Full opinion text
Mr. Justice Garwood delivered the opinion of the Court. The ultimate issue in this dispute between the State of Texas (defendant below, by consent, and respondent here) and the plaintiffs, Luttes et al. (our petitioners) is the title to some 3400 acres of mud flats or former sea bottom in Cameron County lying along, and alleged to be accretions to, the mainland or westerly edge of the long narrow lagoon known as Laguna Madre, about fifteen or twenty miles north of Port Isabel and the mouth of the Rio Grande River, and about fifteen miles south of Port Mansfield on the Laguna. The Laguna, of course, lies between the mainland on the west, and on the east, the long, narrow, sandy island called Padre, the eastwardly side of which latter is the shore of the Gulf of Mexico. The flats abut to the west upon a line of the upland or mainland characterized by a steep angle of elevation, although the altitude of the land along this line is hardly enough to justify the name “bluff line” which the parties call it. This line was the original easterly boundary of the now admittedly valid 1829 grant of land on the mainland from the Mexican State of Tamaulips to Manuel de la Garza Sosa, to whose rights the petitioners-plaintiff have succeeded. The grant, known as Potrero de Buena Vista, stipulated as its easterly or seaward boundary the westerly “shore” of the Laguna. In a trial to the court and upon elaborate fact findings by the trial judge, judgment went for the State and was affirmed by the Waco Court of Civil Appeals upon transfer. 289 S.W. 2d 357. The property claim of the State in the premises is, of course, that of successor (since 1836) to the Mexican nation or state, which latter, prior to the grant, admittedly owned the bottoms and shores of public waters such as the Laguna, as well as the upland granted. At the date of the grant, and, indeed, for well over half a century thereafter, the area in suit was always covered by the waters of the Laguna and thus admittedly did not pass to the grantee at the time of the grant nor thereafter, unless at some time about the first quarter of the present century. Accordingly, had this suit occurred some half century sooner than it did, the result would admittedly have favored the State. However, since some obscure date in the past, the area has been progressively rising in relation to the Laguna waters, with the result that it is now from 0.25 feet to 1 foot above mean sea level, in greater part above the line of “mean high tide” (as hereinafter explained) and covered by the waters, not as a regular daily, weekly or even monthly matter, but only at irregular intervals and in irregular amounts, although, from the rather meager records in this behalf, it cannot be said that the presence of sea water in substantial quantity is rare. The petitioners-plaintiff say that under the evidence and applicable principles of law, the land has become, since some forty years ago, a part of the upland as distinguished from sea bottom or seashore and, having become such by a genuine process of accretion to the earlier upland, the title to it has accordingly passed from the State to them as upland owners. On the other hand, the respondent-defendant State contends: first, that, although the area in dispute may have long since ceased to be mere sea bottom, it is neverthless, not upland or fast land, but seashore, as the latter term is defined by the Mexican (Spanish) law, which was admittedly in force at the date of the grant and thus controls thereafter the effect of the grant; that accordingly the area still belongs to the State, as admittedly it does if it is properly seashore. In the same connection, the State asserts that by the governing Mexican (Spanish) law, the landward or upper line of the “shore” is not the line of “mean high tide,” [or “mean high water;” see “Tide and Current Glossary,” Special Publication No. 228; Revised (1949) Ed., U. S. Dept, of Com., Coast & Geodetic Survey, p. 23,”] which applies only in respect of grants made by Texas after she adopted the common law in 1840, but a higher or more landward line. We are not certain as to the State’s view or just what this line is in terms of practical determination, but the contention seems to be that it is either the highest — most landward-line reached by the waters on any one occasion that can be proved or perhaps the average of single highest annual lines for such years as to which proof is available. Storm high waters are admittedly not to be taken into consideration. Alternatively, but no less importantly, the State contends: that, even conceding the area in question to be now upland or fast land, as distinguished from “shore,” the petitioners-plaintiff had the heavy burden (as they clearly did) which they have failed to discharge to the proper satisfaction of the trial court, of establishing factually, (a) that the status of the area as fast land is due to genuine accretion, that is, the gradual forces of nature herself as distinguished from human factors, and (b), that any such genuine accretion was accretion to their abutting upland rather than to certain islands or other admittedly state-owned areas to seaward of the original seaward boundary of the grant. Relevant to the foregoing contentions are the following facts, which, except as otherwise stated, may be taken as true: the 3400-acre disputed area is the bulk of a somewhat larger area of about 4000 acres, which is roughly in the form of a triangle, with its base (some three or more miles long north and south) being the original easterly boundary of the grant and, for well over a half century thereafter, the westerly line of the Laguna waters, while the other two sides (some two and a half or three miles each) run out respectively southeast and northeast from the base line to coverage or terminate respectively at the northerly and southerly ends of a fairly narrow island, or former island, over a half mile long, called “North Three Islands.” Along the northerly line of the triangle and something over two miles northwest of North Three -Islands lies a similar “island” called Yucca, although the latter runs more in an east-to-west direction than the former, and all of it lies within the triangle. About a half mile northwardly of Yucca lies another “island” called Heron, which is partly within the triangle, while northwardly of Heron and outside the triangle lie several others. More or less paralleling these later islands to the northwest and outside of the triangle is a peninsula-type area called Horse Island over two miles long, rather narrow and jutting out northeasterly from a point near the north end of the mentioned base line. All of the so-called islands above mentioned are elevated well above the flats and were admittedly true islands until at least sometime between 1920 and 1930, title to Heron, Yucca and North Three Islands being thus admittedly in the State. The petitioners-plaintiff concede also that of the total 4000-acre area of the triangle, some six hundred acres adjacent to the respective named islands represent accretions accruing to the islands, as distinguished from accruals to the mainland, and thus also belong to the State. Immediately outside the converging sides of the triangle, that is, to the northeast, east and southeast thereof, and beyond the mentioned islands, lie what are admittedly the open waters of the laguna, through which the Intracoastal Canal, a well-used ship channel