                                 NO. 07-11-0350-CV

                           IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                   AT AMARILLO

                                      PANEL C

                              DECEMBER 12, 2012
                        _____________________________

                     BILLIE AND CAROLYN BUCKINGHAM AND
                         BRITT AND TARA BUCKINGHAM,

                                                               Appellants
                                           v.

                       JOSH MCAFEE AND SHAWN SCHOLL,

                                                               Appellees
                        _____________________________

           FROM THE 31ST DISTRICT COURT OF WHEELER COUNTY;

            NO. 12,356; HONORABLE DAVID L. GLEASON, PRESIDING
                        _____________________________

                                   Opinion
                        _____________________________


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

      In this appeal, we are asked to decide if the trial court erred in declaring that

appellants Billie and Carolyn Buckingham and Britt and Tara Buckingham (collectively

“the Buckinghams”) do not own a portion of the Red River riverbed claimed by Josh

McAfee and Shawn Scholl (collectively “McAfee”). We conclude that it did not, after

considering the arguments urged by them.
        Background

        Realty deeded to the Buckinghams surrounds the riverbed in question.                               It

encompasses all land lying south of the south bank and north of the north bank of the

North Fork of the Red River found in section 93, Block 13, H&GN RR Co. Survey,

Wheeler County, Texas.            Furthermore, they acquired the property from individuals

whom we will call the Taylors, Seagos, and Burkhalters. The Taylors, Seagos, and

Burkhalters acquired their respective interests in the land via a deed from the Glynn-

Juanita Family Limited Partnership, while the latter acquired its interest from Glynn and

Juanita Bell. In turn, the Bells took their interest via a deed from Gideon and Annie Bell

that was executed in 1941. Per the 1941 conveyance, Gideon and Annie transferred to

Glynn several sections of land in Wheeler County, including section 93, Block 13. And,

the conveyance of section 93 was described as “all of Section No. Ninety Three (93) in

Block No. Thirteen (13), except ninety (90) acres reserved for river bed, all of the above

being in Wheeler County . . . . ” While the Buckinghams consider the description of the

riverbed “except[ed]” from the conveyance to Glynn Bell as rather vague, no one

suggests that it can encompass riverbed lying in section 93 other than that claimed by

McAfee. Nor does anyone contend that the total riverbed within section 93 exceeded

the aforementioned ninety acres. 1

        Discussion

        A.      Riparian Rights

        To illustrate that they owned the riverbed at issue, the Buckinghams invoked the

doctrine of riparian rights. They describe the same as “the rights of the owners of land


        1
         As will be illustrated in footnote 2, there is no material issue of fact regarding the matter. There
are only ninety acres of riverbed in section 93 and it consists of the riverbed appended to the Red River.

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on the banks of watercourses, relating to water, its use, and ownership of soil under the

stream or river.” Per the theory, a “riparian proprietor owns the bed of the stream.” In

other words, “[w]hen a private party makes a conveyance of land bordering on a stream,

. . . the grantor [purportedly] conveys title to the one-half of the stream bed abutting his

land.” To support the proposition, they cite us to Strayhorn v. Jones, 157 Tex. 136, 300

S.W.2d 623 (1957). The actual language in Strayhorn to which the Buckinghams allude

is:

       We hold that when a private person (including corporations, etc.) conveys
       title to lands owned by him abutting a stream -- 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.

Id. at 634 (Emphasis added). Moreover, it is the italicized language in the quotation

that we find determinative here.

       As previously mentioned, Gideon Bell’s deed to Glynn Bell contained the

following language:    “except ninety (90) acres reserved for river bed.”       While that

passage mentions no metes or bounds, it nonetheless reveals a clear intent on the part

of Gideon to exclude “riverbed” from the conveyance to Glynn and his successors-in-

interest like the Buckinghams.     More importantly, the Buckinghams cited us to no

authority suggesting that the requisite “contrary intention” referred to in Strayhorn can

be satisfied only through a valid legal description of the riverbed excepted. Nor did we

find any such authority. Indeed, the Supreme Court in Strayhorn simply said that the

conveyance need only disclose a clear intention to exclude riverbed from the

conveyance, and we care not to make law by adding to that statement. Thus, the

theory of riparian rights, as explained in Strayhorn, is inapplicable here. And, because


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those from whom the Buckinghams acquired their interest in the land did not acquire the

ninety acres of riverbed, the trial court did not err in withholding title to the same from

them.

