
                              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 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  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 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  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 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 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  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

-----------------------
      [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.
      [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.