about twelve feet deep and with a sometimes quite strong current, runs in a northwesterly-southeasterly line flanking the triangle to the eastward and passing it within less than a half mile at the closest point just eastwardly of the apex, which is North Three Islands. The Canal was constructed by dredging sometime between 1940 and 1949. As a result of the dredging, a quite large number of spoil banks were left projecting well above the waters on the westerly side of the canal, between it and the entire area in suit, which tend to obstruct the free passage of water from the Laguna toward that area. At the north of the area in suit, the southwesterly end of the Horse Island peninsula aforementioned was, as late as about 1915, separated from the mainland by a narrow channel running southwardly through or into the area in controversy and thus cutting off much of its northern portion from the then easterly boundary of the grant. North of Horse Island lies a quite large low area known as the National Wild Life Refuge, which is sometimes covered with the Laguna waters, and still further north lies the Harlingen Ship Channel (another more or less artificial canal) running in a straight line eastwardly from the mainland and from a stream called the Arroyo Colorado to join up with the Intercoastal Canal, more or less at right angles, and at a point several miles northwardly of the area in controversy. Formerly water from the region north of the latter area used to pass between the mainland and the southwesterly end of Horse Island; but at some time between 1924 and 1934 a bridge over the gap was replaced by an earthern fill or dam, and thereafter no water has passed through. The Harlingen Ship Channel was constructed at some time between 1940 and 1949, and the dredging of it, like that of the Intercoastal Canal, has left substantial spoil banks alongside it which have since to some degree interfered with the free movement of waters north and south. The surface of the area in question, including the disputed 3400 acres, has the characteristics of a basin, or, more accurately, a series of small basins running roughly from a point half a mile or so off the northerly portion of the base line of the triangle in a southeasterly direction across the middle of it. The lower levels of these basins are between 0.25 and 0.40 feet above mean sea level (slightly below “mean high tide”) and cover a substantial part of the acreage claimed by the petitioners-plaintiff; but the bulk of the latter and of the whole 4000-acre triangle lies above the 0.40 foot contour, rising generally toward the sides, along which, including the mainland side, it is largely between 0.80 feet and 1 foot above mean sea level, or about 0.50 above the level of “mean high tide.” Except on the “islands” themselves, as distinguished from the flats, there is no vegetation except algae, which does not have the appearance of normal vegetation and forms a sort of thin darkish mat over the surface, drying up and cracking in the frequent periods when the flats are free of water. (This algae is said by the principal witness for the petitioners-plaintiffs, a geologist named Dr. Lohse, to be a fresh water type of vegetation and by the botanist testifying for the State to be definitely a salt water type.) The soil of the flats is evidently of a darker and muddier appearance and character than the sand which comprises the flats and beaches of Padre Island several miles across the Laguna to the eastward. At least when the area is free of water, fairly heavy motor vehicles can be driven over most of it without difficulty. At the same time, and apart from the matter of the algae, it has many characteristics of land that is periodically covered by sea water, including a perennial dampness, presence of numerous salt crystals, sea shells, remnants of fish and so on, while water can evidently always be reached by digging a foot or two below the surface. Where the flats join the mainland and the islands there is an abrupt change in the angle of elevation and the character and appearance of the soil, including a well marked beginning line of sand, followed by grass and vegetation. This line, so far as it lies along the established mainland, is consistently referred to by the petitioners-plaintiffs themselves as a “bluff” or “bluff line,” and evidently is considered by them to have been the undoubted seaward limit of the Buena Vista grant at least up until the early part of the present century. Much of the mainland lying immediately westward of the flats appears to be itself a sort of large peninsula some three or more miles wide from east to west and several times that in length from north to south, being flanked on the west by a narrow stream or natural canal called “Cayo (or Callo) Atascoso,” which appears to be a prolongation of a former stream bed called Resaca de los Fresnos (literally translated, “Old Stream Bed of the Ash Trees”) and runs in a more or less northerly direction to merge with the Harlingen Ship Canal at a point about two miles westward of its juncture with the intracoastal canal. Several miles westward and northwestward of the Resaca de los Fresnos and Cayo Atascoso runs a stream or natural canal called “Arroyo Colorado” in the same general direction, merging with the Laguna six or seven miles north of the Harlingen Ship Channel. The two named streams or stream beds stem from points at or near the Rio Grande and considerably to the west and southwest of the area in suit, but are separated from the Rio Grande by flood control works and have been since about 1933. Very conspicuous in the testimony from the standpoint of the petitioners-plaintiff is another “resaca” known as Resaca de los Cuates (literally, “Old Stream Bed of the Twins”). It, too, originates at or near the Rio Grande some fifteen or twenty miles to the southwest of the area in controversy, meandering tortuously over the mainland in a northeasterly direction between the Resaca de los Fresnos on the north and northwest and the area in controversy on the south and southeast. At the present time, what the witness, Dr. Lohse, for the petitioners-plaintiff, described as the “mouth” of the resaca, lies at a point in the southerly half of the base or westerly (“bluff”) line of the area in suit. Like the other mentioned streams or old stream beds, the Resaca de los Cuates is separated from the Rio Grande by flood control works since 1933. While from time to time of recent years it evidently does contain water from rains, the proof in this behalf is rather vague, and undoubtedly the resaca has lacked the characteristics of a stream for many years past. According to the expert opinion of Dr. Lohse, this resaca was in ancient times a primary channel of the Rio Grande, of which main river the wide area from a point far north of the property in suit to a point near the present mouth of the Rio Grande, was a delta, being built up as such with silt gathered by the Rio Grande from its long course on the mainland, then eroded away by invading sea water and wind and then built up again. While this geological story of the delta goes back several thousand years, and it would seem to be true that the mainland behind the flats in suit, as well as the flats themselves, are thus primarily formed of deposits originating with the mainland rather than with the bottom of the sea, the petitioners-plaintiff themselves yet admit, as before stated, that at the time of the Buena