        Additionally, other evidence of record supports the accuracy of our decision. For

instance, the individual from whom Gideon Bell acquired his interest (i.e., Counts)

described the land being conveyed as “fifty (50) acres more or less out of said section

[93] lying North of the North Fork of [the] Red River.” (Emphasis added). Gideon

bought his other interest in section 93 from a person named Ford, who, in turn, bought

the land from Counts. And, the conveyance from Counts to Ford described the land

being transferred as all “of Section (93) . . . which lies South of [the] Red River; and

being five hundred acres, more or less, the north boundary of the tract hereby conveyed

being the Red River with its meanderings.” (Emphasis added). About ten years later,

Counts quitclaimed to Geneva D. Mullen (that is, McAfee’s predecessor-in-title) the

following:

        Ninety acres of land . . . known as a part of Section No. 93 . . ., the land
        conveyed being the land lying between the North Bank and South Bank of
        the North Fork of [the] Red River, according to its meanderings.

The deed to Mullen further provided that:

        [i]t is understood that this deed conveys all of the land not heretofore
        conveyed, the part that has been heretofore conveyed being in two tracts
        the First tract that is excepted being 50 acres lying North of the North Fork
        of [the] Red River, sold to Gideon Bell April 9, 1912, . . . the second tract
        being 500 acres sold by the Grantor herein in F. G. Ford by Deed dated
        October 30, 1912 . . . . This Deed is intended to convey all of my interest
        in said land that has not heretofore been conveyed.

So what we have is Counts transferring “50 acres” north of the Red River to Gideon and

“500 acres” south of the Red River to Ford. Given that a section contains six hundred



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forty acres, he was left with ninety acres comprising the land area between the north

and south boundaries of the Red River. And, it just so happens that the amount of

riverbed conveyed to Mullen was “ninety acres” or, as Counts expressly recognized via

the deed to Mullen, “all of the land not heretofore conveyed” by him. 2

          B.      Ownership In McAfee

          The Buckinghams next question whether McAfee adequately proved ownership

of the riverbed.       They preface that discussion by alleging that their “discussion on

riparian rights is the beginning, middle and end of this controversy.” We must agree

with that statement to the extent it concerns the issue of title.

          The Buckinghams do not own the riverbed. The trial court so found via its partial

summary judgment, and we find no error in that decision. Consequently, the matter of

who else may own the property is moot, at least as to the Buckinghams.                             This is

especially so since the record fails to disclose that they have the authority to assert the

rights of anyone else who may claim ownership.                      So, we need not address the

arguments contained under their issue “1B.” Moreover, our conclusion comports with

the rule mentioned by the Supreme Court in Rogers v. Ricane Enters., Inc., 884 S.W.2d

763 (Tex. 1994).

          Like here, the circumstances in Ricane also encompassed a dispute over title to

realty.       In resolving the controversy, the Supreme Court said that the claimant is

restricted to recovering upon the strength of his own title; he cannot prove ownership


          2
         Incidentally, if a section of land equals six hundred forty acres (which it does) and section 93
consists of fifty acres north of the Red River and five hundred acres south of that same river, then it must
be that ninety acres of the Red River’s riverbed comprise the remainder of that section. This is of import
because it tends to clarify whatever vagaries there may have been in the description of riverbed excluded
from the conveyance from Gideon to Glynn Bell. In other words, there is only ninety acres of riverbed in
section 93; so, the ninety acres referred to in the 1941 deed and reservation can only be that previously
given Mullen.

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based upon the weakness or shortcomings of his opponent’s claim. Id. at 768. And,

while the court was alluding to an action for trespass to try title, the logic underlying the

rule is nonetheless applicable here. Whoever says they own a parcel of realty should

be required to prove their title to same rather than simply obtain ownership because

someone else cannot show it is theirs. So, since the Buckinghams failed to establish

their title to the riverbed, we see little reason to entertain their allegations involving

whether McAfee satisfied his burden.

       C.     The Right Cause of Action

       Nor do we assign importance to the allegation that title could not be adjudicated

because the proceeding was one for declaratory judgment as opposed to an action in

trespass to try title. Interestingly, the record discloses that the Buckinghams were the

first to seek an adjudication of title via a request for a declaratory judgment. It appeared

in their counterclaim. Thereafter, McAfee sought similar relief through similar means.

Moreover, neither questioned the other’s ability to resolve the dispute via the procedural

mechanism they selected before the trial court resolved the controversy through its

partial summary judgment. So, it can be said that not only did the Buckinghams fail to

contemporaneously object to the nature of the cause of action being prosecuted, but

also invited the error of which they now complain. In either case, the complaint is

waived. See Teon Management, L.L.C. v. Turquoise Bay Corp., 357 S.W.3d 719, 726

(Tex. App.–Eastland 2011, pet. denied) (holding that the failure to complain about the

use of a declaratory proceeding to adjudicate title waives the complaint on appeal);

accord Krabbe v. Anadarko Petroleum Corp., 46 S.W.3d 308, 320-21 (Tex. App.–

Amarillo 2001, pet. denied) (concluding the same); In re Dep’t of Family and Protective



                                             6
Services, 273 S.W.3d 637, 646 (Tex. 2009) (holding that one cannot complain about

error he invited).

