Full opinion text
CORRECTED OPINION WANDA McKEE FOWLER, Justice. We originally issued our opinion affirming the trial court’s judgment on January 9, 2007. On Kirby Inland Marine, L.P.,’s unopposed motion to correct the opinion, we withdraw our previous opinion and substitute this corrected opinion in its place. This appeal by a private landowner, TH Investments (“THI”) against the Port of Houston Authority and Kirby Inland Marine, asks us to decide who owns two tracts of property on the Old River and the San Jacinto River. As will be discussed in greater detail below, both rivers are subject to the tides. Three broad issues — and many sub-issues — are presented. The first two issues pertain to the first tract, Tract 1. We first must determine whether the State has gained ownership of it because the property is covered by shallow tidal waters. Second, we are asked to decide if the location the trial court chose for the southern boundary of Tract 1 coincides with the boundary set by the original 1838 survey of the property. The third issue involves Tract 2. We are asked to decide whether THI owns Tract 2. In the body of the opinion we will address the many sub-issues, but for purposes of this overview, we hold the following regarding the three broad issues. First, the State did gain ownership of Tract 1 because it became submerged as a result of indistinguishable effects of erosion and subsidence. Therefore, the trial court correctly ruled that the Port owns Tract 1. Second, the southern boundary set by the trial court for Tract 1 is the same as boundary set by the original 1838 survey. Third, as the trial court held, THI does not own Tract 2. In short, we affirm the trial court’s rulings. Factual and Procedural Background The property lies near the confluence of the Old River and the San Jacinto River, east of Houston near Channelview, in Harris County, Texas. Tract 1, which historically consisted of 27 acres, is now a “flat,” almost completely submerged beneath the waters of the two rivers. Occasionally, Tract 1 becomes exposed during the fall and winter months during low tide when a north wind blows. Tract 2 is a small parcel of land to the east consisting of 6.1 acres variously described as an island or a strip of riverbank. The two tracts are sometimes identified by their acreage as “the 27 Acre Tract” and “the 6.1 Acre Tract.” The area around the property is subject to significant commercial maritime use, as well as occasional use for recreational purposes by pleasure craft and for fishing. What follows are the relevant facts framing the dispute; more specific details are developed in the discussion of the issues. THI’s Purchase of the Property In November 2002, THI acquired record title to Tract 1 by a non-warranty deed from the record owners, known collectively as the “Carter Heirs,” and acquired Tract 2 by quitclam deed from the Carter Heirs. The contract of sale for Tract 1 included an “Addendum for Coastal Area Property,” which provided to THI the following notice: NOTICE REGARDING COASTAL AREA PROPERTY 1. The real property described in and subject to this contract adjoins and shares a common boundary with the tidally influenced submerged lands of the state. The boundary is subject to change and can be determined accurately only by a survey on the ground made by a licensed state land surveyor in accordance with the original grant from the sovereign. The owner of the property described in this contract may gain or lose portions of the tract because of changes in the boundary. 3. State law prohibits the use, encumbrance, construction, or placing of any structure in, on, or over state-owned submerged lands below the applicable tide line, without proper permission. 4. The purchaser or grantee is hereby advised to seek the advice of an attorney or other qualified person as to the legal nature and effect of the facts set forth in this notice on the property described in and subject to this contract. Information regarding the location of the applicable tide line as to the property described in and subject to this contract may be obtained from the surveying division of the General Land Office in Austin. (emphasis added). When he signed the contract for sale, THI’s president, Earl Thrift, 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, L.P. 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. The Lawsuit 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 l. Kirby later joined the Port, 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 cross-claims for trespass to try title to Tract 1 and Tract 2. THI claimed record title to both tracts, and Kirby claimed ownership of Tract 2. The Port claimed that it owned any part of Tract 1 or 2 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 1 was a bench trial with THI as plaintiff on its trespass to try title action involving Tract 1; the parties presented evidence on the ownership and boundaries of the tract. The trial court heard two weeks of evidence from numerous witnesses and received many exhibits into evidence. At the conclusion of the trial, the court entered detailed findings of fact and conclusions of law. It found that THI never owned Tract 1 and that ownership of Tract 1 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 1. Following the bench trial, Phase 2 proceeded on Tract 2. 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 2, denying THI’s claim of ownership. The trial court did not determine who owned Tract 2; it held only that THI did not own it. At the conclusion of phase 2, the trial court signed a final judgment incorporating its earlier orders and attaching as an exhibit its findings of fact and conclusions of law entered after Phase 1. This appeal followed. I. Part 1: Ownership of Tract 1 We turn now to the first general area of contention, the ownership of Tract 1. In Part 1 of its brief, THI claims that it, not the Port, owns Tract 1 because this case falls within an exception to the general rule that the State owns all property covered by tide waters. This claim is based on two concepts it argues apply here and on several allegedly erroneous findings of fact the trial court entered. The two concepts are that (1) private owners can own property under tide waters, and (2) if the property is submerged under tide waters because of subsidence, the general rule that the state owns submerged lands does not apply. THI interweaves these two concepts throughout six issues: (1) the trial court erred by holding that THI lost its riparian land to the Port as the land subsided and most of it became shallowly submerged beneath the waters of the Old River; (2) the trial court erred by not following Coastal Industrial Water Authority v. York, 532 S.W.