Vista grant and into the early part of the present century, the seaward limit of the Buena Vista grant was in fact the present westerly (bluff) line of the area in suit, while as late as between 1920 and 1930, the Laguna waters still regularly separated the islands from the mainland. Indeed, certain federal government maps and charts in evidence show substantially all the area in suit as water in 1923 and even later. Moreover, whatever the importance of the Resaca de los Cuates in ancient times, its relevance to the modern times, in which the accretion of the disputed area to the mainland is alleged to have occurred, is somewhat obscure. As indicated, the proof as to the amount and permanency or impermanency of water in the resaca and its discharge onto the area in question is meager, and some of the exhibits seem to indicate that, at least as a general rule, it was dry about the time when most of the accretion is said by the petitioners-plaintiff to have accrued. The proof as to what part of the alleged accretions evolved from the mainland (bluff line) out, as distinguished from that evolving from the islands or other offshore points, consisted largely of .the expert opinion of Dr. Lohse above mentioned based on cores of a few feet length taken from the area in suit and said by him to represent, so far as presently available, the geological history of the area from a period several thousand years back, although an extraordinarily large part of the length of each such core was said to correspond to deposits made during the last thirty or forty years. The cores are not readily intelligible to the lay observer. In alleged accordance with these deductions, Dr. Lohse fixed several straight lines to the east, southeast and south of Yucca Island and one straight northwest-southeast line across the narrower portion of the flats about a half mile eastward of North Three Islands, concluding the area between such lines and the respective “islands” to represent that portion of the total alleged accretions (the entire triangle in question) which constitutes accretions accruing to the islands. It is to be noted that all of these lines lie considerably to the eastward or seaward side of the heretofore mentioned line of basin bottoms of the flats and are thus on a considerably higher level than the low central areas, which latter, and much of the higher area on the island side thereof, Dr. Lohse allocated to accretions built from the mainland out. The proof tending to show the accretions to be the very gradual and purely natural process required in order to transfer title was also largely a matter of Dr. Lohse’s expert deductions from the cores and his own reconstruction of ancient and modern geological events. Dr. Lohse is an employee of one of the petitioners-plaintiff since some years back and made his more recent and elaborate studies of the area in question for the purpose of later being able to testify for the respondents in this suit. Going back to the matter of sea water levels, there has never been any permanent measuring device (“tide gauge”) at the particular area, the two nearest ones being each some 15 miles away in opposite directions, to wit, the tide gauge of the United States government operated at Port Isabel since April, 1954 and a similar apparatus at Port Mansfield operated by the Humble Oil & Refining Company since June, 1947. These gauges reflect the changes in the water levels at all times, regardless of the cause of the change, and in such manner that the levels so determined with reference to mean sea level can be, as they were, accurately correlated with the corresponding levels of the flats in controversy. Properly speaking the term “tide” means the regular and predictable perpendicular daily rise (or rises) and fall (or falls) of the waters as a result of astronomical forces, to wit, the gravitational pull of the sun and moon (mostly the latter) upon the earth. See Tide and Current Glossary, supra. The levels reached by tides vary from day to day and as between all other fixed periods' of time, however long, and also as between different geographical areas. But water levels are also influenced by weather conditions, such as wind, temperature and atmospheric pressures, as well as by other factors not connected with astronomical forces and, of course, by combinations of all or part of the former. Thus water level changes, whether produced by astronomical or nonastronomical forces or by combination between the former and the latter are reflected by the tide gauges, which record the different levels attained, although they do not, as to any given level or reading, purport to record the cause as astronomical, nonastronomical or both. As found by the trial court, and admitted by the parties to the suit, there is in the Laguna Madre relatively little tide in the true sense, although there are undoubtedly substantial and frequent, but irregular, variations in water levels during each day or longer period due to the influence of nonastronomical forces and conditions, sometimes in combination with astronomical tide conditions in the Gulf of Mexico. One of the factors causing, or substantially contributing to, higher water levels in the general area in suit is the presence of northerly winds in the period from early Fall to Spring, although, on the other hand, there have been recent instances of sea water overrunning the flats in midsummer. There is also present, and due in at least some part to astronomical forces, a progressive, slow rise over the years of the general (“mean”) sea level at an average rate of about 0.02 feet per year. Thus, while on any one day we have the single variation between a highest level to a lowest, we have also the variation from what was the highest (or lowest) on that day and what is the highest (or lowest) on the next day. Similarly if we take the highest (or lowest) single instance that occurred in an entire year, it will ordinarily be different from a corresponding instance of the next or preceding year. And, of course, when we speak in general terms of the “highest water” for a given period longer than two days, we may mean that highest level of a particular day which is also higher than that reached on any other day of the period, or we may mean, perhaps, the sum of all the daily highs of the period (e. g., 365 in number for a year) divided by the number of days of the period (e. g. 365 in number for a year). If we mean the latter, such an average figure will necessarily be lower than the one highest annual level above mentioned. Moreover, the average figure, while it will vary from a similar average figure for a comparable period before or after that in question, will vary less than the single high of one such period varies from another, averages being always lower than a single highest as well as higher than a single lowest. In the instant case, the trial court, either as a primary or secondary basis of his conclusion that the area in dispute was still “shore,” under the Mexican (Spanish) law, took the one highest reading of the Humble gauge at Port Mansfield for each of the four years of gauge operation, added these four individual footage readings and divided the total by four, the result being a footage of 2.24 feet above mean sea level, or more than high enough to inundate the area in dispute. A similar result (2.64 feet) followed his similar calculation based on the ten-year Port Isabel gauge. [On account of the