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Click here for the full text of this decision FACTS:The disputed property lies near the confluence of the two rivers east of Houston near Channelview in Harris County. Tract one, which historically consisted of 27 acres, is now almost completely submerged beneath the river waters. Occasionally, tract one becomes exposed during the fall and winter months during low tide when a north wind blows. Tract two is a small parcel of land to the east consisting of 6.1 acres variously described as an island or a strip of riverbank. In November 2002, TH Investments (THI) acquired record title to tract one by a nonwarranty deed from the record owners (the Carter heirs) and also acquired tract two by quitclaim deed from the Carter heirs. The contract of sale for tract one included a notice to THI that tract one adjoined tidally influenced submerged lands of the state and that the owner of the property may gain or lose portions of the tract because of changes in the boundary caused by shifting tides. The notice also stated that no structure may be placed in, on or over state-owned submerged lands below the applicable tide line without proper permission; advised that the purchaser seek an attorney’s advice regarding the notice; and informed the purchaser that information regarding the location of the tideline may be obtained from the Texas General Land Office. When he signed the contract for sale, Earl Thrift, THI’s president, neither read the deeds himself nor engaged counsel to do so. When THI purchased the land from the Carter heirs in 2002, the Carter heirs also assigned to THI a lease with Kirby Inland Marine LP. THI, which intended to start its own barge fleeting business, then informed Kirby that it would either have to vacate the area and remove any improvements made or start paying $35,000 monthly in rent. When Kirby did not agree to THI’s demands, THI terminated the lease and threatened to evict Kirby. As a result of THI’s actions, Kirby filed suit against THI to enjoin it from interfering with Kirby’s business operations and to obtain a declaratory judgment that the state of Texas � not THI � owned tract one. Kirby later joined the Port of Houston Authority, asserting that the state conveyed ownership of the property to the port by statute. Eventually, the posture of the case evolved into, primarily, an action by THI on its counterclaims and crossclaims for trespass to try title to tracts one and two. THI claimed record title to both tracts and Kirby claimed ownership of tract two. The port claimed that it owned any part of tract one or two that was below mean high tide or was raised above mean high tide by artificial means or self-help. The trial court tried the issues in two phases. Phase one was a bench trial with THI as plaintiff on its trespass to try title action involving tract one. The trial court heard two weeks of evidence from numerous witnesses and received many exhibits into evidence. At the trial’s conclusion, the court entered detailed findings of fact and conclusions of law. It found that THI never owned tract one and that ownership of tract one passed to the port as successor to the state of Texas, because the tract became submerged below the line of mean high tide. The court also set the southern boundary for tract one. Following the bench trial, phase two proceeded on tract two. The court considered the parties’ cross-motions for summary judgment as to ownership of the tract. The court granted the port’s and Kirby’s motions for summary judgment on THI’s claim of record title to tract two, denying THI’s claim of ownership. The trial court did not determine who owned tract two. It held only that THI did not own it. An appeal followed. HOLDING:Affirmed. First, the court held that the state gained ownership of tract one, because it became submerged as a result of indistinguishable effects of erosion and subsidence. Therefore, the court found that the trial court correctly ruled that the Port of Houston Authority owned tract one. THI claimed this case fell within an exception that would allow it to continue to own land submerged under tidewaters. But the court found that these exceptions did not apply. For example, the court stated that private individuals can own submerged property if the state’s conveyance contemplated private ownership of submerged lands, but the evidence did not reflect such an intent. Also, the court found the evidence legally and factually sufficient to support the trial court’s finding that it could not ascertain the extent of erosion versus subsidence. Second, the court held that the southern boundary set by the trial court for tract one is the same as boundary set by the original 1838 survey. The parties contested the issue, because THI’s placement of the line � several hundred feet further south than the port and Kirby locate it � gave THI more land in tract one, possibly establishing that tracts one and two are contiguous and therefore bolstering THI’s claim that it owns tract two. But court affirmed the trial court’s determination of the boundary. Third, the court affirmed the trial court’s finding that THI did not own tract two. The court held that tracts one and two were not contiguous and therefore tract two could not have passed under the strip-and-gore doctrine as a strip or gore legally attached to tract one. Thus, the court held that the trial court properly granted Kirby and the port’s motions for summary judgment and also properly denied THI’s motion for summary judgment. OPINION:Fowler, J.; Hudson, Fowler and Seymore, J.J.

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