[2d] 949 (Tex.1979); (3) the trial court’s ruling constitutes a taking in violation of the Texas and United States Constitutions; (4) no evidence or insufficient evidence supports the trial court’s finding reciting that the extent to which subsidence versus erosion contributed to the submergence of Tract 1 cannot be determined, or alternatively, the trial court misplaced the burden of proof and applied incorrect legal standards; (5) no evidence or insufficient evidence supports the trial court’s findings that a boundary of Tract 1 described as “the meanders of Old River” cannot now be identified or located, and that the tract cannot be distinguished from the bed of Old River, or alternatively, the trial court applied the wrong standard; and (6) no evidence or insufficient evidence supports the trial court’s findings that the entirety of Tract 1 became submerged at some time in the past and that the portions of the tract that now lie above mean high water re-emerged as the result of the deposit of dredge spoils by Kirby and its predecessor, Western Towing. Before we address THI’s specific issues and the two concepts underlying them, we will review generally the law that applies to riparian and littoral owners. A. Tract 1 is Under Tidal Waters which Typically are Owned by the State. 1. The State Presumptively Owns Lands Lying under Tidal Waters. Generally, “[t]he soil covered by the bays, inlets, and arms of the Gulf of Mexico within tidewater limits belongs to the State, and constitutes public property that is held in trust for the use and benefit of all the people.” Lorino v. Crawford Packing, 142 Tex. 51, 175 S.W.2d 410, 413 (1943). Section 11.012(c) of the Texas Natural Resources Code echoes the Lori-no holding: “The State of Texas owns the water and the beds and shores of the Gulf of Mexico and the arms of the Gulf of Mexico within the boundaries provided in this section, including all land which is covered by the Gulf of Mexico and the arms of the Gulf of Mexico either at low tide or high tide.” Tex. Nat. Res.Code § 11.012(c). “[N]avigable waters and streams are reserved to the State for the use of the public generally, and no one should have an exclusive right to the enjoyment of such property, unless and until the Legislature has granted such right.” Lorino, 175 S.W.2d at 414. Thus, two presumptions arise regarding submerged lands: (1) they are owned by the State and (2) the State has not acted to divest itself of title to them. See, e.g., Lorino, 175 S.W.2d at 414; City of Galveston v. Mann, 135 Tex. 319, 143 S.W.2d 1028, 1033 (1940); State v. Bradford, 121 Tex. 515, 50 S.W.2d 1065, 1069 (1932); Landry v. Robison, 110 Tex. 295, 219 S.W. 819, 820 (1920); City of Galveston v. Menard, 23 Tex. 349, 392 (1859). Addressing these presumptions, the Lorino court explained that “land under navigable waters is withdrawn from the general provisions of the statutes conferring upon the Land Commissioner the right to contract for the sale or lease thereof.” Lorino, 175 S.W.2d at 413. Instead, only the Texas Legislature may convey submerged tidal lands. See id. at 414. The Court explained the reason for this rule as follows: It has always been the policy of the State to dispose of ordinary public lands to settlers, and under usual circumstances it may be presumed that the State has parted with title; but navigable waters and streams are reserved to the State for the use of the public generally, and no one should have an exclusive right to the enjoyment of such property, unless and until the Legislature has granted such right. Therefore, it has been the policy of the State to retain title to lands covered by navigable waters, and the presumption is that there has not been any act of the State divesting itself of title. Id. at 414 (citing Bradford, 50 S.W.2d at 1069). The public policy that informs the presumption of State ownership is also reflected in the Texas Legislature’s 1927 conveyance to the Port’s predecessor, a political subdivision of the State. The Legislature conveyed to the Port’s predecessor all of the submerged lands “as now or hereafter located” in the areas presently at issue, including those lands submerged beneath the waters of the Old River and the San Jacinto River. See Act of April 5, 1927, 40th Leg., R.S., ch. 292, 1927 Tex. Gen. Laws 437, 438. This conveyance included “all the submerged lands lying and being situated under the waters of ... San Jacinto River ... [and] ... Old River ... so far up said streams as the State may own same, together with all lands lying and being situated under the waters of Old River ... and all other tidal flats or overflow land adjacent to or appurtenant to the above mentioned streams .... as now or hereafter located....” Id. at 438, § l. The Legislature directed the Port to administer these lands “for public purposes and the development of commerce only” in connection with the development of the Port of Houston. Id. The Legislature also directed that the Port was not at any time to “give or alien said lands or any part thereof’ and empowered the Port to “abate and remove any and all encroachments or structures of any kind now or hereafter existing on such property.” Id. at 439, §§ 2, 3. 2. Unchallenged Findings of Fact State that the Land is Under Tide Waters. The trial court entered a fact finding, unchallenged by THI, that the waters of Old River and the San Jacinto River are navigable. Also unchallenged by THI is the trial court’s finding that the land is subject to the ebb and flow of the tide, is within the tidewater limits of the Gulf of Mexico, and is tidally influenced: The water over, around and in the area of the 27-Acre Tract is subject to the ebb and flow of the tide, being within the tidewater limits of the Gulf of Mexico. The waters of Old River and the San Jacinto River likewise are tidally influenced in the area in question. The facts in the record demonstrate the area is tidally influenced. The parties likewise stipulated the area is tidally influenced. 3. The Boundary between Public Submerged Tidal Lands and Private Lands Derived from a Common-Law Grant is Mean High Tide. The Texas Supreme Court long ago announced the boundary between State and private ownership of submerged tidal lands. For common law land grants, the boundary is the line of mean high tide; for Spanish or Mexican grants, it is the line of mean higher high tide. See Luttes v. State, 159 Tex. 500, 324 S.W.2d 167, 175 (1958) (civil law); Rudder v. Ponder, 156 Tex. 185, 293 S.W.2d 736, 741 (1956) (common law); see also Kenedy Mem’l Found. v. Dewhurst, 90 S.W.3d 268, 270 (Tex.2002) (applying rule of Luttes to locate shoreline boundary). Because the property at issue passed under a common law grant, the boundary line that applies here, in the absence of any exception, is the line of mean high tide. This boundary is not static. The boundary moves because the line of the tide moves over time, and as that line moves, so does the boundary between State-owned submerged lands and privately owned uplands. See Brainard v. State, 12 S.W.3d 6, 17 (Tex.1999) (“Texas follows the general rule that when the location of the margin or bed of a body of water that constitutes the boundary of a tract of land is gradually and imperceptibly changed or shifted by accretion, reliction, or erosion, the margin or bed of the body of water, as so changed, remains the boundary line of the tract, which is extended or restricted accordingly.”); Coastal Indus. Water Auth. v. York, 532 S.W.2d 949, 952 (Tex.1976) (“The general rule is that a riparian or littoral owner acquires or loses title to the land gradually or imperceptibly added or taken to or from his fast bank or shore.”); City of Port Isabel v. Mo. Pac. R. Co., 729 S.W.2d 939, 942 (Tex.App.