Mexican riparian land followed it here, and if by erosion, then, plaintiff's land being the land next to the river, such land became attached to plaintiff's holding, and could not be taken by defendant.
It will be noted that the form of the several assignments of error is such that they charge that the court erred in its holdings upon the law and fact. There is no finding of fact and conclusions of law in the record, so there is nothing in the record to which these assignments are addressed, but the assignments will be disposed of as though they charge that the court erred in not holding the converse of the propositions presented.
The holdings of the court which were necessary as a basis for the judgment entered, and to which the assignments of error are directed, being questions of fact, and there being no assignment raising the question of preponderance of the evidence, this court can only look to the facts to see if there be sufficient evidence to support the judgment entered.
The principles of law invoked are well settled, and are not difficult of application to the facts of this case. The question for the trial court and for this court to determine is: Was the change in the bed of the river the result of erosion or avulsion? The appellees claim that it was the latter, and the appellant claims that it was the former. And the appellant should have recovered the lands sued for if the trial court had made his finding that way and the facts adduced upon the trial had been sufficient to sustain such finding, but we have carefully considered the statement of facts, and upon such conclude that both changes in the river, i e., from north to south, then from south to north, were avulsive. Denny v. Cotton, 3 Tex. Civ. App. 634, 22 S.W. 122, Thomas Jeffries v. East Omaha L. Co., 134 U.S. 178, 10 Sup.Ct. 518, 33 L.Ed. 872, and Nebraska v. Iowa, 143 U.S. 359, 12 Sup.Ct. 396, 36 L.Ed. 186. At least there is sufficient evidence to this effect to sustain the judgment of the trial court.
If the trial court determined that the change in the river was avulsive in the first place, as we think the facts justify, there was never any change of ownership of the lands, but when they were shifted to Mexico, if they were, by an avulsive change, under the authorities cited, and all others, their ownership did not shift, so when they were again on the north side of the river, the rules of law as applied in the United States applied, that is, they were still owned by the appellees; hence the principles of law invoked by the fifth, sixth, and seventh assignments are not well taken.
But the evidence plainly shows that the changes in the Rio Grande river were caused by the flood of 1911 and 1912, and at most the lands of appellee were simply submerged during the immediate times by flood waters which afterwards receded (as contended by appellee in brief); under such circumstances, appellee was never divested of his title to the lands. 29 Cyc. 352; Farnham on Waters Water Rights, arts. 74 and 842; Gould on Waters (3d Ed.) arts. 158-351; Mulry v. Norton, 100 N.Y. 424, 3 N.E. 581, 53 Am.Rep. 206; Stockley v. Cissna, 119 F. 829, 56 C.C.A. 324; City of St. Louis v. Rutz, 138 U.S. 226, 11 Sup.Ct. 337, 34 L.Ed. 941; Hughes v. Birney, 107 La. 664, 32 So. 30.
Finding no error in the record the judgment of the lower court is affirmed.
Affirmed.
WALTHALL, J., did not sit in this case.