Floyd W. Watkins v. Fort Worth MAR-G, LTD.

Watkins v. Ft. Worth MAR-G Ltd IN THE TENTH COURT OF APPEALS No. 10-03-191-CV      FLOYD W. WATKINS,                                                                               Appellant      v.      FORT WORTH MAR-G, LTD.,                                                                               Appellee From the 18th District Court Johnson County, Texas Trial Court # C200100446                                                                                                                 MEMORANDUM OPINION                                                                                                                       Floyd W. Watkins filed a declaratory judgment action to determine the validity of a lease between his successor in interest and Fort Worth Mar-G, Ltd. The trial court granted Fort Worth Mar-G’s summary judgment motion, and Watkins appealed.       The parties have now filed a “Joint Motion for Dismissal of Appeal.” They state that they have settled their dispute and request that we reverse the judgment and remand this cause to the trial court for entry of judgment in accordance with the settlement agreement.       Rule of Appellate Procedure 42.1(a)(2) provides: (a) The appellate court may dispose of an appeal as follows: (2) By Agreement. In accordance with an agreement signed by the parties or their attorneys and filed with the clerk, the court may:                    (A)render judgment effectuating the parties’ agreement;                    (B)set aside the trial court’s judgment without regard to the merits and remand the case to the trial court for rendition of judgment in accordance with the agreement; or                    (C)abate the appeal and permit proceedings in the trial court to effectuate the agreement. Tex. R. App. P. 42.1(a)(2).       Although the parties have not provided a copy of their settlement agreement as contemplated by Rule 42.1(a)(2), they have provided a copy of an agreed order for dismissal of the underlying suit with prejudice. Accordingly, we set aside the judgment and remand this cause to the trial court for rendition of judgment in accordance with the settlement agreement.                                                                    PER CURIAM Before Chief Justice Gray,       Justice Vance, and       Judge Allen (Sitting by Assignment) Judgment set aside and remanded Opinion delivered and filed December 31, 2003 [CV06] odology; (2) asserted factual and legal conclusions; and (3) failed to describe the nature of the object measured.[2] Jones’s affidavit states that he has been a survey technician for R.E. Wallace and the Wallace Group, Inc.[3] for eleven years and was assigned to measure the average width of Hog Creek from its mouth up to a low water crossing in Coryell County approximately 2.7 miles northwest of the intersection of County Road 224 and FM Road 217. His attached report states that he personally measured the width of Hog Creek at seven specified locations (marked on an attached map), and those measurements ranged from 56 feet to 100 feet: 60, 79, 56, 70, 90, 100, and 97 feet. Jones’s affidavit then states that the average width of Hog Creek from its mouth at Lake Waco upstream to the low water crossing in Coryell County exceeds 70 feet.            We find no law mandating a certain method for measuring a stream’s width for the purpose of determining its navigability under section 21.001(3) of the Natural Resources Code. See In re Adjudication of Water Rights of Upper Guadalupe Segment of Guadalupe River Basin,  625 S.W.2d 353, 362-63 (Tex. Civ. App.—San Antonio 1981) (“The statute provides no precise method of measurement for determining if a stream maintains an average width of thirty feet from the mouth up. We have found no case which absolutely mandates any certain method be used.”), aff’d, 642 S.W.2d 438 (Tex. 1982); Motl v. Boyd, 116 Tex. 182, 286 S.W. 458, 467-68 (1926) (describing a stream’s components and measuring it). We disagree with Hix that the use of gradient boundary methodology was required in this case. Cf. Brainard v. State, 12 S.W.3d 6, 15-16 (Tex. 1999) (stating that survey marking boundary line must comport with the gradient boundary methodology), disapproved on other grounds by Martin v. Amerman, 133 S.W.3d 262, 267-68 (Tex. 2004). We find that Jones’s affidavit testimony about the average width of Hog Creek is appropriate lay witness opinion evidence. See Tex. R. Evid. 701 (lay witness may give testimony in the form of an opinion that is rationally based on perception of the witness and helpful to a clear understanding of the testimony or the determination of a fact in issue). It also is clear, positive, direct, otherwise credible and consistent, and it could have been readily controverted by Hix. See Tex. R. Civ. P. 166a(c). We overrule issue four. Because the Jones affidavit alone supports the trial court’s summary judgment, we need not address Hix’s objections to the Robertson and Wallace affidavits. Hix’s fifth issue complains that the trial court erred in ruling that the specified part of Hog Creek is a statutory navigable stream and in enjoining him from denying the Robertsons access to that part and to the adjoining lake. First, Hix is simply wrong in his assertion that, because the survey lines in the original patent to his land crossed Hog Creek, it was not at that time a navigable stream and cannot later be determined by judicial action to be a navigable stream. The Small Bill was enacted precisely because survey lines in patents had incorrectly crossed navigable streams, and it sought to rectify those errors by relinquishing title in the streambeds while reserving the public’s right to the waters of navigable streams. See Tex. Rev. Civ. Stat. Ann. art. 5414a, § 2; Bradford, 50 S.W.2d at 1068-72; see also In re Adjudication of Water