-Corpus Christi 1987, writ ref'd n.r.e.) (“[T]he location of the shoreline, wherever it may be at any given time, represents the boundary of a littoral owner’s property.”); City of Corpus Christi v. Davis, 622 S.W.2d 640, 643 (Tex.App.-Austin 1981, writ ref'd n.r.e.) (“With respect to the landward advance of the line of mean high tide, the Supreme Court has written that if the sea encroaches and the upland owner loses his land, he has no redress.”) (citing State v. Balli, 144 Tex. 195, 190 S.W.2d 71, 100 (1944)). The tide is not the only factor changing the boundary. It also can be changed by nature’s forces — primarily water — that add to or subtract from a body of land. Additions to land generally are created by accretion or reliction. Brainard, 12 S.W.3d at 17. With accretion, land increases gradually and imperceptibly when water deposits solid material so that land once covered by water becomes dry. Id. Reliction occurs when previously submerged land is uncovered by permanently receding water. Id. Decreases in tidal lands generally are caused by erosion, which gradually and imperceptibly wears away the land. See York, 532 S.W.2d at 952. All of these processes may cause a riparian or littoral owner to gain or lose title to the land. B. This Case Does Not Fall Under Any Potential Exceptions or Case Law THI Cites. With these general legal principals in mind, we turn now to the exceptions and case law THI claims apply. THI claims this case falls within one of several exceptions that would allow it to continue to own land submerged under tide waters. First, THI refers us to at least one case in which the State has conveyed land to an individual. Second, THI relies heavily on Coastal Industrial Water Authority v. York and its holding that an individual owned property beneath the San Jacinto River that became submerged because of subsidence. THI also cites us to a handful of appellate court opinions it claims allowed individuals to continue owning land that became submerged. We consider these claims below. However, as we explain, we disagree that either claimed exception applies here, and, in light of Luttes, Rudder, Lorino, Brai-nard, and Kenedy Memorial Foundation — the seminal cases explaining the boundaries between state-owned and privately owned land — we find the cited case law either of questionable validity or distinguishable. See Luttes v. State, 159 Tex. 500, 324 S.W.2d 167 (1958); Rudder v. Ponder, 156 Tex. 185, 293 S.W.2d 736 (1956); Lorino v. Crawford Packing, 142 Tex. 51, 175 S.W.2d 410 (1943); Brainard v. State, 12 S.W.3d 6 (Tex.1999); Kenedy Mem’l Found. v. Dewhurst, 90 S.W.3d 268 (Tex.2002). 1. Private Individuals Can Own Land Conveyed to Them by the State Even When the Land is Under Water. a. Submerged property conveyed by the State can be owned by a private individual if the conveyance contemplated submerged land. Property conveyed by the State to an individual can remain privately owned even if it is submerged under tide waters — but only under very special circumstances in which the State manifested its intent that the private landowner continue to own the property even if submerged. An example of a case in which the Texas Supreme Court found that a private individual owned shallowly submerged flats is City of Galveston v. Menard, 23 Tex. 349 (1859), involving Galveston Island, located in the tidal waters of Galveston Bay. Me-nard, as the original grantee of the state, claimed that he owned the submerged flats because they were sold to him through a legislative grant by the Republic of Texas in 1836 and through a patent issued in 1838. Id. at 391. The City claimed that the 1836 grant did not include the flats, and that they remained in republic and state ownership until a later date, when the Texas Legislature conveyed the flats to the City. Id. The Court recognized the well-established common-law doctrine that an ordinary grant of land upon a bay, where the tide ebbs and flows, “does not convey the shore or any of the land of the bay covered with water;” Id. at 396. But, based on the object of the grant, its location, and the acts of the contracting parties, the Court determined that the Legislature intended to convey the submerged flats to Menard, specifically to encourage the construction of a port of entry for commercial activities and promote the building of a city on Galveston Island. Id. at 398-408. Me-nard’s rights were limited only by the City’s right to build and regulate the wharves and to open, improve, and use streets across the property out to the channel. Id. at 408. b. Tract 1 was dry land when conveyed by the State. This appeal does not involve a conveyance like Menard. Although THI attempts to overcome the presumption of state ownership by showing that the Republic of Texas patented Tract 1 and other property into private ownership in 1845, the only land that THI’s predecessors received from the patent was a grant of dry land. THI does not contend that the State granted to its predecessors any submerged lands. Indeed, THI states in its briefing that “[i]t is undisputed that Tract 1 was dry land at the time of the ... Grant.” One may not convey more than one owns, and in this case, it is undisputed that the 1845 patent did not convey any submerged property. Nor do we find any evidence that the grant contemplated ownership by an individual if the property became submerged. Therefore, the patent does not overcome the presumption of state ownership. See Lorino, 175 S.W.2d at 414; Mann, 143 S.W.2d at 1035; City of Port Isabel, 729 S.W.2d at 942-43. Thus, although private individuals can own submerged property if the State’s conveyance contemplated private ownership of submerged lands, the State’s patent concerning Tract 1 did not reflect an intent that it remain in private ownership if it became submerged. 2. York and Any Exceptions it Creates Do Not Apply. We now turn to THI’s claim that Coastal Industrial Water Authority v. York, 582 S.W.2d 949 (Tex.1976), creates an exception to the general rule of state ownership of submerged lands, that York controls the outcome of this appeal, and that the trial court erred when it refused to apply it. We disagree and explain below that York is distinguishable from this case in several important respects. a. Two defining and narrowing facts in York distinguish it from this appeal. In York, the Water Authority sought to condemn York’s land near the San Jacinto Monument. 