reference to the supposedly higher tides or waters of winter occurring in some statements as to the Mexican (Spanish) law of the seashore, it is interesting to note at this point that similar readings, and similar calculations therefrom by the trial judge, but using only the one highest reading during the winter of each year, produced substantially lower figures (1.56 feet, Humble, and 2.03 feet, Port Isabel) than those first above mentioned, although still high enough to inundate the flats]. On the other hand, if the court had based his averages, not on the single highest reading of each year, i.e., one reading per year, but on day by day highest readings, i. e., 365 of them for one year, 1460 for four years, 3650 for ten years — adding them all together and dividing by the corresponding number of days, the resultant levels would have been much lower than those above mentioned upon which he actually relied and would have been, by and large, lower than the level of the flats. This is demonstrated by the court’s own and uncontested findings to the effect that “mean high tide” or “mean high water” at the Humble gauge was only 0.416 feet above mean sea level and at the Port Isabel gauge only 0.56 feet, these levels being somewhat lower than the levels prevailing over most of the disputed area, especially at the perimeter thereof. The terms last mentioned, as employed by the court and as universally understood, mean an average of all the daily highest readings over a long period. The proper period is one of approximately 19 years, since within such a period the astronomic forces affecting the water level go through a complete cycle. In localities in which tide gauge readings for so long a period are not available the accepted practice for determining “mean high tide” or “mean high water” is to take the daily local tide gauge readings for such periods as they are available, provided it is not less than one year, and correct them by comparison with the nearest gauge which affords a record for 19 years, the corrected result being a substantially accurate approximation of true mean high tide at the locality in question over the 19-year cycle. See Tidal Datum Planes, TJ.S. Dept, of Com., Coast and Geod. Survey, Special Publication No. 135, Rev. Ed. (1951) p. 86 et seq.; Borax Consolidated v. City of Los Angeles, 296 U.S. 10. Thus the difference between this “mean high tide,” found by the court to be but about half a foot above mean sea level, and the much higher figure of about two and a half feet upon which he relied and which he found to represent the “highest” water levels (excluding storm conditions) is but a difference between the number of different highest water readings taken and averaged out in each instance. This difference of method, although both methods involve to lesser or greater degree an average or mean of highest levels, was undoubtedly intended by the court to reflect his view of the difference between the Anglo-American law concept of “shore” (as the area below the line of “mean high tide,” “mean high water” or “ordinary high tide”) and the alleged Mexican (Spanish) law concept (as, generally speaking, the area below the “highest” reach of the waters, limited only to the extent that such level be not due to storm type conditions) . As above indicated, and as more fully reflected in the opinion of the Court of Civil Appeals (289 S.W. 2d 357 et seq.), the trial court made elaborate findings of fact, including amendments following his review of his original findings at the behest of the petitioners-plaintiff. These findings and his corresponding conclusions of law largely favored the contentions of the respondent-defendant State as heretofore outlined. As to whether the area in dispute is or is not “shore,” as distinguished from upland or fast land, there was evidence introduced by both sides, including some expert testimony. However, the petitioners-plaintiff are, in our opinion, correct in saying that this particular question, as now presented to us, is really a question or questions of law, to wit: (a) Was it error for the courts below to apply the Mexican (Spanish) law, as distinguished from the common law, and (b) if not, was the Mexican (Spanish) law yet correctly interpreted and applied with regard to the instant situation? If the views of the courts below on (a) and (b) are correct, the judgment below must be affirmed, regardless of the questions concerning accretion, because such fact findings as are relevant to the “shore” phase of the case are admittedly not without support in the evidence. Such findings, of course, include some that, on this aspect of the case, are conceivably the basis of ultimate rulings in favor of the petitioners-plaintiff, such as the mentioned findings that “mean high tide (or water) ” as determined by the two mentioned tide gauges is lower than the level of the bulk of the area in controversy. The other and independent grounds of the decision below, in so far as questioned here, are factual in nature, the only attacks on them by the petitioners-plaintiff being that they are entirely without support in the evidence, and, in any event, against the great weight and preponderance of the evidence, the Court of Civil Appeals having failed to pass on the matter of weight and preponderance in disregard of the rule restated in In re King’s Estate, 150 Texas 662, 244 S.W. 2d 660. These findings are to the effect that the evidence for the petitioners-plaintiff fails to sustain their burden of satisfying the court that (a) assuming the status as fast land of all or part of the metes and bounds area claimed by them to have been the result of genuine accretions, they were accretions to the land granted as distinguished from accretions to the above-named islands or other state owned lands and that (b) the alleged accretions were genuine or “legal” accretions in the sense of a purely natural and imperceptible increase or elevation of the land, as distinguished from deposits partly due to human activity such as closing the channel or depression between the mainland and the southwesterly end of Horse Island and the creation of the spoil banks along the Intracoastal Canal and Harlingen Ship Channel, which operated to shut in the area in question and impede the access and movement of the Laguna waters with regard thereto. We granted the writ of error largely in the hope of being able to eliminate the confusion that appears to exist at the Bar and otherwise as to what, in details of practical application to cases like the present, is the correct definition of the shore — the matter being obviously one of considerable public importance. We shall accordingly discuss that question first. We harbor no doubt that the Mexican (Spanish) law, whatever it may be, in effect at the date of the grant, is what must furnish the applicable rule, and that such is the effect of every decision, observation or assumption that has ever been made by this Court on the subject, including those of as recent date as Rudder v. Ponder, 156 Texas 185, 293 S.W. 2d 736, Giles v. Basore, 154 Texas, 366, 278 S.W. 2d 830, and State v. Balli, 144 Texas 195, 190 S.W. 2d 71. We consider Humble Oil & Refining Co. v. Sun Oil Co. (5 Cir.) 190 Fed. 2d 191, 191 Fed. 2d 705, cert, den., 342 U.S. 920, as being to the same effect. Any confusion that may exist by reason of a previously somewhat unstudied use of the broad term “civil” law in texts and decisions, as distinguished from