       D.     Attorney’s Fees

       Related to the controversy underlying our discussion in the preceding paragraph

is the topic of attorney’s fees. Such fees could not be awarded McAfee, according to

the Buckinghams, since title was at issue, the issue should have been resolved via a

suit for trespass to try title, and attorney’s fees cannot be awarded in such an action.

But, as previously concluded, the trespass to try title versus declaratory judgment

conundrum went unmentioned. This circumstance, therefore, calls into application our

holding in Krabbe v. Anadarko Petroleum. The Buckinghams “did not preserve error in

regard to the argument that attorneys' fees were erroneously awarded because the suit

was, in substance, a trespass to try title suit[;] [and,] [b]ecause the error was not

preserved and we have previously failed to find reversible error in the trial court's ruling

…[denying them title to the riverbed], we overrule . . . [the] issue.” Krabbe v. Anadarko

Petroleum Corp., 46 S.W.3d at 321.

       E.     Sufficiency of the Property Description

       Next, we address the Buckinghams’ argument that McAfee failed to establish the

location of the claimed property. It is true that a valid conveyance requires a description

(of the property being conveyed) sufficient to allow a party familiar with the locality to

identify the premises with reasonable certainty. Lowell v. Miguel R., 293 S.W.3d 764,

767 (Tex. App.–San Antonio 2009, pet. denied), citing Gates v. Asher, 154 Tex. 538,

280 S.W.2d 247, 248 (1955); see also TH Investments, Inc. v. Kirby Inland Marina, L.P.,

218 S.W.3d 173, 192 (Tex. App.–Houston [14th Dist.] 2007, pet. denied) (stating that in



                                             7
a trespass to try title action, the question is whether the land can be identified with

reasonable certainty).

      Here, we have a description of the land that includes the number of acres

conveyed (i.e., ninety), a statement that the acreage lies between the north and south

bank of the North Fork of the Red River, according to its meanderings, and a reference

to the particular section (i.e., 93), block (i.e., 13), and survey (i.e., HG&N RR Co.

Survey) in Wheeler County encompassing the land.            To this, we add our prior

observation that the only riverbed within Section 93, Block 13 of the HG&N RR Co.

Survey in Wheeler County is the ninety acres in dispute here. So, we conclude that the

description conveying the realty to McAfee’s predecessor-in-title was and is sufficient to

identify the land with reasonable certainty. See Siegert v. Seneca Resources Corp., 28

S.W.3d 680, 683 (Tex. App.–Corpus Christi 2000, no pet.) (stating the land was capable

of being described with reasonable certainty when the amount of acres was stated and

it was further described as “lying in the bend of the old Brazos River” together with

statements that the land “was formerly part of the Walter Sutherland League in Brazos

County” and that the land is “almost surrounded by the Fisher League”).

      F.     Easement by Necessity

       The Buckinghams next contend that McAfee failed to prove his claim to an

easement by necessity. We disagree.

      One may secure an easement by necessity to his property over the land of

another by proving that 1) there was unity of ownership in both properties prior to

separation, 2) access is a necessity and not a mere convenience, and 3) the necessity

existed at the time of severance of the two estates. Koonce v. J. E. Brite Estate, 663



                                            8
S.W.2d 451, 452 (Tex. 1984). It is the third element that the Buckinghams address.

They believe that McAfee failed to prove that there was no access to the riverbed when

Counts sold the land surrounding the riverbed to Bell and Ford and the riverbed to

Mullen.

       The record before us contains the affidavit of Billie Buckingham. In it, he states

that “neither Geneva D. Mullen nor any of the individuals in the chain of title from Mrs.

Mullen to the disputed acreage have had control or possession of any portion of Section

93.” A map of Section 93, also appearing in the summary judgment record, shows no

public road or easement to the ninety acres of riverbed through the surrounding land.

This is some evidence not only to support the trial court’s finding that McAfee’s

predecessor-in-title received “only an inner portion of Section 93 which was entirely

surrounded by land owned by Glynn Bell and his family” but also that access was a

necessity at the time of severance of the two estates. See City of Keller v. Wilson, 168

S.W.3d 802, 810 (Tex. 2005) (stating that a challenge to the legal sufficiency of the

evidence fails when there is some probative evidence which, when viewed in its most

favorable light, supports the trial court’s judgment).

       We overrule each issue or contention asserted by the Buckinghams and affirm

the judgment.



                                                  Brian Quinn
                                                  Chief Justice




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