Rights of Upper Guadalupe Segment of Guadalupe River Basin, 642 S.W.2d 438, 446 (Tex. 1982) (citing Diversion Lake, 86 S.W.2d 441, and Port Acres, 541 S.W.2d 847). And in Bradford, the supreme court stated that the navigability or nonnavigability of a stream, “in view of the very nature and importance of the matter, for obvious reasons, . . . is a question for judicial determination.” Bradford, 50 S.W.2d at 1070; see, e.g., Port Acres, 541 S.W.2d at 849 (rejecting argument that waters were not navigable at time title of underlying land was issued from State). Because the summary judgment evidence established that the part of Hog Creek in question averages more than 30 feet in width from the mouth up, we hold that the trial court did not err in finding that Hog Creek was a statutory navigable stream and in granting the Robertsons’ motion for summary judgment in that respect. See Diversion Lake, 86 S.W.2d at 444-46 (affirming injunctive relief in action between private club and individuals over alleged exclusive right to fish in lake formed by dam built on navigable stream); Port Acres, 541 S.W.2d at 849-50 (affirming injunctive relief in action between private club and individuals over alleged exclusive right to fish in waters formed out of navigable stream); cf. Taylor Fishing Club v. Hammett, 88 S.W.2d 127, 128-30 (Tex. Civ. App.—Waco 1935, writ dism’d, w.o.j.) (holding lake on private land was not navigable in fact and there was no right of public use and enjoyment, as lake was not fed by or part of a navigable stream). The trial court correctly found that Hog Creek is a statutory navigable stream and that the Robertsons and the public have a right to use and enjoy its waters. See Port Acres, 541 S.W.2d at 849-50. It also correctly found that the Robertsons and the public have a right to use and enjoy the waters of the lake formed by the damming of Hog Creek. See Diversion Lake, 86 S.W.2d at 442-46; see also id. at 446 (the “artificial change in the river and its bed did not affect the public nature of the waters and did not take away the right of the public to use them for fishing.”); id. at 444 (“In general it is held that all members of the public have a common right of fishing in navigable streams and all other public waters.”); id. at 446 (“the water of the lake, notwithstanding the fact that most of its bed is privately owned, is still public water”). The trial court’s judgment, however, incorrectly states that Hog Creek and the lake in question are a navigable stream: “The Court finds that even though Hog Creek and the lake in question is not navigable in fact, it is a navigable stream as defined by Article 21.001, Natural Resources Code of the State of Texas, from its mouth up to the low-water crossing in Coryell County, Texas, approximately 2.7 miles northwest of the intersection of County Road 224 and FM Road 217.”[4] Section 21.001(3) applies to streams only, not to lakes. See Tex. Nat. Res. Code Ann. § 21.001(3); Taylor Fishing Club, 88 S.W.2d at 129. Thus, we modify that portion of the trial court’s judgment as follows: “Though neither Hog Creek nor the lake in question is navigable in fact, Hog Creek is a navigable stream as defined by Article 21.001, Natural Resources Code of the State of Texas, from its mouth up to the low-water crossing in Coryell County, Texas, approximately 2.7 miles northwest of the intersection of County Road 224 and FM Road 217.” Having overruled Hix’s issues and modified the trial court’s judgment, we affirm the judgment as modified.   BILL VANCE Justice  Before Chief Justice Gray,            Justice Vance, Justice Reyna Affirmed as modified Opinion delivered and filed October 18, 2006 [CV06] [1]              After oral argument, we requested briefing by other potentially interested parties, including the Office of the Attorney General, the Texas Water Development Board, the Texas Parks and Wildlife Department, the Texas Commission on Environmental Quality, and the Texas General Land Office. See Brown v. De La Cruz, 156 S.W.3d 560, 566 (Tex. 2004); City of San Antonio v. City of Boerne, 111 S.W.3d 22, 30 (Tex. 2003). We received one amicus brief, that of the Texas Rivers Protection Association, a Texas nonprofit corporation. [2]              Because these are alleged defects in substance, we address them even though Hix did not obtain a written ruling from the trial court on his objections. See Crow v. Rockett Special Util. Dist., 17 S.W.3d 320, 324 (Tex. App.—Waco 2000, pet. denied), disapproved on other grounds by Binur v. Jacobo, 135 S.W.3d 646, 651 & n.11 (Tex. 2004). Hix also objected that Wallace’s assertions of Hog Creek’s width and statutory navigability are hearsay. A hearsay objection to a summary judgment affidavit alleges a defect in form, and a party is required to obtain a written ruling by the trial court on defects in form. See id. Hix has thus not preserved his hearsay objection for appellate review.  [3]              Wallace’s affidavit states that he is a professional engineer and a registered professional land surveyor, and the Wallace Group does engineering and surveying. He and the Wallace Group were employed to measure Hog Creek’s width. On their measurements, Wallace’s affidavit reiterates Jones’s affidavit. Robertson’s affidavit states that, from examination and measurements, the average width of Hog Creek from its mouth up to and including a low water crossing in Coryell County, which is upstream from the lake, exceeds 60 feet. [4]              “[S]treams or lakes . . . are navigable in fact when they are used, or are susceptible of being used, in their natural and ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water; . . .” Taylor Fishing Club v. Hammett, 88 S.W.2d 127, 129 (Tex. Civ. App.—Waco 1935, writ dism’d, w.o.j.) (quoting United States v. Holt State Bank, 270 U.S. 49, 56, 46 S.Ct. 197, 199, 70 L.Ed. 465 (1926)).