the applicable Mexican (Spanish) law, is confusion only as to what effect is to be given to the Roman law of Justinian’s time in interpreting the vague terms of the Mexican (Spanish) law of several centuries later for application to the very practical question of fixing a line on the ground today. Without prejudice to our final view as to what the applicable Mexican (Spanish) law actually provides, and how it should be here applied, we are satisfied that State v. Balli, supra, is not, and does not purport to be, controlling. What State v. Balli decided in this general connection was simply that under the evidence presented in the particular case (incidentally, quite meager evidence on the point) a particular line actually drawn on the ground by the State’s own surveyor, Mr. Stewart Boyles, which he testified to be the line of “mean high tide,” and which the State itself as plaintiff contended for in effect by claiming Padre Island under the Boyles survey of the island, with his line of “mean high tide” as the outer boundary thereof, was not necessarily different on the ground from what would be the then alleged Mexican (Spanish) law line of “highest winter tide.” Actually no survey was ever made of any such latter line, and, as stated, the State had sued for title to Padre Island as bounded by the “mean high tide” line drawn by Mr. Boyles on the ground. The trial court in the Balli case rendered judgment for the defendants, in effect awarding them the survey for which the State had sued. The State then made the point that of the many thousands of acres involved in the suit, it had been erroneously deprived of at least a relatively small fraction (some 5000 acres) by the action of the court in accepting Mr. Boyles’ line rather than the allegedly higher line of the Mexican (Spanish) law. Both the Court of Civil Appeals and this Supreme Court held in so many words that the trial court had impliedly found as a fact that there was no substantial difference between Mr. Broyles’ line on the ground and the theoretical line said to be that of the Mexican (Spanish) law, and that the evidence in the case was such as to support that finding. See the very clear language of this Court in 144 Texas at page 252, 190 S.W. 2d at page 101, and that of the Court of Civil Appeals in 173 S.W. 2d at pages 543-544. This ruling was in direct response to a corresponding contention of the successful defendants in the case; and the nature of the ruling was not changed by the fact of the State contending in the appellate courts that the trial court had abandoned the applicable Mexican (Spanish) rule or by the fact of the defendants making, as they did, an alternative appellate argument that the rules of the Mexican (Spanish) law and of the Anglo-American law were, as a matter of legal principles, actually the same. While the strong inference from the Supreme Court opinion is that the Mexican (Spanish) law governed, actually both that Court and the Court of Civil Appeals bypassed the narrower question now presented of whether the two legal rules were essentially the same, whatever their formal terms. Had it been otherwise, both courts would necessarily have discussed the matter in far greater detail than they did both on principle and in the light of the language of various well-known Texas decisions of earlier date commenting on that very subject. All this is not to deny, however, that since State v. Balli, and as a result thereof, a particular line, actually marked on the Laguna side of Padre Island, and which may actually be the line of mean high tide, is now the boundary of a large portion of the total shores of the Laguna, that is, of the portion of such shores that was involved in the Balli case. Accordingly, should a line different from that of mean high tide be the result of the instant case, conceivably, although not certainly, different kinds of boundaries will, as a matter of fact, prevail on the different sides of the Laguna. There is, indeed, much to be said on principle for the thesis of substantial identity between the two rules in question in the light of modern conditions. The Mexican (Spanish) law provision, infra, with which we are mostly concerned, being written in the middle ages under circumstances vastly and variedly different from those under which we must now give it an exact application, a court can have no vast confidence in its own deductions, however “educated,” as to the intent of the ancient Spanish law writers derivable from their few and quite general words, somewhat different in form from present day Spanish and conceivably different in meaning to their authors from what their formal modern counterpart would mean even to modern Spanish jurists. Nor can we rely with great confidence upon translations and interpretations made centuries later — often by non-Spaniards, whose expertness in the language and subject matter must largely be assumed from the fact that they presumed to write a tract or book about it or, being judges, had to write a judicial decision based on such relatively meagre knowledge as is, and has been, available. The inadequacy of all language, however wise and learned the source, is notorious when it comes to be applied to particular facts and conditions of a later and quite different age, which doubtless were not clearly contemplated by the authors. The basic definition, of course, is that of the celebrated body of Spanish law known as Las Siete Partidas, which was evidently written in the 13th century and promulgated some three centuries later, and of which the critical portion of Partida 3, Title 28, Law 4 (from the so-called Lopez edition published at that time under governmental auspices at Salamanca) reads as follows: “* * * e todo aquel lugar es llamado ribera de la mar quanto se cubre el agua della, quanto mas crece en toda el año, quier en tiempo del invierno o del verano.” A rather literal translation of this ancient Spanish and 16th century printing thereof, according to our own modern ideas of what it says, is: “* * * and all that place is called shore of the sea insomuch as it is covered by the water of the latter, however most it grows in all the year, be it in time of winter or of summer.” The word “crece” (third person, singular, of the present tense of the intransitive verb “crecer,” meaning, no doubt, to grow, increase, augment itself, expanded or swell) does not seem of itself necessarily to imply either astronomical tide on the one hand or waves or “swells” on the other, although it is not necessarily inconsistent with either. At least in modern usage, and as far back as the first half of the eighteenth century, the related noun “creciente” sometimes means “rise of the water of the sea by effect of the tide (marea).” On the other hand, another related noun, “crecida,” means a freshet, or sudden rise of a stream. See Diccionario de la Lengua Castellana by the Royal Spanish Academy (edition published during first half of the 18th century; also Vol. 1, p. 404, Diccionario Hispánico Universal, S. A. Horta de Impresiones y Ediciones, Barcelona; Velasquez, a New Pronouncing Dictionary of the Spanish and English Languages (1947). Various legal scholars of greater, or less note have from time to time published translations of the provisions in question made by themselves or copied from others. That of Samuel Parsons Scott, in Las Siete Partidas, Commerce Clearing House, Inc. 1931, which was quoted in State v. Balli, supra, (190 