Land Commissioner Dawn Buckingham
The Beaumont Court of Appeals has affirmed an Orange County district court’s judgment in favor of a property owner whose title to submerged land was challenged by the state.
Dawn Buckingham v. Edwin Arnaud, Inc. (No. 09-24-00142-CV; March 12, 2026) arose from a dispute between a property owner who contracted to place dredge spoils on submerged property within the boundaries of its land and the General Land Office. The GLO asserted its presumed ownership of submerged lands. The property owner filed this ultra vires trespass to try title suit. After a bench trial, the trial court ruled for the property owner. The land commissioner appealed.
In an opinion by Justice Wright, the court of appeals affirmed. Arnaud bought the subject property, which consisted of plugged oil wells, some roads and bridges, and some open water areas. Seeking to do wetland mitigation and contract with an oil and gas or other entity for migration credits, he worked under a Total permit to place dredge spoil on a 40-acre tract and planted the area with wetland plants. After waiting five years to see if the project succeeded, he sought a permit for the project, which required notice to the GLO. GLO didn’t do anything, nor did they do anything when he performed a similar project for another person. But the third time was not a charm. During the permitting process GLO claimed ownership of the submerged land. On that project Arnaud agreed to lease the land from the state but not on the other two.
The land commissioner asserted that the evidence was legally insufficient to support the trial court’s finding that subsidence was the sole cause of the submergence of the subject property by virtue of oil, gas, and saltwater production from the Rose City Oil Field between 1950 and 2002. She further argued that the trial court erred by applying the producing cause standard (substantial factor + “but-for” cause) rather than the higher “sole cause” standard. A property owner may rebut the presumption of state ownership “by showing that the land became submerged due to subsidence caused by the production of oil, gas, and water” (citations omitted). In this case, Arnaud’s expert, an emeritus professor at UT Austin, testified that “absent oil and gas production on the property, the surface would have subsided about two inches, as opposed to the six and one-half feet of subsidence he measured.” The trial court thus “acted within its discretion as the fact-finder when it concluded that, but for the additional subsidence due to oil, gas, and groundwater production, the surface would not have subsided enough to allow saltwater encroachment over the surface of the property.”
Additionally, the trial court “excluded other plausible causes, such as erosion, eustatic sea level rise, and substrate compaction, either individually or in combination, as producing cases of the submergence.” When all of those possible producing causes are excluded, the sole producing case was subsidence. “We therefore conclude,” the court held, “that since reasonable and fair-minded people could reach the decision under review, the evidence is legally sufficient under the producing case standard.” So whether the court applied a sole cause or producing cause standard, the outcome would be the same.
The commissioner asserted further than Arnaud’s claim was barred by limitations (three years for a suit to recover real property held by another in peaceable and adverse possession). The court treated this issue as one of legal and factual sufficiency, so the commissioner has to provide that the evidence conclusively established “all vital facts in support of the finding sought by the party.” The commissioner failed to do that. According to the record, the court observed, title to the property passed from land grants issued by the Republics of Texas and Mexico all the way down to Arnaud. This evidence defeated the commissioner’s assertion that the state held the property under color of title.