582 S.W.2d at 951. A survey of York’s property in 1950 showed 28.083 acres above the water level, but when the Water Authority commenced condemnation in 1970, only 24.73 acres lay above water — a difference of 3.353 acres. Id. York’s land indisputably was in an area where the land surface had been slowly subsiding during several decades because area industries and municipalities had removed enormous amounts of underground water. Id. As the land subsided, the adjacent waters encroached upon and submerged the land. Id. York argued, and the lower courts agreed, that the Water Authority should compensate York for the all of the acreage originally conveyed to him, including the 3.353 acres that had become submerged. Id. As the York court explained, the general rule is that a riparian or littoral owner loses title to land that is worn away gradually by erosion, and gains title to land added gradually by accretion. Id. at 592. However, the Court distinguished subsidence from these processes, stating that subsidence is not “an ordinary hazard of riparian ownership; it is not the result of the force of the waters which takes from some owners and gives to others.” Id. at 954. Determining that no conflict between private and public interests existed under the facts before it, the Court concluded that it was “consistent with the interests of all to permit the riparian owner to protect his land — rather than to watch helplessly as his boundary retreats.” Id. Thus, because York’s property became submerged below the water level of the Houston Ship Channel solely as a result of subsidence, the Court held that York owned the submerged land as of the date the Water Authority had sought to take York’s property by condemnation. Id. Consequently, the Water Authority was required to compensate York for the submerged property. See id. At least two courts — including the Texas Supreme Court itself — have recognized the very limited nature of the York holding. See Brainard, 12 S.W.3d at 20 (“Nonetheless, we find nothing in York’s limited holding that precludes the operation of the rules of accretion, reliction, and erosion to artificially influenced changes in a river channel.”); Davis, 622 S.W.2d at 643 (“AI-though the [York] Court reaffirmed the rules with respect to property loss and gain due to erosion and accretion, those rules were not employed by the Court in its determination that the riparian owner held title to the submerged land since there was no erosion involved, only subsidence.”). As we discuss, statements made by the York court itself limit the opinion to such a degree that it does not control our decision here, and the trial court appropriately did not apply it. (1) York did not involve land covered by tidal waters. The first, and most important, limitation of York is that it did not involve tide waters. The York court expressly stated it assumed that the tide was of no effect: “The testimony of the surveyor witnesses indicates that the level of the water upon the York land does not fluctuate with the ebb and flow of the tide, and we will assume that the tide has no effect at this point.” Id. at 951 (emphasis added). In footnote 1, the court explained that the effect of the tide on the legal outcome of the case simply was not an issue raised by the parties: “The parties have not, at any point in this litigation, made any reference to the fact or legal effect of the tide. For this reason, the court’s opinion is restricted to the issues presented by the peculiar facts of this record and the contentions of the parties.” Id. at 951 n. 1 (emphasis added). Author Justice Reavley added: “The writer of this opinion, speaking personally, chooses to emphasize the narrowness of the holding and to warn against any misinterpretation of its effect upon the boundary of private ownership to lands within reach of the tide.” Id. (emphasis added). Although the intermediate appellate court’s opinion in York did state that the property was subject to tide water, the Supreme Court expressly assumed no tide water covered the property. See id. at 951. (2) York involved only subsidence and not other forces. A second important distinction between this appeal and York, as we explain below, is that the York property was submerged due to subsidence alone. No erosion was involved. In fact, the York court recognized that the result could have been different if other forces, such as erosion, had affected the property. The Court noted “[i]t might be expected” that part or all of the contested acreage would have been eroded by the current of the water “so as to leave this three acre area indistinct from the bed of the ship channel.” Id. at 951-52. Had that happened, the Court acknowledged that “ownership would have been lost to the riparian owner ... and passed to the City of Houston under the authorities to be discussed.” Id. at 952. However, as the case was presented to the Court, “there has been no displacement of the submerged land in relation to the bed of the ship channel.” Id. In short, the two facts that define York, especially for comparison with this case are these: (1) tide waters did not cover the York property, and (2) York involved only subsidence without any erosion. b. The trial court’s findings distinguish this appeal from York. Several of the trial court’s findings relate directly to York and whether York controls this case. According to the Port, if we uphold these findings, York does not control this case. We will consider first the court’s findings that the boundary of Tract 1 cannot be distinguished from the Old River and that the boundary on one side of the property, which followed “the meanders of the Old River,” cannot be identified now. We then will turn to the findings reflecting the court’s decision that one cannot determine the extent to which subsidence, as opposed to erosion, contributed to the submergence of Tract 1. THI claims these findings are both legally and factually insufficient. A trial court’s findings are reviewable for legal and factual sufficiency by the same standards that are applied in reviewing evidence supporting a jury’s answer. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994). In determining whether legally sufficient evidence supports the trial court’s findings of fact, we consider the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005). We must credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not disregard it. See id. at 827. We must determine whether the evidence at trial would enable a reasonable and fair-minded person to find the facts at issue. See id. The factfinder is the sole judge of the credibility of the witnesses and the weight to give their testimony. See id. at 819. Evidence is conclusive only if reasonable people could not differ in their conclusions. See id. at 816. When a party attacks the legal sufficiency of an adverse finding when it had the burden of proof on the issue, it must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001). We first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Id. If no evidence supports the finding, we then examine the entire record to determine if the contrary proposition is established as a matter of law. Id. We may sustain the issue only if the contrary proposition is conclusively established. Id. In reviewing a factual insufficiency point, we consider all the evidence presented at trial. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). When a party attacks the factual sufficiency of an adverse finding on an issue on which it has the burden of proof, it must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co., 46 S.W.3d at 242. We may set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id. Unchallenged fact findings are binding on this Court unless the contrary is established as a matter of law or there is no evidence to support the finding. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex.1986). To resolve these issues, we examine the evidence presented by both side’s experts, who testified extensively concerning their opinions. (1) The boundaries of Tract 1 cannot be located. We turn now to consider the trial court’s finding that the boundaries of Tract 1 could not be located. Before addressing the fact findings THI challenges, we set out those THI does not challenge: • “A 1916 topographical map (Common Exhibit 29) shows that the land at the location in question was generally in the shape of what the parties and witnesses called a ‘Rabbit’s Head.’ No such shape can now be identified at the location in question. The shape of the tract surveyed by THI’s survey- or, Bill Merten, is called ‘Tract 1’ and differs materially in shape from the historic ‘Rabbit’s Head.’ ” • “At present, there exists at the location what the parties and witnesses have called a ‘Flat’ This Flat is typically covered by tidal waters but is occasionally uncovered, as shown by many of the photographic exhibits. While there exists a drop off to the north of the Flat, the evidence shows that this was created by dredging. The Flat extends to the south beyond the boundaries claimed by THI for the 27-Acre Tract. The topography of the Flat is generally flat, with minor differences in elevation.” THI’s expert testified that he could locate the border described as “the meanders of the Old River.” The Port’s and Kirby’s expert testified, on the other hand, that she could not find the border of Tract 1 defined by the meanders of the Old River. The dispute on this issue turned on which expert used the proper method for locating the meanders. We first review the method THI’s expert used to determine the northern and western boundaries of Tract 1. THI’s surveyor, William Merten, is a Licensed State Land Surveyor (“LSLS”) in Texas who surveyed the property for this litigation. THI hired Merten to survey all of Tract 1, but for purposes of this issue the only portion of Merten’s survey in dispute is his survey of the northern and western boundaries of Tract 1 — the “meanders of Old River.” Merten surveyed the area to the north and east of Tract 1 with the goal of locating the bank of the Old River as it was before Kirby’s predecessor dredged it out. To find this portion of the bank, Merten visually inspected the site, viewed photographs, and reviewed a Corps of Engineers dredging permit. He described his methodology as an estimate of where he believed the historic meander shoreline should have been. Merten’s “thinking was where will the line be if the barges were not there, if the area was not dredged.” So, he “came up with an estimate of— where you see here of where I believed the natural fine would be if all this man-made activity had not occurred.” Thus, Merten drew the line along the north and northeast in the dredged area based on his belief of where he believed the natural, now submerged, meander line should have been. When asked at trial whether a boundary existed on the river bottom today that someone attempting to retrace Merten’s steps could find, Merten responded, “On the river bottom, no.” To survey the boundary to the north and west, Merten employed a “probing” technique in which he walked into the water over the submerged land as he probed the bottom to locate the purported submerged bank of Old River. Merten described the “probing” as wading through the water while hanging onto a boat. He felt the bottom with his feet, alternately stepping from hard to soft ground, while taking Global Position System (“GPS”) readings at intervals so that he could connect them and draw a line. The hard ground he assumed was the former bank of Old River. Merten admitted that he had never before used “probing” to locate a submerged boundary fine. Merten also acknowledged that there were no authoritative sources stating that probing was an accepted method, and even offered (perhaps unwittingly) that “[w]e are on uncharted grounds here.” None of appellees’ witnesses testified that probing was an accepted procedure to identify a submerged boundary line in a title dispute. The Port’s surveyor, Nedra Foster, also an LSLS, testified that, given the existing site, the only way to survey the meanders today was to survey the line of mean high tide. She explained that the fine of mean high tide is the proper line to use because the chain of title for Tract 1 is derived from a common-law grant located within a tidally influenced area. Foster’s mean high water survey reflected that the only existing meander fines between upland and water are the present meanders of Old River and the San Jacinto River around an island, which is what THI calls Tract 2. Foster testified that if she literally followed an 1896 deed description, the only land above water remaining at the site would be a small site less than one tenth of an acre, described as the “Little Thumb.” She also identified two other “very small portions” of emergent land outside of the original 27-Acre Tract. Merten’s own mean high tide survey substantially agreed with Foster’s survey. THI contends that Merten’s survey of these boundaries provides undisputed evidence that a licensed surveyor could and did identify and locate the current “submerged boundaries” of Tract 1 along the meanders of Old River, while the Port’s surveyor, Nedra Foster, did not even try to survey these boundaries. THI maintains that, if it is legally permissible for a surveyor to survey the boundaries of private land that is shallowly submerged due to subsidence, then its surveys stand as undisputed evidence of the boundary. Thus, while THI complains about the trial court’s fact findings, it frames the issue as one of law. We agree with THI to the extent that the issue is one of law. The Texas Supreme Court, in discussing the determination of a waterfront boundary in Kenedy Memorial Foundation, stated, “But here, as in Luttes, the exercise is made no easier by basing the boundary determination on a surveyor’s subjective observations of the terrain. For certainty in land titles, it is important to have a rule, and the civil law as interpreted in Luttes provides one.” 90 S.W.3d at 284. Thus, the determining question here is not whether a surveyor could or did mark lines for the northern and western “meander” boundaries of the tract, but whether the surveyor properly surveyed lands bounded and covered by tidally-influeneed waters. As our discussion of the relevant law makes clear, the only valid way to survey such land is to survey the line of mean high tide. See Luttes, 324 S.W.2d at 175; Rudder, 293 S.W.2d at 741. THI argues that its land became submerged as a result of subsidence and therefore, based on the Texas Supreme Court’s holding in York, it is legally permissible to survey the submerged property. But, as we discuss in greater detail below, we reject THI’s argument that subsidence alone is responsible for the submergence of Tract 1, and therefore we reject its attempted survey of the submerged property as legally insufficient. Moreover, in a trespass to try title case, the general test for determining the sufficiency of.a description of land is whether the tract can be identified with reasonable certainty. Zobel v. Slim, 576 S.W.2d 362, 369 (Tex.1978). The 1896 Ma-gee/Hudson deed provides a metes and bounds description that includes calls to the meanders of Old River. “[M]eander lines of surveys of land adjacent to or bounding upon a stream are not to be considered as boundaries, but they are to follow