S.W. 2d 71, 100) reads: “* * * and all that ground is designated the shore of the sea which is covered with the water of the latter at high tide during the whole year, whether in winter or in summer.” This translation is obviously interpretive. The Spanish word for tide, as given in the above cited dictionaries, is “marea,” which does not occur in the original. The original word, “en” (in) is translated as “during,” although the exact Spanish word for “during” is “durante.” The early official State of Louisiana translation made by Lislet and Carleton reads: “And by the seashore is understood, all that space of ground covered by the waters of the sea, in their highest annual swells, whether in winter or summer.” This is likewise interpretive. The modern Spanish word for the English noun “swells” is “olas,” or perhaps “ondas,” and no such word occurs in the original. As stated, the original word “crece” (grows) does not necessarily imply wave action large or small, although it does not necessarily mean the contrary. The translation in 1 White’s Recoplicaion of the Institutes of Aso and de Manuel (1839), also quoted in State v. Balli (190 S.W. 2d 71,100) is: “By shore of the sea we understand whatever part of it is covered by water, whether in winter or summer.” This is likewise interpretive, disregarding somewhat the suggestion of movement of the waters contained in the original phrase “quanto mas crece en todo el año” (however most it grows in all the year), although refraining from injecting either of the nouns “swells” or “tide.” In State v. Balli we discussed briefly the definition of the shore, if only in connection with the State’s contention there that all accretions to tidal boundaries of an 1829 Mexican grant belong to the State, notwithstanding an admittedly contrary rule as to nontidal rivers and lakes. In that discussion, we quoted, without comment, the White and Scott translations, supra, and thereafter gave what appears to be our own translation, as follows: “* * * all that ground is designated the shore of the sea which is covered with water of the latter during the whole year, whether in winter or in summer.” (190 S.W. 2d at p. 100, 2nd col.). This is substantially the same as the White version, although the latter omits the specific reference, “during the whole year” (with its possible connotation that the shore has to be covered with water each day of the whole year). The petitioners-plaintiff submit an interpretive translation recently made at their behest by J. L. Battista, Associated Professor of Romance Languages, The Rice Institute, reading as follows: “By seashore is meant all that space which is covered by the water of the sea at its highest tide during the entire year, be it in winter or in summer.” Rather obviously the original language does not define the upper line of the shore as the highest water levels of winter, whatever may have been stated to the contrary in some of our earlier opinions and in administrative pronouncements. Unless the sense has changed drastically with the centuries, it is inconsistent with such a construction in that it lays no more emphasis on winter than on summer. Now whether the language confines the shore to that area regularly covered and uncovered by “tide” in the astronomical sense or permits it to be that highest “swell,” wave or rise that may occur at this or that one particular hour or minute from whatever force other than storm conditions, the phrase, “in all the year” (en todo el año), undoubtedly leaves a question as to what year is meant. Does it mean the last calendar year expiring before the litigation or other effort to fix the boundary on the ground, or some earlier year with a higher water level, or the kind of average of single highest annual levels over several years, on which the trial court alternatively relied in the instant case, or does it mean that where the daily highest levels over a period of years are of record and in evidence, these hundreds or thousands of highest levels should be averaged, and the average taken to be “however most it grows in all the year?" Pretermitting for the moment the matter of interpretive authority, we think the language of the partidas of itself permits, and common sense suggests, a line based on a long term average of daily highest water levels, rather than a line based on some theory of occasional or sporadic highest waters. Indeed, such appears to us to be consistent with one of the primary arguments of the State itself to the effect that the true line should be one evidenced by more or less permanent markings on the ground of the kind ordinarily associated with the upper line of a shore. Whatever the aspect of the ground in the instant case, ordinarily a “shore line” is one characteristic of regular and frequent coverage by the sea, which in turn is much more closely related to an average of daily highest waters than to one, or an average of merely a few, highest annual readings. While obviously the word, “average,” or its equivalent, “mean,” does not occur, both are suggested by the language as a whole, as the learned trial judge evidently recognized. No particular year being indicated as that from which the so-called highest tide or water “in all the year” is to be taken, the inference is that a condition regularly prevailing over a number of years is what was intended, and this in turn suggests a mean taken over such a period. If, for example, the single highest water for each of the five years immediately prior to the litigation were in no instance higher than one foot above mean sea level, but were somehow shown to be three feet in one particular year long prior to the latest five years, it would hardly appear within the reasonable intendment of the law that we should forget the later years and fix the line at three feet according to the one more remote year. Conversely, if the single highest reading for the year just preceding the trial were two feet, while those for each of nine or more years preceding the latest were not over one foot, it would seem unreasonable to require fixing the line at the two-foot level of the latest year, disregarding the lower “highest” levels of all the preceding years. And if we are to use some kind of “mean,” as evidently we should, what is there in principle, or in the words of the basic law itself, to require such an average to be that of single highest annual readings for each of the several years in question, rather than one of daily highest readings for all of the days of such years? Both are averages of highest water readings. The only difference lies in the number of highest readings averaged. The reference in the law to winter and summer does not necessarily require that some single highest water of which proof may be available shall determine the line. It appears simply to take care of a situation in which, by reason of a pronounced difference between seasonal levels, the area in question may over the years be regularly inundated, for example, each summer but only in summer. It has no significance in a situation such as the present in which such inundation as occurs is evidently irregular and with little regard for either summer or winter. It accordingly does not exclude the possibility of basing a line on an average of daily highest levels over a continuous and long period. Obviously the greater the number of highest water readings averaged, the nearer we come to a figure, or level, which, applied to