By: Hegar S.C.R. No. 47
(In the Senate - Filed March 13, 2009; March 31, 2009, read
first time and referred to Committee on Jurisprudence;
April 16, 2009, reported favorably by the following vote: Yeas 5,
Nays 0; April 16, 2009, sent to printer.)
SENATE CONCURRENT RESOLUTION
WHEREAS, Grandfather's Blind, Limited, and Donner Properties
allege that:
(1) Grandfather's Blind, Limited, owns the surface of
a body of land in Refugio County, Texas, that is estimated to
contain approximately 3,800 acres and that is commonly known as
"Negley Ranch," "Swan Lake Ranch," "Duncan Point," and other names;
(2) all the surface of this property was patented by
the State of Texas into private ownership through 13 patents or
awards, dating from 1861 through 1956, that together state a
collective patented area in Refugio County of 3,827.37 acres and
included inland lake waters;
(3) in five of these patents, dated 1946 or 1952, the
state reserved as a free royalty a one-sixteenth royalty on all oil
and gas production and a one-eighth royalty on sulphur and other
minerals, and in three of these patents, dated 1956, the state
reserved as a free royalty one-eighth of all oil, gas, sulphur, and
other minerals;
(4) since the issuance of the patents, various
landowners, mineral owners, and others have relied in good faith on
these patents, including the free royalty mineral reservations
stated therein, and with the exception of those free royalty
mineral reservations, all the minerals within the boundaries
described by each of the 13 patents are today owned by Donner
Properties, except for a portion owned by ConocoPhillips;
(5) the potential value of the property for future
mineral development is currently believed to be minimal;
(6) the property, which is mostly undeveloped, offers
a wildlife habitat having importance publicly recognized by the
United States Fish and Wildlife Service of the Department of the
Interior, and the principal use of the property is recreation and
enjoyment of its natural beauty;
(7) of the property conveyed by the 13 patents,
approximately 70 percent was conveyed by means of, and is owned
under, patents whose boundaries are defined entirely or almost
entirely by metes and bounds calls of course and distance and not by
calls to any shore or waters or other natural monument;
(8) of the property conveyed by the 13 patents,
approximately 30 percent was conveyed by means of, and is owned
under, patents that have at least one boundary defined by a call to
the shore of Hynes Bay, San Antonio Bay, or Guadalupe Bayou;
(9) under timeless rules of coastal geography law, the
shores of Hynes Bay, San Antonio Bay, and Guadalupe Bayou are
continuous, can be easily located and surveyed, and for survey and
boundary purposes exist today in substantially the same locations,
without gaps, as their locations reflected by the maps, surveys,
and property descriptions filed in the General Land Office in
connection with the patents;
(10) under Section 18.033, Civil Practice and Remedies
Code, the maps, surveys, and property descriptions filed in the
General Land Office in connection with each of the 13 patents are
presumed to accurately depict the boundaries between the patents
and the adjacent state-owned lands submerged beneath Hynes Bay, San
Antonio Bay, and Guadalupe Bayou;
(11) all waters situated within the footprint of the
13 patents, being neither navigable in fact nor navigable in law,
are not in any part public water but are private water in which the
public has no right to boat or fish, and the right of the owners to
exclude the public from those waters is not subject to any public
easement or piscatory rights but is absolute and unqualified;
(12) for decades, private owners have paid property
taxes on all of the property conveyed by the 13 patents, including
the land covered by water;
(13) the General Land Office has never assigned state
lease tract numbers to any property located within the recorded
boundaries of any of the 13 patents but has created state lease
tracts adjacent to the property whose boundaries follow, adjoin,
respect, and agree with the private boundaries as shown on the maps,
surveys, and property descriptions filed in the General Land Office
in connection with the 13 patents, and the electronic "Interactive
Land/Lease Mapping System" published and maintained on the Internet
by the General Land Office also shows boundaries that agree with the
boundaries established by the patents;
(14) over time, land within the 13 patents has eroded
or accreted in various places, and as a result, some private waters
over the 13 patents are not physically separated by land from public
waters of adjacent bays;
(15) members of the public, especially during hunting
season, have invaded and disturbed the owners' peaceful enjoyment
of their property, creating an unreasonable risk of breaches of the
peace, potential premises liability issues, and other problems
inconsistent with this state's system of property rights;
(16) the public confusion and resulting risk of injury
and harm can be dispelled, and the peace restored, only by a court
decree fixing and determining with certainty the location of the
boundary that separates the land and private water owned by the
owners under the 13 patents from the state-owned submerged land and
public water of Hynes Bay, San Antonio Bay, and Guadalupe Bayou that
surround the property on three sides, and also determining the
rights of the owners to exclude the public from the land and the
water within the bounds of the 13 patents;
(17) Grandfather's Blind, Limited, has attempted to
affirm the boundaries originally established by the 13 patents
issued by the General Land Office and has been told by the General
Land Office that it no longer owns the land covered by water;
(18) the owners do not seek recovery of monetary
damages from the state, but seek only to obtain the determination of
their boundary and determination of their rights through a court
order that:
(A) fixes and determines the boundary that
separates the land privately owned by the owners under the 13
patents from the adjacent land owned by the state;
(B) decrees that the owners have the absolute and
exclusive right to use and enjoy all of the land within the outer
perimeter of the 13 patents and to exclude the public therefrom,
including land that is covered by water;
(C) decrees that with the exception of those
certain mineral interests reserved to the state as a free royalty
under the express terms of some of the patents, all of the minerals
within the outer perimeter of the boundary established by those
patents, including minerals lying under lands covered by water, are
owned according to the terms of the conveyances made under the
patents; and
(D) decrees that the owners have the absolute and
exclusive right to use and enjoy all of the water within the outer
perimeter of the 13 patents, which is private water that is not
navigable and to exclude the public from boating on, fishing in, or
otherwise using that water; now, therefore, be it
RESOLVED by the Legislature of the State of Texas, That
Grandfather's Blind, Limited, and Donner Properties are granted
permission to sue the State of Texas, the General Land Office, and
the School Land Board subject to Chapter 107, Civil Practice and
Remedies Code; and, be it further
RESOLVED, That the suit authorized by this resolution may be
brought in Refugio or Travis County; and, be it further
RESOLVED, That the relief awarded in the suit authorized by
this resolution is limited to the relief authorized under Chapter
37, Civil Practice and Remedies Code, or Chapter 22, Property Code,
or both; and, be it further
RESOLVED, That the commissioner of the General Land Office,
and the chairman of the School Land Board, both offices currently
being held by the same person, be served process as provided by
Subdivision (3), Subsection (a), Section 107.002, Civil Practice
and Remedies Code.
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