the general course of the stream, which itself constitutes the real boundary.” Stover v. Gilbert, 112 Tex. 429, 247 S.W. 841, 843 (1923). Thus, there can be no “meanders” or distinct boundaries created by the course of Old River in this case when the waters of Old River cover the site. The evidence demonstrated that Merten’s hypothesized survey outline— based on purportedly submerged banks and his belief as to where the natural boundary would have been but for dredging — is not reliable. We therefore agree with the trial court’s finding that the northern and western boundaries of Tract cannot be identified or located today. We also find the evidence is legally and factually sufficient to support the trial court’s finding that Tract 1 cannot be distinguished from the surrounding area and the bed of Old River. (2) The effect of subsidence cannot be assessed. THI also complains that the trial court erred when it held that no one could assess the extent to which subsidence and/or erosion caused Tract 1 to become submerged. The trial court’s finding is set out below: The physical evolution of the 27 Acre Tract over time was caused by various natural and man-made forces, including subsidence, erosion, deposition, accretion, flooding, tidal inundation, sea level rise, dredging, dredge spoil dumping, boat wakes, storm surges, and the location of sunken barges and barge fleeting in The Big Empty. The effects of all of these varied forces on the site cannot be separated, and the extent to which subsidence versus erosion contributed to the submergence cannot be determined. THI attacks this finding, claiming that the evidence conclusively shows that subsidence caused the submergence. Alternatively, THI contends the trial court misplaced the burden of proof and applied incorrect legal standards, and the evidence is insufficient to support the finding. To resolve the issue, we examine the evidence presented by both sides’ experts, who testified extensively concerning their opinions. (i) The experts did not agree. THI relied primarily on its experts Robert Gabrysch and Dr. William Dupre. Ga-brysch is a hydraulic engineer and groundwater hydrologist with an extensive background in land surface subsidence in the Houston/Galveston area. Dr. Dupre is an associate professor at the Department of Geosciences at the University of Houston, where he has been a member of the faculty for twenty-eight years. His stated areas of expertise are in sedimentology, geomorphology, and photo interpretation. Gabrysch testified that his studies and physical inspection of Tract 1 led him to believe the amount of subsidence was probably between eight and nine feet. Dr. Dupre concurred and ultimately concluded that but for man-made subsidence resulting in groundwater withdrawal from the subsurface, Tract 1 would not be submerged today. Dr. Dupre supported his conclusion with (1) photographs of the area taken over the past 75 years showing the shape of the tract consistently shrinking and gradually sinking beneath the water, (2) historical photographs and inspection of the land showing the preservation of natural channels or splays over time, and (3) the presence of buried tree trunks on the tract, which he opined would have been undercut and washed down river had the land been eroded away. Dr. Douglas Sherman testified on behalf of the Port and Kirby. At the time of trial, Dr. Sherman was a tenured professor and head of the Department of Geography at Texas A & M University, specializing in geomorphology and sedimentology. Dr. Sherman refused to adopt Gabrysch’s opinion of the amount of subsidence that had occurred in the area of Tract 1, and he also disagreed that subsidence alone could account for the changes in the shape of the site over time. In support of his opinion, he pointed out that the historic shape of the property, which the parties referred to as a “rabbit’s head,” could no longer be identified. He explained that “[i]f subsidence were the only force of change at this site, we would still see that rabbit’s head preserved. It would just be deeper.” Dr. Sherman also disagreed with Dr. Dupre’s opinion that subsidence alone caused the tract’s submergence. Further, Dr. Sherman testified that both subsidence and erosion were acting on the property, and he concluded that even if he were to exclude the effects of subsidence from his analysis of the submergence of the tract, most, if not all, of the property would still be submerged. According to Dr. Sherman, the area was transformed from a rabbit’s head to a submerged and featureless flat by a number of forces, including erosion, deposition, and human activities such as dredging, as well as subsidence. Viewing all the circumstances, Dr. Sherman testified that he could not quantify the degree to which the various causes impacted the site. The parties’ experts also disagreed concerning the reasons why the tract was not submerged to a depth consistent with the amount of subsidence in the region. In 1916, most of the original 27 Acre Tract was less than two feet in elevation above mean sea level. THI’s experts contended the tract had subsided approximately eight feet, so presumably the tract should have dropped to approximately six feet below sea level. However, evidence showed depths of one to one and one-half feet bplow sea level, the deepest measurement being 1.7 feet. Dr. Dupre testified that, next to subsidence, the most influential process at work on the tract was the deposit of sediment onto the land as water moved across it. He opined that more sediment was deposited than was lost to erosion, resulting in a net accretion (deposit of sediment) on Tract 1 of one and one-half feet to five feet in,the area. However, Dr. Sherman, the Port’s and Kirby’s expert, testified that four or more feet of accretion would be needed to make up the difference, and, while he agreed that there was “net deposition” at the site, he disputed the amount of deposition proposed by THI. (ii) Testimony supports a finding that one cannot assess the degree to which subsidence or erosion caused submergence. Based on our review of the record, we find the evidence is legally and factually sufficient to support the court’s finding that one could not ascertain the extent of erosion versus subsidence. THI would have us hold that the finding is insufficiently supported by evidence because no witness testified that Tract 1 had not subsided, and no witness testified, based on any scientific analysis, that Tract 1 had subsided less than approximately eight feet. Further, THI points out that even Dr. Sherman acknowledged that subsidence had occurred at the THI property, although he could not say how much. The Port’s surveyor, Foster, also acknowledged that the area has been affected by subsidence. However, though it may be undisputed that subsidence has occurred, that fact does not render the court’s finding insufficient. The finding acknowledges Tract 1 has subsided, but finds that the extent to which subsidence versus erosion contributed to the submergence cannot be determined. Even THI’s experts acknowledged that subsidence was not the only factor at work. Dr. Dupre stated that “by looking at the historical maps and aerial photos, its clear that you can document evidence of subsidence, of naturally occurring sediment deposition, naturally occurring bank erosion and the presence of human-in-place dredged materials. So all of these processes to — to one extent or another have been dominant.” Thus, the trial court’s finding of fact is supported by legally and factually sufficient evidence. We overrule this issue. 