the ground as a line, will reflect a more regular and permanent shore characteristic than any other. The line will be the one at which the sea most regularly “stops with the shore,” and, generally speaking, it will be the line at which the physical features commonly associated with the upper line of the shore most conspicuously appear. Thus it will normally be a more visible line, however it may be under the evidence of the instant case. Of course, if the “highest” levels were substantially the same on every day, then there would be no such thing as a “single highest water,” and thus “mean high water” would necessarily be the test under the Mexican (Spanish) law even as it is under the Anglo-American law. Actually, so far as real “tide” goes, that is the situation in the Laguna, since, as the trial court found, any astronomically inspired changes in levels are insignificant, and the variations are due to meteorological forces such as wind and air density. But these latter variations are quite substantial, both as between different periods of time and between different places with differing exposures to meteorological forces. The finding that the average of single annual highest water over periods of several years was several times as high as “mean high tide (water) ” shows that the meteorologically inspired levels on which the former was based were quite extreme or exceptional with reference to the highest waters occurring from day to day. Thus should we base the line, as did the court, on these few exceptional levels, we are likely to have a line of shore which is not shore in the commonly accepted sense of being- regularly covered and uncovered by water. It is difficult to believe that the ancient writers of the partidas had in mind a shore which was different from the commonly accepted idea thereof. One thinks of shore more in terms of the water’s edge than in terms of land which is only occasionally and irregularly inundated. There are, moreover, sundry practical considerations presented in applying the ancient law to modern Texas which the ancient writers, had they thought of them, would probably have considered relevant to a sound interpretation of their own words. As before indicated, we believe it essential, as the learned trial judge seemed to suspect it might be, to proceed on the basis of averages over a period of years, whether the basis of the average be only a single highest reading for each of the years concerned or the vastly larger number of daily highest readings. This, in turn, necessitates the use of tide gauges in practically every case. Any proof of even the single highest annual levels from sources other than tide gauges will ordinarily be as unreliable as it will be difficult, and proof as to day by day highest levels would be impossible. At the same time, we know that the number of tide gauges along the hundreds of miles of Texas coast, much of which is remote from population centers, is relatively insignificant, while the number which has been operated as much as a year is smaller still. Obviously in a locality where there is no tide gauge that has been in existence for a good many years, there will be little reliable evidence of the various single highest annual levels upon which to base an average for all those years. So, in such instances, we would either have to rely upon the quite scarce and unreliable evidence from sources other than tide gauges or take the equally unreliable alternative of abandoning the system of averages altogether in favor of accepting proof of one or two instances of highest levels, which some eyewitness might claim to remember, as proof of what is the shore. Both alternatives seem undesirable. A third and much more reliable alternative, however, is that of following the system of “mean high tide (water),” which in effect is but the average of highest water of each day rather than each year. If that rule is adopted, we can have, by installing a tide gauge for as little as one year near the area in question, the benefit of 365 highest readings upon which to base an average, that it, upon which to determine “mean high tide (water) ” at that point for that one year. This mean level will obviously vary less from a corresponding level for earlier (or later) years than would a single highest annual level for one year vary from the respective highest annual levels of other years. Indeed, as before stated, upon the further and quite simple step of correction against the nearest tide gauge which has been in operation for the full 19-year tidal cycle, the one year “mean high tide (water) ” figure of the local gauge will reflect with reasonably close exactness the “mean high tide (water) ” for the whole 19-year cycle. In other words, so far as most of the Texas coast is concerned, the only reliable way in which to obtain any sort of average of highest water levels is by use of the standard of “mean high tide (water) While this involves a delay of a year, it appears more practical than waiting several years in order to get an average of single highest annual waters over the longer period. In either event, the local tide gauge is necessary becáuse, as stated, water levels vary considerably from place to place in the Laguna, particularly on account of varying exposures to meteorological forces, whereas, by adopting the “mean high tide (water) ” standard, the period of tide gauge operation may be reduced to one year. Now turning to the matter of authority, although there may be in the legal profession of this state a fairly widespread impression to the contrary, we do not consider the foregoing interpretation or application of the partidas to encounter any insuperable obstacle in existing interpretive authority, whatever the source. Actually much of the argument for the State rests on the Roman law as compiled, and no doubt rewritten, under the general title of Corpus Juris Civilis (“Body of the Civil Law”) by order of Emperor Justinian I, some fifteen hundred years before the present time and nearly a thousand years before publication of the partidas. Thus the law of the Romans, or at least Justinian’s edition of it, is self-styled the “civil law” and is, moreover, today properly and actually referred to by that term, although the latter has also come to be often employed in a broader and somewhat loose sense, so as to include, besides the ancient Roman law, the laws of those nations of ancient Roman background, such as Italy, France, Spain and the so-called Latin-American offspring of the latter, all of which exist considerably more in code form than in court decisions. While as a matter of form, and possibly also of substance, there is, generally speaking, less similarity between the Corpus Juris Civilis and our Anglo-American decisional law (and statutes) than there is between the Corpus Juris Civilis and the codes of the other so-called “civil law” nations, the similarity in the latter instance is far from an identity, as counsel for the State properly concedes, and as State v. Grubstake Investment Association 117 Texas 53, 60, 297 S.W. 202, 204, expressly declares. And with particular reference to the sea shore, obviously the fact that the laws of two civilized nations separated by a thousand years both undertake to define such a universally familiar and important object as the shore does not indicate that the later law was intended by its authors to have the same meaning as the earlier, even were the terms respectively