3. Other Appellate Case Law Allowing Private Ownership of Land Under Tide Waters and Rivers Either is of Dubious Value or Distinguishable. We now turn to THI’s third claimed exception to the general rule, that the state owns all land under tidewaters: appellate case law other than York. From our perspective, THI uses these cases to try to chip away at Luttes, Rudder, and Lorino, but, as we explain below, these cases are distinguishable and three of the four were handed down before the Luttes, Rudder, and Lorino trilogy. THI primarily relies on four cases other than York—Diversion Lake Club v. Heath, 126 Tex. 129, 86 S.W.2d 441 (1935), Fitzgerald v. Boyles, 66 S.W.2d 347 (Tex.Civ.App.-Galveston 1931, writ dism’d), Fisher v. Barber, 21 S.W.2d 569 (Tex.Civ.App.-Beaumont 1929, no writ), and Port Acres Sportsman’s Club v. Mann, 541 S.W.2d 847 (Tex.Civ.App.-Beaumont 1976, writ ref'd n.r.e.) — to argue that “submergence does not necessarily destroy the title of the owner.” York, 532 S.W.2d at 954. Heath involved land submerged by an artificial lake created after a dam was constructed. Heath, 86 S.W.2d at 442. Fitzgerald and Fisher involved land that either became submerged by tidal waters or became dry as a result of the creation of a channel. Fitzgerald, 66 S.W.2d at 348; Fisher, 21 S.W.2d at 569-70. In each of these cases, the character of the property was not changed as a result of the ordinary force of the water; there was no “transportation of the land beyond the owner’s boundary to effect that result.” See York, 532 S.W.2d at 954 (citing 5A Thompson on Real Property § 2562 (Grimes ed.1957)). In Mann, the trial court analogized the submergence of marsh land by the continued use of air boats through the marsh over a long period of time to the construction of the dam in Heath, and reasoned that the landowner did not lose title to submerged land although the landowner could not exclude others from fishing in the waters above the property. Mann, 541 S.W.2d at 849-50. We do not find these cases controlling here. First, they are distinguishable. None of the cases involved erosion or other forces that we have in this case. Second, to the extent they arguably cast any doubt on the bright line rules announced in Luttes, Rudder, and Lorino, we think it significant that three of the cases were written before Luttes, Rudder, and Lori-no, and the fourth, without mentioning Luttes, Rudder, and Lorino, relies on one of the earlier three to reach its result. To our reading, the trilogy of Luttes, Rudder, and Lorino recognized and explained the bright line rules that have long dictated land ownership. And, the trilogy of York, Kenedy Memorial Foundation, and Brai-nard reaffirmed the bright line rules. As the Court recently confirmed in Kenedy Memorial Foundation, Luttes is still the law: The Court’s interpretation of the civil law in Luttes is reasonable and workable, and it has provided a rule for determining boundaries for more than forty years. While we recognize that the subject is not beyond reconsideration, stare decisis is never stronger than in protecting land- titles, as to which there is great virtue in certainty. We would be very reluctant to discard a rule determining seashore boundaries that has served as long and satisfactorily as the rule in Luttes, thereby upsetting long-settled expectations, and we could not do so absent far more compelling evidence than can be offered here. Kenedy Mem’l Found., 90 S.W.3d at 281 (citation omitted). As was the case in Kenedy Memorial Foundation, “nothing in the record and argument now before us convinces us that we should reconsider the rule determined in Luttes.” See id. For these reasons, we choose not to follow whatever rule or exception is created by the four cases THI cites. Instead, we choose to follow the six Supreme Court cases that announce and reaffirm the Luttes/Rudder bright line rule. 4. The Trial Court’s Judgment Does Not Violate the Takings Clause Next, THI contends the trial court’s ruling constitutes a taking in violation of the Texas and United States Constitutions. See U.S. Const, amend. V; Tex. Const, art. I, § 17. Although we depend on the fact-finder to resolve disputed facts regarding the extent of governmental intrusion, the ultimate issue of whether the facts constitute a taking is a question of law. See City of Austin v. Travis County Landfill Co., 73 S.W.3d 234, 240-41 (Tex.2002). THI relies on York and Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992), to argue that submergence by subsidence is not an inherent hazard of owning Tract 1 and there is no exception to the takings clauses that would permit the State to take THI’s land without just compensation. However, as we have held, Tract 1 was not affected by subsidence alone, and this and the other factors discussed remove it from the rule applied in York. THI acknowledges that the possibilities of loss of land from processes such as erosion are limitations on the ownership rights of the State and private landowners along riparian or littoral boundaries. See Brainard, 12 S.W.3d at 18 (“A riparian owner thus ... loses title to portions of the land that are worn, washed away, or encroached upon by the water.”); York, 532 S.W.2d at 952 (“The general rule is that a riparian or littoral owner acquires or loses title to the land gradually or imperceptibly added or taken to or from his fast bank or shore.”). The trial court likewise recognized and applied these limitations, and its order does not effect an unlawful confiscation of THI’s property. Nothing in Lucas is inconsistent with this result. THI cites no Texas case involving riparian or littoral property in which it was held that property lost as a result of natural occurrences or even natural occurrences in conjunction with manmade causes violates the takings clause, and we are not aware of any. C. Any Pieces of Disputed Property Above the High Tide Line Also Are Owned by the Port. 1. THI’s Complaints. THI’s next issue pertains to several findings of fact and one conclusion of law. The trial court found that the entirety of Tract 1 became submerged at some time in the past and that the portions of the tract that now he above mean high water re-emerged as the result of the deposit of dredge spoils by Kirby and its predecessor, Western Towing, and concluded that the small portions of Tract 1 currently lying above the water line resulted from “self-help” by THI or its predecessors, so that THI does not own these small portions of land. The contested findings of fact are as follows: • “Over a period of decades, the 27-Acre Tract became submerged below the line of mean high tide. This submergence occurred gradually and imperceptibly and caused the historic meander boundary of the 27-Acre Tract to slowly contract and eventually to disappear.” • “The only existing meander lines between land and water that now exist at the location are the present meanders of Old River and the San Jacinto River around an Island, part of which is claimed by THI to lie within the 27 Acre Tract, and most of which is claimed by THI to lie within the northerly part of the Island, called ‘Tract 2’by THI.” • “Small portions of land above the line of mean high tide within the area claimed by THI as the 27 Acre Tract arose from submerged soil beneath the waters of Old River due to the deposit of dredged spoil, sunken barges, and accretion caused by the sunken barges and barge fleeting in and around The Big Empty. These small portions of land would not exist but for such activities, which were conducted by the lessees of the Carter heirs, namely Western Towing and Kirby.” 2. Some Evidence Shows that Tract 1 was Permanently Submerged in the Past. THI’s surveyor, Merten, identified three areas within his survey of Tract 1 that lie above mean high water. THI first contends there is no evidence that the portions of Tract 1 above mean high water ever were permanently submerged below mean high tide in the past. THI points to the testimony of its expert, Dr. Dupre, who testified that he saw no evidence that Tract 1 ever became completely submerged except perhaps during major storm events, and every aerial photograph he reviewed showed emergent land. In contrast, Dr. Sherman, the Port’s expert, testified that the submerged areas of the site had been submerged “at least since 1973,” and that at some point, the entire area became submerged. Dr. Sherman explained that he reviewed a number of sources to support his opinion, including aerial photography of the property, maps produced by the Bureau of Economic Geology showing the site completely inundated by storm surges from hurricanes Beulah and Carla, and another map from the Bureau depicting submerged lands of the Texas coast that showed, based on 1979 aerial photography, no island visible at all. THI argues that Dr. Sherman’s opinions are suspect because he admitted he did not know what the level of mean high tide was in photographs he reviewed, and he relied on a map which THI contends was based on a photograph taken when the water level was elevated. However, these arguments ignore the totality of Dr. Sherman’s testimony concerning the bases for his opinions. Concerning the map, Dr. Sherman explained that the high tide readings THI complains of were only recorded from a remote, single tide gauge in Trinity Bay, and there were no tide gauge readings directly applicable to Tract 1 when the photograph was taken. He also testified at length about the reasons why he interpreted the map to show that Tract 1 was completely submerged, including the absence of vegetation at the site, and he interpreted the map’s data to mean that the entire area was submerged. 3. Some Evidence Proves that Portions of Tract 1 were Above Mean High Tide Because of Self-Help. THI next challenges the evidence supporting the trial court’s findings that the small portions of land above mean high tide were the product of dredging and other self-help activities of the Carter Heirs’ lessees, Western and Kirby. Much of the testimony THI relies on is from witnesses who did not see dredging occur, did not engage in dredging, or had no knowledge of dredging. For example, a witness for the Port did not know of any dredging in the area, and a representative of the Carter Heirs testified they did not dredge or deposit spoils on or near the tract. Earl Thrift, Jr., who lived just north of Tract 1 from 1979 through 1983 and piloted tugboats in the area since 1983, testified he never observed dredging along the tract. THI acknowledges that Patrick Smith, a Western Towing employee from 1989 through 1995, testified that Western Towing did some dredging on the Carter Heirs’ property, but emphasizes that he testified that the dredge spoil was to be dumped either in hopper barges or on dry land — not in the waters of Old River. And, after Smith left Western, he testified that he spent the next seven years, until 2002, managing a business next door to Tract 1, and saw no dredging adjacent to Tract 1 by Kirby or anyone else. However, Smith admitted that he did not know what dredging activities may have occurred in the area before 1989. He also acknowledged that he did not actually watch the dredging operations on a daily basis and agreed that it was possible that dredge spoil could have been dumped elsewhere. He also acknowledged that the bottoms of the barges were largely rusted out, and dredge spoil could have leaked from them. In addition to the evidence that Western Towing conducted dredging operations at the site, Dr. Sherman testified that the reemergence of “land” at the site, which was completely submerged, was caused by the placement of barges and the dumping of dredge spoil. Dr. Sherman also testified that the barges anchored at the site in the 1980s changed the flow pattern of the water around them, causing the deposit of sediment in shoals forming behind them and preventing even greater erosion from occurring. Sherman testified that “if the barges weren’t here anywhere, I don’t think there would be any land above mean high water anywhere.” He also explained, based on an aerial photograph, that there was “clear visual evidence that material has been deposited by human means.... [A]nd in this circle that’s labeled as the thumb, there was also a dredge spoil disposal. And along the line between these circles called the islet and barge debris, there was also a line of material deposited.” Dr. Sherman concluded that, except for human activity, “this site would have been washed over routinely.” Dr. Dupre, THI’s expert, also testified that he identified evidence of dredge spoils in the three areas, including the area of the “thumb.” We hold that the evidence is both legally and factually sufficient to support the trial court’s fact findings. 4. The Court Correctly Concluded as a Matter Of Law that Portions of Tract 1 Were Above Mean High Tide because of Self-Help. Additionally, we agree with the trial court’s conclusion of law concerning self-help. A private party may not acquire title through self-help that raises land from submerged land lying under tidal waters. Brainard, 12 S.W.3d at 19 (“A widely recognized exception to the general rule is that accretion does not belong to the owner of the land adjoining the water when the owner causes the accretion.”); York, 532 S.W.2d at 952 (“A riparian or littoral owner may not acquire title to submerged land through self-help by filling and raising the land level.”). An island arising out of the bed of a navigable stream or the submerged lands of a tidewater bay becomes the property of the State. See Giles v. Basore, 154 Tex. 366, 278 S.W.2d 830, 835 (1955); Lakefront Trust, Inc. v. City of Port Arthur, 505 S.W.2d 606, 609 (Tex.App.-Beaumont 1974, writ ref'd n.r.e.). THI contends that if dredge spoils were placed elsewhere along Old River, but then were washed onto Tracts 1 or 2 by the water, that would not constitute self-help depriving THI of the upland acreage. For this proposition, THI cites Natland Corp. v. Baker’s Port, Inc., 865 S.W.2d 52 (Tex.App.-Corpus Christi 1993, writ denied). THI also contends Natland supports its claim that the actions of the Carter Heir’s lessees should not be attributed to THI. In t