employed more similar than they actually are. Indeed, the contrary is suggested, when we consider that the Spanish law writers probably had access to the Roman law when they wrote their own in different terms. To say, as we did in State v. Balli, that certain provisions of the partidas, to wit, those dealing with alluvion and accretion, were “taken from” or “have their origin from” the Roman law, does not mean that even those particular provisions were intended as a mere paraphrase. The Roman law itself is sometwhat confusing. Book II, Title I, Sec. Ill of the Institutes (“quatenus hybernus fluctus maxi-mus excurrit”) seems to fix the shore lines as that of the highest winter wave (assuming fluctus to mean “wave,” which frequently, but not necessarily, it appears to do), whereas the Pandects or Digest, also a part of Corpus Juris Civilis, omits the word “winter” altogether and, while preserving fluctus, uses a new verb,exaestuat, (“boils up,” instead of “rushes forth” as in excurrit). Exaestuat evidently has connotations of tide, for which the Latin noun is given as aestus. Both the latter and the verb exaestuare have a primary significance of heat or effect of heat, hence “a boiling up” or “to boil up.” See the two words as translated back and forth in the Latin-English & English-Latin Dictionary of Dr. John T. White (Rev. Ed., 1926) and Cassell’s Latin-English and English-Latin Dictionary (Revised) published by Funk & Wagnalls. So far as the word “winter” goes, the State appears to argue in its answer to the application for writ of error that the partidas definition is based on the Pandects, which omit “winter,” rather than the Institutes, which include it, or, in other words, that the partidas definition does not set the shore line as that of highest winter water, whatever else it may do. For our part, as indicated earlier in this opinion, we think the words of the partidas themselves clearly settle this particular point, without reference to whether- their authors intended to paraphrase the Institutes, the Pandects or either. But even were it beyond doubt, which it is not, that the partidas definition was intended as a mere paraphrase of the Roman, and that the Roman in turn refers to the “boiling-up” of a “wave” rather than to the rise of the “tide,” we would still be confronted with the question heretofore discussed at some length, to wit — is this one “highest wave” to be that of the year just preceding actual fixing of the line, or some other year or years or an average, and if an average, what kind of average? Once we elect for an average, as the practicalities seem to require, and the texts of neither the Roman Civil Law nor the partidas appear to forbid, the sounder course is to take the average of daily tide gauge readings of daily highest water, be it tide or a wind-driven wave. As to commentaries on the partidas definition, those of Gregorio Lopez, which appear as Latin (or medieval Latin) footnotes to the text in a Spanish official publication of the latter made between the end of the fifteenth and middle of the sixteenth centuries, are admittedly authoritative. Evidently Lopez was a jurist in the confidence of the then Spanish royal family, a member of the Council of the Indies and, by royal commission, the principal editor of the edition in question. The relevant comment is that appertaining to the phrase cuanto mas crece, the original and an English translation supplied by the State being as follows: “Non intelligas de eo, quod ultra cooperit in plenilunio Martii, vel in autumno in aequinoctio; nam in mari occidentali cooperit prata, et ripas, secundum Joann. Fab. nam illud quod tunc cooperit, non est commune; sed intelliges, quantenus maxi-mus ejus fluctus aestuat in hyeme perenniter, vel aestate, quando fortiter vento concutitur.” “* * * it must not be understood as to applying to the whole large extension which is covered during the full moon of March or at the Fall Equinox, as happens in the lands adjacent to the western sea, which according to Joann. Fab., inundates shores and fields; therefore, not all the land inundated by the extraordinary flows, must be considered as res communes, but only that part of the land covered by the highest swells in perennial agitation, during the winter as well as during the strong but customary summer storms.” The Latin, written by a medieval Spaniard centuries after the fall of Rome, may vzell be interpreted with diffidence even by accomplished scholars of classical Latin; but, subject to this reservation, we presume to agree with the petitioners-plaintiif that the above translation is somewhat free. The last four Latin word would seem more accurately translated as “when strongly by the wind it is buffeted” instead of “during the strong but customary summer storms.” Moreover, maximus * * * fluctus aestuat does not seem necessarily to refer to waves or “swells.” Fluctus is used in the singular number and when accompanied by the verb aestuat (corresponding to the noun aestus, which seems often used as meaning “tide”) may, as heretofore observed, have the connotation of a mere rise in water levels. In any event, especially when we consider the reference to the regular tidal forces such as the equinoxes and the moon and the adverb perenniter (“perennially, perpetually, continuously”) the sense of the comment seems more against the position of the State than for it. According to this Lopez explanation of the partidas, extreme and occasional high water levels, even when attributable to astronomic forces, are rather plainly negatived as the test of the upper shore line. On the contrary, the shore is indicated to be that part of the land “perennially” covered and uncovered by the restless sea. The State not unnaturally relies also upon various opinions of this Court and other courts of this state, principally, and beginning with, City of Galveston v. Menard, 23 Texas 349, from which the State and no doubt some portion of the Bar, deduce that the rule of “mean high tide” (average of the daily highest tides over a long period) which is the rule of the Anglo-American law, is not the rule of the Mexican (Spanish) law prevailing at the time we are considering; but that the latter rule declares for a higher line. It cannot, of course, be denied that language in these opinions, especially in the Menard case, supports the State’s position. But candor also requires the admission that this language is confusing as to exactly what the Mexican (Spanish) law rule is as applied to a case like the present or even as applied to the State’s present view of what the rule exactly is. More importantly, it must also be conceded that in none of the cases in question did the decision turn on whether the Mexican (Spanish) rule was one other than “mean high tide.” In the first place, the Menard case and most of the others' repeatedly speak of the Mexican (Spanish) rule (or “civil law” rule, as they generally call it) in terms of “tide,” as distinguished from the State’s present emphasis on “waves” and “swells.” Moreover, they state the rule in terms of highest winter levels as if taking it from the Institutes, which, as we have stated, and as the State at one point seems to concede, is quite inconsistent with the language of the governing law, to wit, the partidas. The language used is general, neither the Roman law nor the partidas being quoted or even referred to in specific terms, still less analyzed in critical fashion. The Stat